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DAN MORALES                                      April 20,1992
 ATTORNEY
      GENERAL
     Honorable Mike Moncrief                            Opinion No. DM-106
     chairman
     General Issues Subcommittee                        Re: Whether services of auctioneers are
     Texas State Senate                                 “professional services” for purposes of laws’
     P. 0. Box 12068, Capitol Station                   governing the.. awarding of contracts by
     Austin Texas 78711-2068                            cities Andy counties, and related ques-
                                                        tions @Q-152)

     Dear Senator MoncrieE

            You have requested an opinion from this office regarding competitive
     bidding requirements affecting municipalities, as codified in Local Government
     Code section 252.021. That section provides in pertinent part the following:

                     (a) Before a municipality with 50,000 or more inhabitants
                 may enter into a contract that requires an expenditure of more
                 than $10,000 from one or more municipal funds, the
                 municipality must comply with the procedure prescribed by this
                 chapter for competitive sealed bidding or competitive sealed
                 proposals.

    The legal department of the City of Fort Worth maintains that a contract between
    the city and an auctioneering company for services rendered within the statutory
    amount must be awarded in accordance with this statute. You have requested our
    opinion as to whether such services would instead be exempt from the competitive
    bidding requirements as professional services under Local Government Code
    section 252.022(a)(4), providing that chapter 252 does not apply to certain
    expenditures, including “a procurement for personal or professional services.”

             This office has recognized in previous opinions that “professional services”
     may encompass more than the services of physicians, attorneys, or others
     traditionally regarded as “professionals.“1 See Attorney General Opinions JM-940

               ‘CjI V.T.C.S. art. 664-4 (professional Services Procurement Act, prohibiting governmental
     entities from procuring the servicea of architects, optometrists, certified public accountants, physicians,
     surgeons, and registered engineers on the basis of competitive bids).


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Honorable Mike Moncrief - Page 2                 @M-l 0 6 )




(1988) at 3 (citing Maryland Carual~ Co. v. Cmzy Waler Co., 160 S.W.2d 102 (Tex.
Civ. App.-Eastland 1942, no writ)); MW-344 (1981). Furthermore, opinions such as
Attorney General Opinion JM-1136 (1990) have demonstrated that determinations
as to whether particular services, other than those covered by the Professional
Services Procurement Act, V.T.C.S. art. 664-4, are professional services for
competitive bidding purposes, frequently involve fact questions that the opinion
process cannot address. See also Attorney General Opinion JM-1038 (1989); Letter
opinion No. 90-67 (1990).2

        In your case, the city of Fort Worth has made a determination, based upon its
understanding of the law and facts, that the auctioneering services at issue are not
professional services and must therefore be procured through competitive bidding.
We find nothing in the law that would preclude such a decision. More importantly,
the city could have decided to competitively bid the contract for auctioneering
services even if it had come to the opposite conclusion regarding the nature of the
services. Section 252.022 of the Local Government Code allows municipalities to
exempt professional services from competitive bidding requirements; it does not,
however, mandate that they do so. See Pattenv. Condo County.196 S.W.2d 833
(Tex. Civ. App.-Austin 1946, no writ) (if competitive bidding laws do not apply to a
particular county expenditure, commissioners court has discretion to determine
whether or not good management requires use of a competitive bidding process).
The only professional services that may not be competitively bid are those covered
by the Professional Services Procurement Act           That act does not refer to
auctioneering services.

        In conclusion, we believe that a municipality has discretion in the first
instance to determine whether particular services, other than those covered by
article 6644, V.T.C.S., are professional services for purposes of exemption from
competitive bidding requirements under Local Government Code section 252.022.
Moreover, we emphasize that Local Government Code chapter 252 serves to
require municipalities to competitively bid most procurement contracts; it does not
bar municipalities from competitively bidding even those projects that might
conceivably be exempt from chapter 252.


         me cited opinioluprevidc&mlcguidancefor delemlining whether particular services are
“profcMional’: iacluded as purveyors of “professioItal sclvias’ are “members of disciplioes rquiring
special knowledge or attainment and a high order of leamhg, skill, and intelligence.” Attorney General
Opinion JM-940 at 3. Furthemore, “several cases suggest that it comprehends labor sod skill that is
‘predominaotly mental or intellectual, rather thao phyaieal or manual.‘” Id (citingMe          (~JZIUI~
CompMy).


                                                p.   533
Honorable Mike Moncrief - Page 3       (DM-106 )




                                   SUMMARY

             The determination of the city of Fort Worth that
         auctioneering services are not professional services” for
         purposes of exemption from the competitive bidding require-
         ments imposed by Local Government Code chapter 252 is not
         contrary to law. Moreover, municipalities may procure services
         through a competitive bidding process even if such services
         qualify for an exemption under -Local Government Code section
         252.022, other than those services covered by article 664-4.
         V.T.C.S.




                                            DAN      MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RJSJEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith S. Steinberg
Assistant Attorney General




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