MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 512/475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201-4709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79QO52793 

915(533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6986 

7131650-0556 

806 Broadway. Suite 312 

Lubbock, TX. 79401-3479 

SOS/747-5236 

4303 N. Tenlh, Suite S 

McAllen. TX. 76501-1665 

5121662.4547 

200 Main Plaza. Suite 4W 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

‘The Attorney General of Texas 

December 23, 1982 

Honorable Tim Curry 

District Attorney 

Tarrant County Courthouse 

Port Worth, Texas 76102 

Opinion No. MW-530 

Re: Whether contract for 

services of a construction 

manager is excepted from 

competitive bidding requirements of article 2368a. V.T.C.S. 

Dear Mr. 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 contains a number of 

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. 

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 

of Trustees of Galveston Wharves had to solicit bids on a contract for 

the services of a container terminal operator, Attorney General 

Opinion MW-344 (1981) dealt at some length with the question of what 

constitutes a "personal service" within the meaning of this statute. 

There, we observed that in Van Zandt V. Fort Worth Press, 359 S.W.2d 

893 (Tex. 1962), the Texas Supreme Court quoted with approval the 

following statement of the Supreme Court 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. 

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 ~Third New 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