         THE       ATTORNEY    GENERAI-
                      OF TEXAS



                      April 11, 1988



Honorable Bill Turner                Opinion No. JR-890
Brazos County Courthouse
300 E. 26th Street, Suite 310        Re: Whether a contract for
Bryan, Texas 77803                   microfilming of records of
                                     county clerks office     is
                                     subject    to  competitive
                                     bidding (RQ-1280)

Dear Mr. Turner:

     You ask:

       [Wlhether the use of a private company to
       microfilm records  for the County Clerk's
       Office of Brazos County must comply with the
       competitive bidding requirements   of Local
       Government   Code, Sec. 262.021 et     se .,
       County Purchasing Act, or whether said item
       is a personal or professional service under
       Sec. 262.024(4), suvra, and thus need not be
       competitively purchased.

     You describe such services as follows:

          The County Clerk has contracted with a
       company in    Dallas to    microfilm    legal
       instruments  filed in the county clerk's
       office. The company furnishes the county
       clerk with a camera,    film, and provides
       maintenance for the camera. Every day the
       county clerk microfilms    the    instruments
       filed in his office. At the end of each day
       he splices the film and sends it to the
       company in Dallas where it is developed.
       The company makes an archival print of the
       film which it keeps and returns the original
       microfilm back to the county clerk's office.
       The company also makes     indices of     the
       clerk's records, binds the indices and sends
       it to the county clerk's office. The annual




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Honorable Bill Turner - Page 2      U-M-890)




       cost for this service is slightly more        than
       $100,000.
                                                                   -,
Section 262.023(a) of the Local Government Code provides
that, for county contract purchases requiring expenditures
over $5,000, the commissioners court "must comply with the
competitive~ bidding or competitive   proposal  procedures
prescribed by this subchapter.11

     Section 262.024 of the Local Government       Code provides
in pertinent part:

          (a) A contract for the purchase of any of
       the following    items is exempt     from the
       requirement established   by section   262.023
       if the commissioners   court by order grants
       the exemption:

          .   .   .   .

          (4) a personal or professional       service.

     The "personal or professional     service"  exception
currently  codified  as   section 262.024(a)(4)    remains         --,
substantially  unchanged  from   that in the     section's
predecessor provisions, article 2368a.5, section  4(a)(4),
V.T.C.S. (Acts 1985, 69th Leg., ch. 641, 51, at 2377) and
article 2368a, section 2, V.T.C.S. (Acts 1931, 42nd Leg.,
ch. 163, at 270-71).

     Prior to the codification     of the "personal
professional service" exception  in 1931, the competitizz
bidding statute provided the sole statutory exception   to
its operation for "work done under the direct  supervision
of the county commissioners   and paid  for by the day."
V.T.C.S. art. 2368 (Acts 1923, 38th Leg., ch. 127, at 262,
repealed by Acts 1931, 42nd Leg., at 269); and V.T.C.S
art. 2368a (Acts 1917, 35th Leg., ch. 141, 51, at 349,
repealed in part by Acts 1987, 70th Leg., ch. 149, 549(l),
at 2545). Hunter et al v. Whiteaker & Washington et al,
230 S.W. 1096   (Tex. Civ. APP. - San Antonio 1921, writ
ref'd) considered    the latter statute as applied      to
engineering services:

          There is but one question of law in this
       case, and that is whether a commissioners'
       court has the legal power and authority   to
       enter into a contract with engineers     for
       their technical and professional services in
       connection   with   the   construction   and




                          p. 4357
    Honorable Bill Turner - Page 3 W-890)




           maintenance of public highways and roads in
           their county, without advertising for compe-
           titive bids' for such services.

              .   .   .   .

              To hold that the act would require that
           the services of a man belonging       to   a
           profession such as that of the law, of
           medicine, of teaching, civil engineering, or
           architecture should be obtained by a county
           only through competitive bidding would give
           a ridiculous meaning to the act, and require
           an absurdity.

              .   .   .   .

              Such a construction   would require the
           selection of attorneys, physicians,   school
           teachers, and civil engineers by competitive
           bids, the only test being the lowest bid for
           the services of such men. Such a test would
           probably be the best that could be conceived
           for obtaining the services of the least
           competent man, and would be most disastrous
           to the material interest of a county.

              Civil engineering    is   a    profession,
           requiring years of education and service to
           obtain perfection in it, and calling, in its
           application, for a high order of intelli-
           gence and extraordinary skill and learning,
           and it was never contemplated by the Legis-
           lature that the money of the citizens of a
           county, raised for road purposes, should be
           expended upon the advice of a civil engineer
           who had obtained his employment by underbid-
           ding his competitors, and without regard to
           his ability to fill the position.

    Id. at 1097-98.

         Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d    305
    (Tex. Comm’n  App. 1928, judgm't adopted) ruled on the
P   applicability  of the competitive    bidding  requirements
    imposed by article 2368a, to the services of a company
    engaged by the county to supervise the construction      of
    county roads. Stressing that the county itself directly
    paid the cost of labor and material for the projects,  and
P   that "[t]he company was not employed as contractor       or



                              p.   4358
Honorable Bill Turner - Page 4 (JM-890)




materialman but as agent" the court, in holding    such
services within the "personal or professional services"
exception, reasoned as follows:

          To   hold   that    contracts for    the
       suvervision of work done directly by the
       county must be let to the lowest bidder
       would result in the county obtaining the
       least competent     supervision, as   those
       possessing the necessary skill, experience,
       and business judgment to supervise a large
       construction program in the most efficient
       and economical manner could not hope to
       successfully compete with those of lesser
       skill, experience, or business judgment.
       (Emphasis added.)

&   at 309.

      all c      0 issioner    Court of Madison Co ., 281
S.W. t93 "(Gez: &?    App. -' Waco 1926), m     on other
arounds, 15 S.W.Zd 535 (Tex. 1929), considered a county
contract with a company for various services such as
making abstracts of property upon which taxes        were
delinquent, making a map and plat system or block map of
all land in the county, surveying where necessary      br
agreed, and making reports of such to the commissioners
court, and held that:

          Some of the things embraced in the con-
       tract in this case would perhaps require
       technical knowledge and some would not, and
       those that do not would be controlled by
       [the competitive bidding requirements   of]
       said statute.

L   at 595.

     Attorney General Opinion MW-344    (1981) pointed  out
that the pre-1931 cases established an exception        for
services involving "special skills," but that the language
of the exception adopted in 1931 for "personal           or
professional services" does not on its face appear to be a
mere codification of that prior court-created exception.

     "Personal services@' in its ordinary meaning,     for    -
example, would include other sorts of services than only
those involving "special skills."      Recently, Attorney
General Opinion JM-486 (1986), in seeking to elucidate the
scope of the personal SeNice    exception, referred to a      ?




                         p. 4359
      Honorable Bill Turner - Page 5     (JM-890)




      definition of personal services developed by Van Zandt v.
      Port Worth Press, 359 S.W.2d 893 (Tex. 1962) which had
-     considered the applicability   of a statute providing   for
      recovery of attorneys fees by persons "having a valid
      claim . . . for personal    services rendered."    Attorney
      General Opinion JM-486 concluded with respect to the
      question of the applicability   of the competitive  bidding
      statute to janitorial services:

                Someone who claims to have        rendered
             'personal services' must have performed   the
             services himself. The claimant's employees,
             in contrast, may have rendered    'services.'
             If the contract you ask about requires      a
             specific person    to   perform    janitorial
             services, it is a contract      for personal
             services.  If the contract merely requires a
             person or corporation to provide persons who
             will perform janitorial services, it is not
             a contract for personal services.

           It is our opinion that the microfilm services which
      are the subject of your request are not           "personal
.c,   services" within the scope of section 262.024(a)(4) of the
      Local Government Code, because from your description     of
      such services they are not to be rendered by a person    or
      persons chosen specifically by the commissioners     court,
      but rather by personnel of the service company, many or
      most of whom are unknown to the commissioners.

           The next question is:      Are the microfilm    services
      "professional services?" Webster's     definitions of "pro-
      fessional" range from "of relating to, or characteristics
      of a profession"    to "engaged in one of the learned
      professions" and "characterized    by or conforming to the
      technical or ethical standards of a profession."          The
      definition of profession     includes Ita calling   requiring
      specialized   knowledge  and    often long and      intensive
      academic preparation"   as well as 'Ia principal     calling,
      vocation,   or employment."      See Webster's    Ninth   New
      Collegiate Dictionary (1985).

           Black's Law Dictionary (5th Ed. 1979)     contains   the
      following entry under "profession":

                A vocation   or   occupation  requiring
             special, usually advanced, education   and
             skill: e.q. law or medical professions.
r            Also refers to whole body of such profes-
             sion.




                               p. 4360
Honorable Bill Turner - Page 6 (J?.-890)




          The labor and       skill involved  in     a
       profession   is   predominantly   mental     or
       intellectual,   rather    than  physical     or
       manual.

          The term originally    contemplated  only
       theology,   law,  and   medicine,   but
       applications of science and learning a::
       extended to other departments   of affairs,
       other vocations also receive the name, which
       implies professed   attainments   in special
       knowledge as distinguished from mere skill.

     Marvland Casualtv Co. v. Crazv Water Co., 160 S.W.Zd
102 (Tex. Civ. App. - Eastland 1942, no writ)   interpreted
the meaning   of "professionalV' services  as found  in an
insurance policy rider and found that the services of the
bath house operator policy holder were not "professional"
services, the labor and skill required for the latter
sorts of     services   being "predominantly    mental   or
intellectual, rather than physical    or manual."   Id. at
105. Marvland Casualtv Co. was cited in Attorney    General
Opinion MW-344 (1981), which held that a contract for the
services of a container terminal operator was not one for
"professional services."

     A more recent indication by the legislature as to the
present scope of the "professionall* service exception  it
created 57 years ago is found in two other sections of the
County Purchasing Act:

       5262.022.          Definitions

          In this subchapter:

          .   .   .   .

          (3) *High technology    item'       means  a
       service, equipment,  or good of        a highly
       technical nature, including:

              (A) data processing   equipment   and
          software and firmware used in conjunction
          with data processing equipment;

              (B) telecommunications,      radio,   and       ?
          microwave systems:


                                                              ?




                                 p. 4361
,
           Honorable Bill Turner - Page 7   (JM-890)

    P


                         (C) electronic    distributed   control
                     systems,    including    building    energy
                     management systems: and

                        (D) technical   services    related   to
                     those items.

           Local Gov't Code 5262.022.

                  5262.030. Alternative Competitive Proposal
                  Procedure for Insurance or High Technology
                  Items

                      (a) The competitive   proposal procedure
                  provided by this section may be used for the
                  purchase of insurance or high technology
                  items. Quotations must be solicited through
                  a request for proposals.   Public notice   for
                  the request for proposals must be made      in
                  the same     manner   as provided     in   the
                  competitive bidding procedure.   The request
                  for proposals    must specify the relative
                  importance of price and other evaluation
                  factors. The award of the contract shall be
                  made to the      responsible  offeror    whose
                  proposal is determined    to be the lowest
                  evaluated offer resulting from negotiation,
                  taking   into   consideration  the    relative
                  importance of price and other evaluation
                  factors set forth      in the request      for
                  proposals.

           Local Gov't Code $262.030.

                In providing for "high-technology items." a "competi-
           tive proposal"   procedure alternative   to the competitive
           bidding procedure   set out in the Act, section 262.030
           clearly contemplates that such high technology items are
           covered by the requirement of section 262.023 that certain
           items be purchased in compliance with the "competitive
           bidding  or    competitive   proposal    procedures."   The
           legislature therefore could not have considered such "high
           technology" items to be exempted      from the coverage   of
           section 262.023 by the provisions of section 262.024 which
           provide for the "personal or professional      service" and
    ,r-‘   other exceptions to the operation of section 262.023.

                It is our opinion that since the legislature intended
           such high technology items to be covered by the competi-
           tive bidding or competitive proposal requirements and not




                                     p. 4362
Honorable Bill Turner - Page 8     W-890)




to fall within  the section 262.024 exceptions, it would
not have considered the microfilm services     in question
here as exempted from coverage.    If services    requiring
such high skills and technical   expertise as "electronic
distributed control systems," "microwave systems," and the
other examples  of high technology    services   listed in
§262.022(3) are nevertheless  not "professional"   services
within the meaning of 5262.024(a)(4), then     it is clear
that the microfilm services which, from your description,
involve a lower level of technology, are not "professional
services."

     We conclude therefore that the microfilm services you
described  are subject to the competitive      bidding  or
competitive proposal requirements of the County Purchasing
Act, Local Gov't Code 5262.021, et sea.

                       SUMMARY

          A contract   for microfilm services does
       not fall within the "personal or profession-
       al service" exception of Local Government
       Code section 262.024, and therefore must be
       let under     the competitive   bidding    or
       competitive proposal procedures set forth in
       the County Purchasing Act, Local Government
       Code section 262.021, et sea.

                                    Very truly yodd
                                        I


                                    JIM
                                         ““~
                                   Lb+& hc  MATTOX            -
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN                                                       ‘7

Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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