‘The Attorney General of Texas
December 23, 1982
MARK WHITE
Attorney General
Honorable Tim Curry Opinion No. MW-530
Supreme Court Building
District Attorney
P. 0. BOX 12546
Austin. TX. 76711. 2546
Tarrant County Courthouse Re: Whether contract for
5121475-2501 Port Worth, Texas 76102 services of a construction
Telex 9101674-1367 manager is excepted from
Telecopier 512/475-0266 competitive bidding require-
ments of article 2368a. V.T.C.S.
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 Dear Mr. Curry:
2141742-6944
Article 2368a. V.T.C.S., requires counties to take competitive
4624 Alberta Ave., Suite 160
bids on "any contract calling for... an expenditure... in an amount
El Paso, TX. 79QO52793 exceeding [$5,000.001." Sec. .2(a). The statute contains a number of
915(533-3464 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.
1220 Dallas Ave., Suite 202
Houston, TX. 77002-6986
7131650-0556 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
806 Broadway. Suite 312 of Trustees of Galveston Wharves had to solicit bids on a contract for
Lubbock, TX. 79401-3479
the services of a container terminal operator, Attorney General
SOS/747-5236
Opinion MW-344 (1981) dealt at some length with the question of what
constitutes a "personal service" within the meaning of this statute.
4303 N. Tenlh, Suite S There, we observed that in Van Zandt V. Fort Worth Press, 359 S.W.2d
McAllen. TX. 76501-1665 893 (Tex. 1962), the Texas Supreme Court quoted with approval the
5121662.4547
following statement of the Supreme Court of Utah:
200 Main Plaza. Suite 4W The term 'personal service' indicates that the
San Antonio, TX. 76205.2797 'act' done for the benefit of another is done
5121225-4191
personally by a particular individual. (Emphasis
in original).
An Equal Opportunity/
Affirmative Action Employer 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 ~ThirdNew 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