Case Information

*1 The Attorney General of Texas Nay 9, 1984 JIM MATTOX

Attorney General

Supreme Cowl Building Mr. Ron Jackson Opinion No. JM-155 P. 0. BOX 12548 Executive Director Austin. TX. 7571% 254s lk: Whether the Professional Texas Youth Council 512/47w5o1 Services Procurement Act pre- P. 0. Box 9999 Telex SlwS74.1S57 eludes an inquiry into archi- Auetin. Texas 78766' Telecopier 51214750288 tectural or engineering fees 714 Jackeon. Suite 700 Dear Mr. Jackson: Dallas. TX. 75202-4505 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 elicits information regarding professional fees which engineers or Bly5333uu 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 in the proposed Texas Youth Commission Architect/Engineer Questionnaire: SO5 Broadway. Suite 312 Lubbock. TX. 784013479 Sw747-5238 ,Question A 2.12: Tltere~ are maximum ceilings

prof&eional eerrrices this agency can pay. -What' ~would you consider to be x fair aad 4SOQ N. Tenth, Suite B :~easc&ile-~.fee' providing complete architectural McAllen. TX. 75501.1555 512m52-4517 _ -: L, iiii&':-~:ei@necriig (programing through

knrtn&ti~~~ ,ol+ervition .include one-year -~I~ ~;~ollortip,~ipap&ction) for this project? .,~ 200 MaIn P&a, Sulb 400 San Antonlo. TX. 782052797 512/225.4101 Wlth.~our.eecood:quCCtian~ yo@~sk:~ ,., .: ~, .'~ I - .'.iIf ~,~tk ...M&,r [the .questionl is An Equal Opportunity/ .affirmative. vbat-meam are appropriate for making Afflmuttw ActIon Employer 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 l liclt,lnformation regarding fair land 'reasonable fees or cost estimates. Because we answer your *2 Mr. Ron Jackson - Page 2 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 shall mean those within “professional services” the practice of accounting, scope of optometry, medicine or professional architecture, engineering as defined by the laws of the State of licensed Texas or those performed any physician. surgeon, architect, optometrist, public accountant or professional certified engineer in connection with his employment or practice.

Sec. 3. No state agency, political sub- municipality; division, county, district, authority or publicly-owned uiility of the State of Texas shall make any contract for, or engage of, aoe licensed the professional physician, optometrist, eurgeon. architect, accountant or registered certified or any group or association thereof, engineer, selected ou the basis of 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 to be performed and

_‘Sec. 4,: Anyand all s,vFh cmtracts, agreements or ‘~arrangamente t3ervices negotiated, ,made or entered into, jirectlp or indlrecUy. by any’ agency or department’ of .of Texas;‘: county, municipality, political State subdivision. district, authority or publicly-owned -utility in any way in violation of the provisions this Act or any part thereof are hereby *3 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.

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 Construction Trades Council, 234 S.W.2d 857 (Tex. 1950).

The clear ‘terms of the Act itself do not merely permit the consideration the agency of the charged for certain 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 V.T.C.S. art. 664-4. 53 (emphasis and at fair and reasonable prices.” 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 maximum provided 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 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 least able or qualified and the most incompetent practitioner the performance of

vitallv affectinn the health. welfare and safety of th; public &d that, in spite bf repeated expressions legislature excepting such from statutes providing bidding procedures. some public officers continue to apply competitive bidding *4 Mr. Ron Jackson -'Page 4

procedures to the selection of such professional personnel, creates an emergency of the gregtest importance the health, safety welfare of the people of Texas . . . .

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 inclusion on a questionnaire submitted engineers or architects being considered employment of any question designed to elicit information regarding professional fees which such engineers or architects would find appropriate the project being considered.

Very truly you J-h . - J 1 M 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