MARK WHITE Attorney General

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# ‘The Attorney General of Texas

December 23, 1982

Honorable Tim Curry DistrictAttorney Tarrant County Courthouse PortWorth, Texas 76102 OpinionNo.MW-530
Re: Whether contract for services of a construction manager is excepted from competitive bidding requirements of article 2368a.V.T.C.S.
DearMr. Curry: Article 2368a. V.T.C.S., requires counties to take competitive bids on "any contract calling for... an expenditure... in an amount exceeding [$5,000.001." Sec. .2(a). The statute containsa number of exceptions, however. You have asked whether a contract for the services of a "construction manager" who oversees various public buildingprojects iswithin any of these exceptions. Among other things, contracts for "personal or professional services" are excepted from the competitive bidding requirements of article 2368a. Sec. 2(b). In the courseof concludingthat the Board of Trustees of GalvestonWharves had to solicitbids on a contract for the services of a container terminal operator, Attorney General Opinion MW-344 (1981) dealt at some lengthwith the question of what constitutes a "personal service"within the meaning of this statute. There, we observed that in Van ZandtV. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962), the Texas Supreme Court quoted with approval the followingstatementof the SupremeCourt of Utah:

The term 'personal service' indicates that the 'act' done for the benefit of another is done personally by a particular individual. (Emphasis in original). 359 S.W.2d at 895, quoting from Creameries of America, Inc. v. IndustrialCommission, 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 involvingthe either intellectual ormanual personal labor of the server rather than a salableproduct of his skill.

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Webster's~ThirdNew InternationalDictionary 1687 (1961).
Van Zandt involved a suit by a newspaper to recover amounts due for advertisingservices. One of the theoriesof recoveryadvanced in that casewas that advertisingservicesare "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 embracednot 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'sreasoning in that case as follows:

The court said that attorneys feesmight have been recoverable on that portion of the contract attributableto employees'wages. if thewages had been separatelyitemized. 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 employeewages. As an example of a contract that couldnot be consideredone for personal services, the court suggested the operation of a loo-car freight trainby a crew of three or fourmen. The employment of a laborer to dig a ditch using his own pick and shovel,on the other hand, is clearly a contract forpersonal services.
We concluded:

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

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insurance as well as the operator's anticipated profit.
You informus that the duties of a constructionmanager include: (1) representing the county during construction and until final payment to all contractors is due; (2) advising and consultingwith the county; (3) overseeing, scheduling and coordinating the work of contractors;and (4) reviewingapplicationsfor paymentby contractors and making final recommendations to the architect for certification forpayment. 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 intellectualor 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 discussedabove had inmind when they offered their examples of instances inwhich "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 questionof whether a contract to employ civil engineers to supervise thework of building roads in a county was subject to competitivebidding. The court answered in the negative, and the reasons it offered for exempting such services from bidding requirementsare 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 competitivebiddingwould give a ridiculous meaning to the act.... Such a construction would require the selection of attorneys, physicians, school teachers,and civil engineersby competitivebids, the only testbeing the lowestbid for the servicesof suchmen. Such a test would probably be the best that could conceived for obtaining the servicesof the least competentman.... (Emphasisadded).

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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 thereforeneed not be let on competitivebids. Our conclusion renders unnecessary a discussion of whether such contract is alsowithin the "professionalseTvices" 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 thereforeneed not be let on competitivebids.
m-.cxs' ,

ad? MARK WHITE Attorney General of Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorney General
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Bus Gary Rick Gilpin PatriciaHinojosa JimMoellinger

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