                               ‘The Attorney           General of Texas
                                                 December 23, 1982
MARK WHITE
Attorney General


                               Honorable Tim Curry                     Opinion No. MW-530
Supreme Court Building
                               District Attorney
P. 0. BOX 12546
Austin. TX. 76711. 2546
                               Tarrant County Courthouse               Re:    Whether   contract   for
5121475-2501                   Port Worth, Texas   76102               services of a      construction
Telex 9101674-1367                                                     manager   is   excepted    from
Telecopier   512/475-0266                                              competitive bidding require-
                                                                       ments of article 2368a. V.T.C.S.
1607 Main St., Suite 1400
Dallas, TX. 75201-4709         Dear Mr. Curry:
2141742-6944
                                    Article 2368a. V.T.C.S., requires counties to take competitive
4624 Alberta Ave., Suite 160
                               bids on "any contract calling for... an expenditure... in an amount
El Paso, TX. 79QO52793         exceeding [$5,000.001." Sec. .2(a). The statute contains a number of
915(533-3464                   exceptions, however. You have asked whether a contract for the
                               services of a "construction manager" who oversees various public
                               building projects is within any of these exceptions.
1220 Dallas Ave., Suite 202
Houston, TX. 77002-6986
7131650-0556                        Among other things, contracts for "personal or professional
                               services" are excepted from the competitive bidding requirements of
                               article 2368a. Sec. 2(b). In the course of concluding that the Board
806 Broadway. Suite 312        of Trustees of Galveston Wharves had to solicit bids on a contract for
Lubbock, TX. 79401-3479
                               the services of a container terminal operator, Attorney General
SOS/747-5236
                               Opinion MW-344 (1981) dealt at some length with the question of what
                               constitutes a "personal service" within the meaning of this statute.
4303 N. Tenlh, Suite S         There, we observed that in Van Zandt V. Fort Worth Press, 359 S.W.2d
McAllen. TX. 76501-1665        893 (Tex. 1962), the Texas Supreme Court quoted with approval the
5121662.4547
                               following statement of the Supreme Court of Utah:

200 Main Plaza. Suite 4W                The term 'personal service' indicates that the
San Antonio, TX. 76205.2797             'act' done for the benefit of another is done
5121225-4191
                                        personally by a particular individual. (Emphasis
                                        in original).
An Equal Opportunity/
Affirmative Action Employer    359 S.W.2d at 895, quoting from Creameries of America, Inc. v.
                               Industrial Commission, 102 P.2d 300, 304 (Utah 1940). The court also
                               observed that Webster's Third New International Dictionary defines
                               "personal services" as follows:

                                         economic service involving the either intellectual
                                         or manual personal labor of the server rather than
                                         a salable product of his skill.




                                                           p.   1917
Honorable Tim Curry - Page 2   (MW-530)




Webster's ~ThirdNew International Dictionary 1687 (1961).

       Van Zandt involved a suit by a newspaper to recover amounts due
for advertising services. One of the theories of recovery advanced in
that case was that advertising services are "personal services" within
the meaning of article 2226, V.T.C.S.. which authorized the recovery
of attorneys   fees therefor. After making the foregoing observations,
among others, the court held against the newspaper, but it did so
because of the particular facts of the case. It held that, although
the newspaper's employees undoubtedly rendered "personal services,"
the cause of action was for something far more inclusive --
"advertising services" -- and that those services embraced not merely
personal services, but profit, taxes, insurance and other items as
well.

     Attorney General Opinion MW-344 also cited Radio KOKE, Inc. V.
Tiemann, 378 S.W.2d 952 (Tex. Civ. App. - Austin 1964, writ ref'd
n.r.e.), wherein the plaintiff sought attorneys fees under article
2226 in a suit to recover the cost of moving household goods. We
discussed the court's reasoning in that case as follows:

          The court said that attorneys fees might have been
          recoverable on that portion of the contract
          attributable to employees' wages. if the wages had
          been separately itemized. But when no itemisation
          is made and the use of machinery and equipment is
          part of the cost of the contract, the contract is
          one   for   'personal services' only      if   the
          contribution of the machinery to total cost is
          substantially less than the contribution of
          employee wages. As an example of a contract that
          could not be considered one for personal services,
          the court suggested the operation of a loo-car
          freight train by a crew of three or four men. The
          employment of a laborer to dig a ditch using his
          own pick and shovel, on the other hand, is clearly
          a contract for personal services.

We concluded:

          In our opinion, these two cases indicate clearly
          that a contract to operate container terminal
          facilities, which operation you have described as
          complex and technical, cannot reasonably be
          described as one for 'personal services.' Even if
          a large portion of the contract price is assigned
          to labor costs, the total contract amount will
          certainly include costs ascribable to taxes and




                               p. 1918
Honorable Tim Curry - Page 3   (MW-530)




          insurance as well as the operator's anticipated
          profit.

     You inform us that the duties of a construction manager include:
(1) representing the county during construction and until final
payment to all contractors is due; (2) advising and consulting with
the county; (3) overseeing, scheduling and coordinating the work of
contractors; and (4) reviewing applications for payment by contractors
and making final recommendations to the architect for certification
for payment. In our opinion, these are "personal services" within the
meaning of article 2368a.      They are performed personally by a
particular individual for the benefit of another. _See Van Zandt V.
Fort Worth Press, supra. They involve either the intellectual or the
manual personal labor of the server rather than a salable product of
his skill. Id. Other variables that account for the courts' holdings
in Van Zandt, supsa, and Radio KOKE, Inc. V. Tiemann. supra, and our
holding in Attorney General Opinion MW-344. such as machinery,
equipment, overhead, taxes, insurance, the involvement of others,
etc., are not present in this instance; the labor of one individual --
the construction manager -- is all that is being offered and
purchased.

     In our view, these are the kinds of services that the courts in
the cases discussed above had in mind when they offered their examples
of instances in which "personal services" would be involved. We also
believe that the reasoning of the court in Hunter V. Whiteaker and
~~~~~~:~;,,i',",,"b;"s~~~~~~~~~"
                            (Tex. Civ. App. - San Antonio 1921, writ
                            There, the court addressed the question of
whether a contract to employ civil engineers to supervise the work of
building roads in a county was subject to competitive bidding. The
court answered in the negative, and the reasons it offered for
exempting such services from bidding requirements are also applicable
here:

          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... only through competitive bidding would
          give a ridiculous meaning to the act.... 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
          conceived for obtaining the services of the least
          competent man.... (Emphasis added).




                                p. 1919
Honorable Tim Curry - Page 4    (MW-530)




230 S.W. at 1098. See Gulf Bitulithic Company V. Nueces County, 11
S.W.2d 305 (Tex. Co&     App. 1928) (contract for supervision of road
construction work not subject to competitive bidding requirements
under former article 2268a. V.T.C.S.).

     We therefore conclude that a contract for the services of a
construction manager is within the "personal services" exception to
article 2368a and therefore need not be let on competitive bids. Our
conclusion renders unnecessary a discussion of whether such contract
is also within the "professional seTvices" exception to article 2368a.

                               SUMMARY

            A contract for the services of a construction
         manager   is within    the   "personal   services"
         exception to article      236th. V.T.C.S., and
         therefore need not be let on competitive bids.

                                         m-.cxs'              ,


                                                       ad?
                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Bus Gary
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




                                     p. 1920
