Untitled Texas Attorney General Opinion

.
The Attorney General of Texas
JIM MATTOX Nay 9, 1984
Attorney General
Supreme Cowl Building Mr. Ron Jackson Opinion No. JM-155
P. 0. BOX 12548 Executive Director
Austin. TX. 7571% 254s
512/47w5o1 Texas Youth Council lk: Whether the Professional
Telex SlwS74.1S57 P. 0. Box 9999 Services Procurement Act pre-
Telecopier 51214750288 Auetin. Texas 78766' eludes an inquiry into archi-
tectural or engineering fees
714 Jackeon. Suite 700
Dallas. TX. 75202-4505 Dear Mr. Jackson:
21417428944
You inform us that the Texas Youth Comission has developed a
questionnaire which you intend to submit to architects and engineers
4824 Alhla Ave.. Sulte 160
being considered for -employment by your agency. The questionnaire
El Paso. TX. 79905-2783
Bly5333uu elicits information regarding professional fees which engineers or
architects vould find appropriate for the project being considered.
You ask us txio questions. First, you ask
11 Texas. Suite 700
Aiston. TX. 77002-3111 [e]hould‘the Professional Servfces Procurement Act
713Q2M555
be ,interpreted to prohibft the inclueion of the
following question in the proposed Texas Youth
SO5 Broadway. Suite 312 Commission Architect/Engineer Questionnaire:
Lubbock. TX. 784013479
Sw747-5238 ,Question A 2.12: Tltere~ are maximum ceilings for
prof&eional eerrrices fees this agency can pay.
4SOQN. Tenth, Suite B -What' ~would you consider to be x fair aad
McAllen. TX. 75501.1555 :~easc&ile-~.fee' providing complete architectural
512m52-4517 _ -: L, iiii&':-~:ei@necriig services (programing through
knrtn&ti``~ ,ol+ervition to .include one-year
200 MaIn P&a, Sulb 400 -~I~ ~;~ollortip,~ipap&ction)
.,~ for this project?
San Antonlo. TX. 782052797
512/225.4101 Wlth.~our.eecood:quCCtian~ yo@~sk:~
,., .: ~,.'~
I
- .'.iIf ~,~tk ...M&,r to
[the first .questionl is
An Equal Opportunity/
Afflmuttw ActIon Employer
.affirmative. vbat-meam are appropriate for making
aucb.informetion avail&la for consideration In
, I ' sele&tion of in architect,or engineer?
* ::
We ctinclude.:,,``first. 'r&t: 'art&r ‘S64-4, V.T.C.S. (Professional
.Services'Prbcurement Act). [hereinafter "the Act!']. does g prohibit
the inclusion of i question decligned to lliclt,lnformation regarding
fair land 'reasonable fees or cost estimates. Because we answer your
p. 682
Mr. Ron Jackson - Page 2 (JM-155)
first question in the negative, we need not answer your second
question.
Article 664-4, V.T.C.S.. provides the following:
Section 1. This Act shall ‘be known end may be
cited as the “Professional Services Procurement
Act.”
Sec. 2. For purposes of this Act the term
“professional services” shall mean those within
the scope of the practice of accounting,
architecture, optometry, medicine or professional
engineering as defined by the laws of the State of
Texas or those performed by any licensed
architect, optometrist, physician. surgeon,
certified public accountant or professional
engineer in connection with his professional
employment or practice.
Sec. 3. No state agency, political sub-
division, county, municipality; district,
authority or publicly-owned uiility of the State
of Texas shall make any contract for, or engage
the professional services of, aoe licensed
physician, optometrist, eurgeon. architect,
certified public accountant or registered
engineer, or any group or association thereof,
selected ou the basis of competitive bids
submitted for such contract or for such services
to be performed, but shall select and award such
contracts and engage such cervices on the basis of
damonstrated competence and qualifications for the
type of professional services to be performed and
.
_‘Sec. 4,: Anyand all s,vFh cmtracts, agreements
or ‘~arrangamente for professional t3ervices
negotiated, ,made or entered into, jirectlp or
indlrecUy. by any’ agency or department’ of the
State .of Texas;‘: county, municipality, political
subdivision. district, authority or publicly-owned
-utility in any way in violation of the provisions
of this Act or any part thereof are hereby
Mr. Ron Jackson - Page 3 (Jh-155)
declared to be void as contrary to the public
po:icy of this State and shall not be given effect
or enforced by any Court of this State or by any
of its public officers or employees. (Emphasis
added).
We are required to interpret a statute in a way
which expresses only the will of the makers of the
law, not forced nor strained. but simply such as
the words of the law in their plain sense fairly
sanction and will clearly sustain.
Railroad Cdssion of Texas v. Miller. 434 S.W.2d 670. 672 (Tex.
1968). quoting Texas Highway Comiesion v. El Paso Building and
Construction Trades Council, 234 S.W.2d 857 (Tex. 1950).
The clear ‘terms of the Act itself do not merely permit the
consideration by the agency of the fees charged for certain
professional services, but require it. While the Act expressly
prohibits the awarding of contracts for certain professional services
on the basis~ of competitive bids, it clearly requires an agency to
award such contracts “on the basis of demonstrated competence and
qualifications for the type of professional services to be performed
and at fair and reasonable prices.” V.T.C.S. art. 664-4. 53 (emphasis
added). Section 3 goes on to require that such professional fees be
“consistent with and not higher than the published recommended
practices and fees of the various applicable professional associations
and do not exceed the maximumprovided by any state law.” Therefore,
the Imposition of fees must be one factor considered by any agency in
awarding a contract for such professional services; however. it cannot
be the & factor to be considered. Section 8 of Acts 1971, 62nd
Legislature. chapter 30, page 73,:the emergency provision of the Act,
contains the following language, detailing the public policy
considerations prompting the passage of the Act:
The fact that the selection of certified public
accountants. architects. nhvsicians. ontometrists.
surgeons and professionai engineers on the basis
of the lowest bid places a premium on lncompekence
and is the moat likely procedure for selecting the
least able or qualified and the most incompetent
practitioner for the performance of services
vitallv affectinn the health. welfare and safety
of th; public &d that, in spite bf repeated
expressions of the legislature excepting such
professional services from statutes providing for
competitive bidding procedures. some public
officers continue to apply competitive bidding
p. 604
Mr. Ron Jackson -'Page 4 (JM-155)
procedures to the selection of such professional
personnel, creates an emergency of the gregtest
public importance to the health, safety and
welfare of the people of Texas . . . . (Emphasis
added).
Accordingly, we answer your first question in the negative. As a
result, we need not answer your second question,
SUMMARY
Article 664-4. V.T.C.S., (the Professional
Services Procurement Act). does not prohibit the
inclusion on a questionnaire submitted to
engineers or architects being considered for
employment of any question designed to elicit
information regarding professional fees which such
engineers or architects would find appropriate for
the project being considered.
J-h
Very truly you
.
-
J 1M MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION CGMHITTEE
.
Rick Cilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 685