### THE ATTORNEY GENERAIOF TEXAS

April11,1988

Honorable Bill Turner Opinion No. JR-890 Brazos County Courthouse 300E. 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)

DearMr. Turner:

You ask:
[Wlhether the use of a private company to microfilm records for the County Clerk's Office of Brazos Countymust comply with the competitive bidding requirements of Local Government Code, Sec. 262.021 et se ., County Purchasing Act, orwhether said item isapersonal orprofessional 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 forthe camera. Every day the county clerk microfilms the instruments filed inhis 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 filmwhich itkeeps 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 itto the county clerk's office. The annual

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cost for this service is slightly more than $100,000.
Section 262.023(a) of the Local Government Code provides that, forcounty 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 inpertinent part:

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

. . . . (4)apersonal orprofessional 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 itsoperation for "work done under the direct supervision of the county commissioners andpaid forby the day." V.T.C.S. art. 2368 (Acts 1923, 38th Leg., ch. 127, at 262, repealed byActs 1931, 42nd Leg., at 269); and V.T.C.S art. 2368a (Acts 1917, 35th Leg., ch. 141, 51,at 349, repealed inpart byActs 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 isbut one question of law in this case, and that iswhether a commissioners' court has the legal power and authority to enter into a contract with engineers for their technical andprofessional services in connection with the construction and

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maintenance ofpublic highways and roads in their county, without advertising for competitive bids'for such services.

. . . . Tohold that the actwould 

### 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, 

### andcivil engineers by competitive bids, the only test being the lowest bid for the services of suchmen. Such 

### atestwould probably be thebest that could be conceived for obtaining the services of the least competent man, andwould bemost disastrous to thematerial interest of acounty.
Civil engineering is a profession, requiring years of education and service to obtain perfection in it,and calling, in its application, for ahigh order of intelligence and extraordinary skill and learning, and itwas never contemplated by the Legislature that themoney of the citizens of a county, raised forroadpurposes, should be expended upon the advice of acivil engineer who had obtained his employment by underbidding his competitors, andwithout regard to his ability to fill theposition.
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 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 andmaterial forthe projects, and that "[t]he company was not employed as contractor or

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

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

& at 309.
all c 0 issioner Court of **M** Co S.W. t93 "(Gez: &? App. -' adison ., 281 Waco 1926), m on other arounds, 15S.W.Zd 535 (Tex.1929), considered a contract with a county company forvarious services such as making abstracts of property upon which taxes were delinquent, making amap and plat system orblock map of all land in the county, surveying where necessary br agreed, andmaking reportsof such to the commissioners court, andheld that:

Someof the things embraced inthe contract in this casewould perhaps require technical knowledge and somewould not, and those that donot wouldbe controlled by [thecompetitive bidding requirements of] said statute.

L at 595.
Attorney General OpinionMW-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"doesnoton its faceappear to be a mere codification ofthatprior court-created exception.
"Personal services@' in its ordinary meaning, for - example, would includeother sorts of services than only those involving "special skills." General Opinion JM-486 (1986), Recently, Attorney inseeking to elucidate the scope of thepersonal SeNice exception, referred to a ?

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- definition ofpersonal services developed byVan Zandt v.

PortWorth 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, incontrast, may have rendered 'services.' Ifthe contract you ask about requires a specific person to perform janitorial services, it is a contract for personal services. Ifthe contract merely requires a person or corporation toprovide persons who will perform janitorial services, it is not acontract forpersonal services.

.c, It isour opinion that themicrofilm services which

are the subject of your request are not "personal services" within the scope of section 262.024(a)(4) of the Local Government Code, because from your description of such services they arenot to be rendered by aperson or persons chosen specifically by the commissioners court, but rather by personnel of the service company, many or most ofwhom areunknown to the commissioners.
The next question is: Are the microfilm services "professional services?" Webster's definitions of "professional" range from "ofrelating to, or characteristics ofa 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 Itacalling requiring specialized knowledge and often long and intensive academic preparation" aswell as 'Iaprincipal calling, vocation, or employment." See Webster's Ninth New Collegiate Dictionary (1985).
Black's Law Dictionary (5thEd. 1979) contains the following entry under "profession":

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

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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 asdistinguished frommere skill.
Marvland Casualtv Co.v. Crazv Water Co., 160 S.W.Zd 102 (Tex.Civ.App. -Eastland 1942, nowrit) interpreted themeaning 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 ormanual." Id. at 105. Marvland Casualtv Co.was cited inAttorney General Opinion MW-344 (1981),which held that a contract for the services ofa container terminal operator was not one for "professional services."

Amore recent indication by the legislature as to the present scope of the "professionall*service exception it created 57years ago is found intwo 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 inconjunction with data processing equipment;
(B)telecommunications, radio, and microwave systems: ?

?

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(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 orHigh 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 arequest forproposals. Public notice for the request for proposals must bemade 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.

Inproviding for "high-technology items."a "competitive proposal" procedure alternative to the competitive bidding procedure set out in theAct, 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 nothave considered such "high technology" items tobe exempted fromthe coverage of section 262.023 by theprovisions of section 262.024 which provide for the "personal orprofessional service" and other exceptions to the operation of section 262.023.

It isour opinion that since the legislature intended such high technology items to be covered by the competitive bidding or competitive proposal requirements and not

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to fallwithin the section 262.024 exceptions, it would nothave 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) arenevertheless not "professional" services within the meaning of 5262.024(a)(4), then it is clear that themicrofilm services which, fromyour description, involve a lower level of technology, are not "professional services."

We conclude therefore that themicrofilm 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 formicrofilm services does not fallwithin the "personal orprofessional 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.
VeryItruly yodd 

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JIM MATTOX - Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee Prepared byWilliam Walker Assistant Attorney General ‘7

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