Guide to County Purchasing: Procurement of Professional Services

The two principal laws which the purchasing agent must comply when procuring professional services are the Professional Services Procurement Act , (TEX. GOV'T CODE ANN., Title 10, ch. 2254, subch. A) and the Purchasing Act (TEX. LOCAL GOV'T CODE ANN., Title 8, 262, subch. C)
There are two kinds of professional services:

1. Those professional services specifically defined under the Professional Services Procurement Act; and,

2. Those "other" professional services that are not specifically defined under either the Professional Services Procurement Act or the County Purchasing Act and which must be obtained in compliance with the County Purchasing Act. The purchasing agent must rely on court cases and attorney general opinions to determine what services are included in these "other" professional services.

Professional Services Procurement Act

Professional services are defined in the Professional Services Procurement Act as:

1. those within the scope of the practice of accounting, architecture, optometry, medicine, land surveying, professional engineering, or real estate appraiser as defined by the laws of the State of Texas;

2. those performed by any licensed architect, optometrist, physician, surgeon, certified public accountant, land surveyor, professional engineer, or state licensed real estate appraiser in connection with his professional employment or practice.

The Act states that contracts for the procurement of these professional services may not be awarded on the basis of bids. Instead, services must be awarded on the basis of demonstrated competence and qualifications.

To ensure vendors a fair and equal opportunity to do business with county, and to ensure that the services of the most qualified professional is obtained, commissioners court should direct that professional services be procured using a Request for Qualifications (RFQ) process.

The county shall rank firms based on their qualifications and then enter into negotiations with the most qualified firm based on a fair and reasonable price. If the county is unable to negotiate a satisfactory contract with the most highly qualified vendor, negotiations will formally end with that person or firm. The next most highly qualified vendor will then be asked to negotiate. Negotiations are continued in this sequence until a contract is finalized.

If any contract is entered into with one of the above mentioned professionals on the basis of a competitive bid, it is contrary to state law and is void.

Purchasing Act

There are "other" personal or professional services that are NOT specifically defined or covered in the Professional Services Procurement Act. Various court opinions have defined these "other" professional services as services requiring technical skill and expertise; labor and skill which is predominantly mental or intellectual, rather than physical or manual; or, a special skill and experience. "Other" personal services have been defined as services that must be performed by a particular person and by the terms of the contract no substitutions are allowed.

To ensure vendors a fair and equal opportunity to do business with county, and to ensure the services of the most qualified person or professional, "other" personal or professional services should be procured using a Request for Services process unless the contract will be for less than the statutory limit or unless the commissioners court approves another procedure.