.




                                  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




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