.Jxm MATTOX August 31, 1990
*mRNEY DEXYgRAL
Honorable Mike Driscoll opinion No. JM-1215
Harris County Attorney
1001 Preston, Suite 634 Re: Whether a commissioners
Houston, Texas 77002 court may prescribe a pre-
vailing wage for certain con-
tracts, and related questions
(RQ-1977)
Dear Mr. Driscoll:
You ask the following three questions about county
contracting practices:
May Commissioners Court prescribe a pre-
vailing wage for public works and non-public
works contracts?
May Commissioners Court require contractors
and subcontractors performing such contracts
to provide their employees with certain
fringe benefits (i.e., health and hospitali-
zation insurance and vacation leave)?
May the Commissioners Court require an
independent contractor to.hire personnel who
understand and speak English and whose
assignment is subject to the approval of the
County?
While you ask w a commissioners court prescribe a
prevailing wage for public works contracts, we believe that
article 5159a, V.T.C.S., recuires the court to determine and
pay prevailing wages on public works contracts. That
statute reads, in pertinent part, as follows:
The public body awarding any contract for
public work on behalf of . . . any county
. . . shall ascertain the general prevailing
rate of per diem wages in the locality in
which the work is to be performed for each
craft or type of workman or mechanic needed
p. 6426
Honorable Mike Driscoll - Page 2 (JM-1215)
to execute the contract, and shall specify in
the call for bids for said contract, and in
the contract itself, what the general
prevailing rate of per diem wages in the said
locality is for each craft or type of workman
needed to execute the contract. . . .
V.T.C.S. art. 5159a, .@2.
The plain language of that provision requires the
commissioners court to ascertain prevailing wage rates for
public works contracts. The provision also requires the
county to specify those rates both in the call for bids and
in the contract itself. Attorney General Opinion JM-329
(1985).
All county contracts requiring an expenditure of more
than $10,000 are governed by the County purchasing Act, now
codified at subchapter C of chapter 262 of the Local Govern-
mcnt Code. That subchapter requires that such contracts be
submitted to competitive bidding but does not require the
payment of local prevailing wages.
Counties may do only those things that they are
authorized to do, either expressly or by necessary implica-
tion. mles v. Lauahlin 214 S.W.Zd 451 (Tex. 1948):
Anderson v. Wood, 152 S.W:2d 1084 (Tex. 1941); Ehildress
Countv v. State 92 S.W.2d 1011 (Tex. 1936). While the
legislature has 'required that counties determine and pay
local prevailing wage rates on public works contracts, it
has made no such requirement in regard to other contracts.
As noted above, chapter 262 does not require the payment of
prevailing wages generally. Nor do we find any other
statute that expressly requires or necessarily implies that
the commissioners court establish prevailing wage rates for
contracts other than public works contracts.
We believe, in fact, that prescription of prevailing
wages relative to contracts outside the scope of article
5159a would contravene the express intent behind chapter 262
that contracts be permitted on the basis of competitive
bids. Of course, independent contractors may still be
subject to other state and federal laws governing wages.
See, 29 U.S.C. !j206 (federal minimum wage law): V.T.C.S.
art. 5159d (Texas minimum wage law).
You next ask about fringe benefits. This office has
recently reaffirmed a 1974 opinion that considered article
5159a and concluded that '*a public body may properly
P. 6427
Honorable Mike Driscoll - Page 3 (JM-1215)
consider 'fringe benefits' in determining a prevailing wage
rate for a particular locale." Attorney General Opinions
JM-1164 (1990), H-350 (1974). Thus, we believe that if
the commissioners court determines that local prevailing
practice includes certain fringe benefits, those same
benefits must be included in public works contracts governed
by article 5159a.
With regard to your question concerning fringe benefits
for non-public work, a specification requiring the adoption
thereof must be directly related to the work performed.
JM-1213 (1990).
Next, you ask about the county's authority to impose an
English language requirement on the employees of an in-
dependent contractor who provides security personnel or
janitorial services to the county. Further, you ask whether
the county can approve the assignment of individual
employees.
Section 262.025 of the Local G&ernment Code requires
publication of notice of the call for bids, including "the
specifications describing the item to be purchased." Local
Gov't Code 5 262.025(b)(l). The term 10item8'in that statute
includes a service. Local Gov't Code 8 262.022(4). Thus,
the competitive bidding provisions of chapter 262 apply to
contracts for the services of security guards and janitors.
The leading Texas competitive bidding case is Texas
Hiahwav Comm'n v. Texas Ass'n of Steel Imnorters. Inc., 372
S.W.Zd 525 (Tex. 1963). In that opinion, the Supreme Court
gave distinct, emphatic instruction on the manner of
drafting contract specifications to avoid the possibility of
limiting competition:
Matters of quality should be fixed by quality
specifications and not by proscriptions as
to localities of manufacture or fabrica-
tion . . . . Why should not the term,
"steel, free from rust" be used instead of
"domestic steel" if that is the quality that
is desired in re-enforcing materials used in
highway construction?
Id. at 529. The court found that the highway commission
rule requiring domestic steel violated the mandate of the
competitive bidding statute.
p. 6428
Honorable Mike Driscoll - Page 4 (JM-1215)
Whether a certain specification is directly related to
the work to be done is a fact question. You do not suggest
any reason, however, that any or all janitors need to be
proficient in English, or any other language. The communi-
cations skills required of security guards must be specific
job requirements. See 1s~ Attorney General Opinions
JW-881 (1988) (specifica&on' that 25% of work must be
performed by contractor's employees violates statute):
WW-139 (1980) (specification that automobiles be domesti-
cally manufactured violates statute): H-1219 (1978) (speci-
fication that printing be done by union printers violates
statute); H-1086 (1977) (limiting award on basis of bidder's
domicile violates statute).
Your final concern, regarding the county's approval of
the assignment of employees to specific work areas, arises
from an incident wherein an employee of a contractor was
assigned to clean the office of an assistant district
attorney who was assigned to prosecute the employee in a
criminal case. We believe fhat the county has the authority
to ensure the efficient operation of its criminal justice
system. See. e.a Local Gov't Code 5 291.001 (duty of
commissioners court to provide public buildings): Gov't Code
§ 41.107 (authority for commissioners court to provide
offices for county and district attorneys); Anderson v.
k?Qg, 152 S.W.Zd 1084 (Tex. 1941) (duty to provide public
buildings includes duty to keep them habitable); see also,
Tex. Const. art. V, 5 21; -Derd . Alan& 303 S.W.2d 646
(Tex. Civ. App. - San Antonio 1;57, no writ) (duty of
prosecuting attorneys to investigate and prosecute all
violations of criminal laws).
The proposed janitorial contract, which was filed with
your request, contains a provision requiring the contractor,
prior to starting the work, to submit to the county's con-
tracting officer (or his representative) Ita plan on which
all daily cleaning assignments are identified to each
employee (position), including schedule items and policing."
Another provision allows the contracting officer's represen-
tative, in the exercise of reasonable discretion, to object
to a particular employee and have that individual reassigned
and replaced. We believe that these provisions are
reasonably related to the quality of the work to be done and
provide a reasonable method of safeguarding the operation of
the county's criminal justice system.
Finally and in specific regard to security personnel,
we note that a "guard company" or a "security services
contractor" must be licensed under section 13(a) of article
P. 6429
Honorable Mike Driscoll - Page 5 (JM-1215)
4413(29bb), V.T.C.S. Security personnel of a guard company
must be commissioned if they carry firearms, ie, § 19(a), or
registered if they do not, ia, 5 32(a). Both types of
employees and the company owner are subject to the approval
of local law enforc'ement authorities. Id. 55 15(a) (91,
19 (9) I 33(c). A specification that a bidder and its
employees be licensed, certified, or registered under that
act would be directly related to the work to be done and may
well satisfy the security concerns of the prosecuting
attorneys.
SUMMARY
A commissioners court must determine,
require and pay local prevailing wage rates,
including fringe benefits, on public works
contracts. They may not require the payment
of local prevailing wages on other contracts.
Contract specifications must be directly
related to the work to be done.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 6430
Untitled Texas Attorney General Opinion
Combined Opinion