The Attorney General of Texas 

JIM MAlTOX , llarch 24, 1986 

Attorney General 

Supreme Cowl Building 

P. 0. BOX 12548 

Austin. TX. 78711. 2548 

5121475-2501 

Telex 91olB74.1387 

Telecopier 512I475-0266 

714 Jackson. Suite 700 

Dallas. TX. 75202-4506 

214il428944 

4B24 Alberta Ave.. Suite 180 

El Paso, TX. 799052793 

9154533.3484 

1001 Texas, Suite 700 

Houston, TX. 77002-3111 

713/223-5888 

806 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

806/747-5238 

4309 N. Tenth. Suite B 

McAllan, TX. 78501-1685 

5121882.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 78205-2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

Mr. James Ken Newman Opinion No. ~~-457 

Chairman 

Texas State Board of Registration Re: Validity of proposed disfor Professioni: Engineers ciplinary rule of the Board of 

P. 0. Drawer 1832') 

Austin, Texas 7:3760 

Registration for Professional 

Engineers 

Dear Mr. Newman: 

You wish to !mow whether a proposed amendment to the Board of 

Registration for Professional Engineers Rule 131.151, revising 

Disciplinary Rule 5.4, is within the authority of the board to 

promulgate. We conclude that it is not. 

Disciplinary :Rule 5.4 presently reads as follows: 

(iv) DR 5.4.. It shall be a violation of the 

Texas Engineering Practice Act for a registrant to 

submit or request a competitive bid to perform 

engineering services for any state agency, political stibdivision, county, municipality, district, 

authority, or publicly owned utility of the State 

of Texas, or for any agency of dther entity of the 

federal government, when the procurement of such 

professional services is in violation of the 

state's Professional Services Procurement -Act or 

the Federal Property and Administrative Services 

Act of 1949, as amended, respectively. 

(I) For purposes of this disciplinary rule, 

the board has adopted the Supreme Court of Texas' 

definition of competitive bidding, which in part 

is as follows: 

Compe,titive bidding . . . contemplates a 

bidiiing on the same undertaking upon each of 

the same material items covered by the contract.; upon the same thing. It requires that 

all bidders be placed upon the same plane of 

equality and that they each bid upon the same 

terns and conditions involved in all the items 

and parts of the contract, and that the 

p. 2082 
Mr. James Ken Nwman - Pa& 2 (J&457)'* ) 

proposal specify as to all bids the same, or 

substantially s.imilar specifications. 

(Texas Eighway C~~wission v. Texas Association of 

Steel Importers: Inc., 372 S.W.2D 525, Texas 

1963); however, * 

(II) the engineer shall not be considered in 

violation of the Act in cases where his 

engineering serr:lces may legally be offered, 

furnished, or plxformed as an integral part of 

research and development programs, construction 

projects, manuflxtured products, processes, or 

devices, which are to be offered, performed, 

supplied, or obts:Lned on the basis of competitive 

bids. 

The proposed amendment reads as follows: 

(iv) DR 5.4. As public policy, competitive 

bidding for professional engineering services for 

public works is ,prohibited by state and federal 

law, and particip~ation in such bidding activities 

by any engineer registered in this state shall be 

considered a.vi~~:lation of the Texas Engineering 

Practice Act. 

I. Where there is a competitive situation in 

the procurement of professional engineering 

services by aqy state agency. political subdivision, coulty , municipality, district, 

authority, or publicly owned utility of the State 

of Texas, or by any agency or other entity of the 

federal govermect, all registered engineers 

involved will sseure that such professional 

contracts are awarded in conformance with the 

.approprlate procurement laws; that selection of 

the best engineer for the contract is sought and 

made on the bas.ls of demonstrated competence and 

overall qualifications, subject to negotiation of 

a fair and reescoable fee; that only after selection by the pub:.ic agency on the basis of demonstrated compete& and overall qualifications will 

the engineer pr&de proposed or estimnted costs 

for that project-and enter into negotiations with 

the public agene; concerning a fair and reasonable 

fee for the eng$eering services to be rendered; 

and that if an zpeement cannot be reached on the 

amount of a fair and reasonable fee, the engineer 

shall terminate-negotiations and withdraw from 

consideration, ;Ild the next best engineer max 

p. 2083 
Mr. James Ken Newman - Page :3 (JM-457) 

iwarded. (Emphasis added). 

Essentially the proposed amendment to Disciplinary Rule 5.4 would 

require a bifurcated process whenever a professional engineer is to be 

selected to work on a publLc project. The first stage of the process 

involves selection of an er.gineer by the public agency on the.basis of 

"demonstrated skill and overall qualifications"; only after selection 

may the engineer provide ir.formation as to proposed or estimated costs 

and then enter into negotlr.tions with the public agency. 

The process set forth in the proposed amendment substantially 

tracks the process set f#orth in the federal statutes governing 

selection by federal agemies of architects and engineers. See 40 

U.S.C. 55541 et seq. IO 1:h.e first stage of the federal processeach 

agency head requests data from architectural and engineering firms 

and, for each proposed pro:e:ct, evaluates such data, together with any 

such information submitted by other firms. After discussions with no 

less than three firms, ani, on the basis of established and published 

criteria, the agency selecta no less than three firms deemed to be the 

most highly qualified to provide the services required. In the second 

stage of the process, the agency head then enters into negotiation 

with the firm selected a3 the most qualified. If the agency head 

cannot negotiate a satisfactory contract with the first firm selected, 

he shall enter into negotj.ations with the second firm chosen, and so 

on with the third. 

Generally, the power:3 of an administrative agency are derived 

entirely from legislative enactment. Corzelius v. Railroad Commission, 182 S.W.2d 412, 415 (Tax. Civ. App. - Austin 1944, no writ); 

broad Commission v. Fact Worth & Denver City Railway Co., 161 

S.W.2d 560. 561 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.). An 

agency has only such powers as are expressly conferred on it by 

statute, Stauffer v. City Iof San Antonio, 344 S.W.2d 158. 160 (Tex. 

1961); Railroad Commissior~v. Fort Worth h Denver City Railway Co., 

s, together with those powers necessarily implied from powers and 

duties expressly given or imposed. City of Sherman V. Public Utility 

Commission~of Texas, 643 S.W.2d 681, 686 (Tex. 1983); Brown v. Humble 

Oil & Refining Co., 83 S.W.2d 935, 941 (Tex. 1935). If the statutes 

do not grant an agency thts power fo do a thing, then it has no such 

power. Nueces County Water Control and Improvement District v. Texas 

Water Rights Commission, 4gl S.W.2d 924, 929 (Tex. Civ. App. -Austin 

1972. writ ref'd n.r.e.). You contend that the board is conferred 

authority to promulgate. the rule you propose by section 8(b) of 

article 3271a. V.T.C.S.. the Texas Engineering Practice Act, which 

contains the following in pertinent part: "The [bloard may 

p. 2084 
Mr. James Ken N-n - Page 4 (m-457) , 

promulgate rules restricting competitive bidding." We conclude for 

two reasons that the above sentence confers no such authority. 

First, without specif>%ng the contours which eny rule promulgated 

by the board to restrict c,ompetitive bidding may take, we conclude 

that any rule so promnlgllted cannot reach a situation in which a 

political subdivision of the state seeks to procure the profrssional 

services of an engineer. 

The procedure by which political subdivisions of this state are 

governed with respect to l:he procurement of professional services is 

article 664-4, V.T.C.S., which provides the following: 

Section 1. Th!is Act shall be known and may be 

cited as the 'Irofessioaal 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 agence -- 

, political subdivision, 

county, municipality, district, authority or 

publicly-owned utility of the State of Texas shall 

make any contract for, or engage the professservices of.~ any-licensed physician, optometrist, 

surgeon, archite&, certified public accountsnt z 

registered engio&, or any group or association 

thereof, selectezx the basis of competitive bids 

submitted submitted for su+ contract contract or for such services services 

to be performed!-but performed!-but shall select and award such 

contracts contracts and enE:age enE:age such services services on the basis of 

demonstrated demonstrated competence competence and qualifications qualifications for the 

type of professIona professIona services services to be performed performed and 

at fair and rearznable prices, as long as professional fees are-consistent are-consistent with and ndt higher 

than the publi&:d publi&:d recommended recommended practices practices and fees 

of the various various ~%pplicable ~%pplicable professional professional associa-. associa-. 

tions and do nc; exceed the maximum maximum provided provided by 

any state law. 

Sec. 4. Any and all such contracts, agreements 

or arrangements for professional services negotiated, made or entered into, directly or 

p. 2085 
Mr. James Ken N-n - Page 5 (JM-457) 

indirectly, by any agency or department of the 

State of Texas, county, municipality, political 

subdivision, district, authority or publicly-owned 

utility in any wily in violation of the provisions 

of this Act or any part thereof are hereby 

declared to be void as contrary to the public 

policy of this State and shall not be given effect 

or enforced by any Court of this State or by any 

of its public of:ficers or employees. (Emphasis 

added). 

Section 8 of Acts 1971, Sixty-second Legislature, chapter 38. page 73, 

the emergency provision of the Act, contains the following language 

detailing the public policy considerations prompting the passage of 

the Act: 

BY 

procure 

. . 

The fact thatf:he selection of certified public 

accountants, architects, physicians, optometrists, 

surgeons and professional engineers on the basis 

of the lowest biti places a premium on incompetence 

and is the most l&sly procedure for selecting the 

least able or qt;lified and the most incompetent 

practitioner fo:; the performance of services 

vitally affecting the health, welfare and safety 

of the public .uld that; in spite of repeated 

expressions of the legislature excepting such 

professional serrices from statutes providing for 

competitive bii,ding procedures, some public 

officers contints to apply competitive bidding 

procedures to the selection of such professional 

personnel, creates an emergency of the greatest 

public importan~x to the health, safety and 

welfare of the people of Texas. . . . (Emphasis 

added).. 

whatever phrase the means by which political subdivisions 

professional serxlces is called, it is manifestly not 

"competitive bidding." The legislature has unequivocally declared its 

intent that political subdivisions of this state not procure professional services through the process commonly known as "competitive 

bidding." Any statute which confers to a licensing agency the 

authority to restrict the competitive btdding practices of its 

licensees could not reach it situation in which a political subdivision 

seeks the professional se,rvlces of an engineer because political 

subdivisions cannot procure professional services by competitive 

bidding. Section 8(b) can logically only reach those situations in 

which the practice of competitive bidding is not otherwise forbidden 

by law or is affirmatively permitted or required; such a rule could 

z reach a situation in which competitive bldding is affirmatively 

prohibited. 

p. 2086 
Ur. James Ken Newman - Page 6 m-4571 

There is a second, ev~1 mar+ compelling, reason. Even if we were 

to assume arguendo that se:lclon 8(b) somehow provides authority 'for 

the board to promulgate the amendment whfch you propose, we would have 

to declare that the rule is in violation of Texas statutory law, 

specifically article 664-4, V.T.C.S. The rulemaking power of administrative agencies does not permit the promulgation of rules which are 

inconsistent with the expression of the legislature's intent ic 

statutes other than those under which the rules are promulgated. 

Thus, when the legtslature acts with respect to a particular matter, 

the administrative agency myy not so act with respect to the marter as 

to nullify the legislature's actions , even though the matter is within 

the agency's regulatory f:Leld. State v. Jackson, 376 S.W.2d 341, 

344-45 (Tex. 1964); Hartjnez v. Texas Employment Commission, 570 -- 

S.W.2d 28, 31 (Tex. Civ. QI. - Corpus Christ1 1978, no writ). In a 

brief submitted to this ofMce in support of your proposed amendment, 

It is suggested that thaz proposed rule governs the conduct of 

registrants of your board only, that it in no way regulates the 

procedures to be employed by the political subdivisions themselves. 

This suggestion is disingaluous at best. The amendment which you 

propose would effectively tislpose on state and local governments the 

same procedures which the United States Congress has imposed on the 

federal government. 

The proposed rule vio:latas the Professional Services Procurement 

Act in at least two ways. First, article 664-4, V.T.C.S.. does not 

contemplate a bifurcated Iprocess; rather, the act requires that 

political subdivisions musl: award contracts for professional services 

in a one-step process to a professional who is selected 

on the basis of demonstrated competence and qualifications for thlr type of professional services to 

be performed and at fair and reasonable prices, as 

long 8s professiolaal fees are consistent with and 

not higher than t,h,e published recommended practices 

and fees of th<! various applicable professional 

associations and d,o not exceed the maximum provided 

by any state law. 

V.T.C.S. art. 664-4, 53. If the Texas Legislature had intended that 

state agencies and local governments amploy a two-step procedure 

similar to that set forth in the federal act when procuring professional services, it could have done so. But it clearly did not. 

Second, the proposed ruk, would effectively eviscerate the clear 

statutory requirement tha: fees be considered as a factor in the 

awarding of such contracts for professional services. As we stated in 

Attorney General Opinion JN-155 (1984). 

The clear terns of the Act itself do not merely 

p+rmit the consideration by the agency of the fees 

charged for certain professional services, but 

require it. Whi:le the Act expressly prohibits the 

p. 2087 
Hr. James Ken Newman - Page 7 (Jl'f-452) 

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 oE demonstrated competence and 

quallflcatlons for the type of professional 

services to be plarformed and at fair and reasonable prices.' V.T.C.S. art. 664-4, 03 (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 for the various applicable professional 

associations ani. do not exceed, the maximum 

provided by any state law.' Therefore, the 

imposition of fees must be one factor considered 

by any agency in awardingacontract for such 

professional services; however, it cannot be the 

a factor to be cousidered. 

Accordingly, we conclude that the proposed amendment to 

Disciplinary Rule 5.4 by the board is not authorized by the Texas 

Engineering Practice Act. 

S U-M M ARY 

The Board of Registration for Professional 

Engineers is not (conferred authority by the Texas 

Engineering Pra,:tices Act to promulgate its 

proposed amendment to board Rule 131.151 revising 

Disciplinary Rule 5.4. 

JIM HATTOX 

Attorney General of Texas 

JACK HIGETOWFR 

First Assistant Attorney Goneral 

MART KZLLBR 

Executive Assistant Attormy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committe~z 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 2088