.Jxm   MATTOX                          August 31, 1990
*mRNEY          DEXYgRAL


            Honorable Mike Driscoll           opinion No.   JM-1215
            Harris County Attorney
            1001 Preston, Suite 634           Re:   Whether a commissioners
            Houston, Texas   77002            court may prescribe   a pre-
                                              vailing wage for certain con-
                                              tracts, and related questions
                                              (RQ-1977)

            Dear Mr.       Driscoll:

                 You ask the following three       questions   about    county
            contracting practices:

                       May Commissioners   Court prescribe  a pre-
                       vailing wage for public works and non-public
                       works contracts?

                       May Commissioners  Court require contractors
                       and subcontractors performing such contracts
                       to provide their employees with       certain
                       fringe benefits (i.e., health and hospitali-
                       zation insurance and vacation leave)?

                       May the Commissioners     Court require     an
                       independent contractor to.hire personnel   who
                       understand  and speak    English and     whose
                       assignment is subject to the approval of the
                       County?

                 While you ask w     a commissioners  court prescribe  a
            prevailing wage for public works contracts, we believe that
            article 5159a, V.T.C.S., recuires the court to determine and
            pay prevailing   wages on public works contracts.       That
            statute reads, in pertinent part, as follows:

                       The public body awarding any contract     for
                       public work on behalf of . . . any county
                       . . . shall ascertain the general prevailing
                       rate of per diem wages in the locality     in
                       which the work is to be performed for each
                       craft or type of workman or mechanic  needed




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Honorable Mike Driscoll - Page 2 (JM-1215)




        to execute the contract, and shall specify in
        the call for bids for said contract, and in
        the contract    itself, what    the   general
        prevailing rate of per diem wages in the said
        locality is for each craft or type of workman
        needed to execute the contract. . . .

V.T.C.S. art. 5159a, .@2.

     The plain language of that provision      requires the
commissioners court to ascertain prevailing wage rates for
public works contracts. The provision also requires the
county to specify those rates both in the call for bids and
in the contract itself.    Attorney General Opinion   JM-329
(1985).

     All county contracts requiring an expenditure of more
than $10,000 are governed by the County purchasing Act, now
codified at subchapter C of chapter 262 of the Local Govern-
mcnt Code. That subchapter requires that such contracts   be
submitted to competitive  bidding but does not require the
payment of local prevailing wages.

     Counties may do only     those things that they are
authorized to do, either expressly or by necessary   implica-
tion. mles      v. Lauahlin   214 S.W.Zd 451    (Tex. 1948):
Anderson v. Wood, 152 S.W:2d 1084    (Tex. 1941); Ehildress
Countv v. State 92 S.W.2d 1011     (Tex. 1936).    While the
legislature has 'required that counties determine    and pay
local prevailing wage rates on public works contracts,     it
has made no such requirement  in regard to other contracts.
As noted above, chapter 262 does not require the payment   of
prevailing wages generally.    Nor do we find any other
statute that expressly requires or necessarily implies that
the commissioners court establish prevailing wage rates for
contracts other than public works contracts.

     We believe, in fact, that prescription of prevailing
wages relative to contracts   outside the scope of article
5159a would contravene the express intent behind chapter 262
that contracts  be permitted  on the basis of competitive
bids. Of course,    independent  contractors  may still be
subject to other state and federal laws governing     wages.
See, 29 U.S.C.  !j206 (federal minimum wage law): V.T.C.S.
art. 5159d (Texas minimum wage law).

     You next ask about fringe benefits.   This office has
recently reaffirmed a 1974 opinion that considered  article
5159a and concluded    that '*a public body may properly




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Honorable Mike Driscoll - Page 3   (JM-1215)




consider 'fringe benefits' in determining a prevailing  wage
rate for a particular locale."    Attorney General Opinions
JM-1164 (1990), H-350 (1974).    Thus, we believe   that if
the commissioners court determines   that local prevailing
practice  includes certain   fringe benefits,   those   same
benefits must be included in public works contracts governed
by article 5159a.

     With regard to your question concerning fringe benefits
for non-public work, a specification requiring the adoption
thereof must be directly related to the work performed.
JM-1213 (1990).

     Next, you ask about the county's authority to impose an
English language requirement on the employees of an in-
dependent contractor  who provides   security personnel   or
janitorial services to the county. Further, you ask whether
the county can approve      the assignment   of   individual
employees.

     Section 262.025 of the Local G&ernment    Code requires
publication of notice of the call for bids, including    "the
specifications describing the item to be purchased."    Local
Gov't Code 5 262.025(b)(l).  The term 10item8'in that statute
includes a service. Local Gov't Code 8 262.022(4).      Thus,
the competitive bidding provisions  of chapter 262 apply to
contracts for the services of security guards and janitors.

     The leading Texas competitive bidding case is Texas
Hiahwav Comm'n v. Texas Ass'n of Steel Imnorters. Inc., 372
S.W.Zd 525 (Tex. 1963). In that opinion, the Supreme    Court
gave distinct,   emphatic  instruction on the manner       of
drafting contract specifications to avoid the possibility of
limiting competition:

        Matters of quality should be fixed by quality
        specifications and not by proscriptions    as
        to localities   of manufacture   or fabrica-
        tion . . . .    Why should not the      term,
        "steel, free from rust" be used instead of
        "domestic steel" if that is the quality that
        is desired in re-enforcing materials used in
        highway construction?

Id. at 529.   The court found that the highway   commission
rule requiring domestic  steel violated the mandate of the
competitive bidding statute.




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Honorable Mike Driscoll - Page 4     (JM-1215)




     Whether a certain specification is directly related to
the work to be done is a fact question.  You do not suggest
any reason, however,  that any or all janitors    need to be
proficient in English, or any other language. The communi-
cations skills required of security guards must be specific
job requirements.    See 1s~    Attorney  General    Opinions
JW-881 (1988) (specifica&on' that 25% of work must be
performed  by contractor's   employees violates     statute):
WW-139 (1980) (specification that automobiles be domesti-
cally manufactured violates statute): H-1219 (1978) (speci-
fication that printing be done by union printers violates
statute); H-1086 (1977) (limiting award on basis of bidder's
domicile violates statute).

      Your final concern, regarding the county's approval      of
the assignment of employees to specific work areas, arises
from an incident wherein an employee of a contractor          was
assigned to clean the office of an assistant             district
attorney who was assigned to prosecute the employee in a
criminal case. We believe fhat the county has the authority
to ensure the efficient operation of its criminal         justice
system. See. e.a      Local Gov't Code 5 291.001        (duty of
commissioners court to provide public buildings): Gov't Code
§ 41.107   (authority for commissioners      court to provide
offices for county and district       attorneys);   Anderson   v.
k?Qg,  152 S.W.Zd  1084  (Tex. 1941)   (duty to provide    public
buildings includes duty to keep them habitable);       see also,
Tex. Const. art. V, 5 21; -Derd        . Alan&    303 S.W.2d 646
(Tex. Civ. App. - San Antonio        1;57, no writ)     (duty of
prosecuting   attorneys to investigate      and prosecute     all
violations of criminal laws).

     The proposed janitorial contract, which was filed with
your request, contains a provision requiring the contractor,
prior to starting the work, to submit to the county's   con-
tracting officer (or his representative) Ita plan on which
all daily cleaning assignments     are identified to each
employee (position), including schedule items and policing."
Another provision allows the contracting officer's represen-
tative, in the exercise of reasonable discretion, to object
to a particular employee and have that individual reassigned
and replaced.    We believe    that these provisions     are
reasonably related to the quality of the work to be done and
provide a reasonable method of safeguarding the operation of
the county's criminal justice system.

     Finally and in specific regard to security personnel,
we note that a "guard company" or a "security       services
contractor" must be licensed under section 13(a) of article




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Honorable Mike Driscoll - Page 5     (JM-1215)




4413(29bb), V.T.C.S.  Security personnel of a guard company
must be commissioned if they carry firearms, ie, § 19(a), or
registered if they do not, ia, 5 32(a). Both types of
employees and the company owner are subject to the approval
of local law enforc'ement authorities.     Id. 55 15(a) (91,
19 (9) I 33(c).  A specification   that a bidder and its
employees be licensed, certified,  or registered under that
act would be directly related to the work to be done and may
well satisfy the security concerns of the prosecuting
attorneys.

                       SUMMARY
           A commissioners   court must    determine,
        require and pay local prevailing wage rates,
        including fringe benefits, on public works
        contracts.  They may not require the payment
        of local prevailing wages on other contracts.
        Contract specifications   must be    directly
        related to the work to be done.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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