Opinion
Opinion By: Chris Gorman, Attorney General; Lynne Schroering, Assistant Attorney General
You have asked this office whether Marshall County Board of Education's contract to employ a construction inspector is considered supplying professional services and therefore is exempted from the bidding requirements of KRS 424.260.
The Marshall County Board of Education has initiated construction of two new elementary schools and hired a general contractor and an architectural firm to construct the schools. The board also entered into a contract with a construction inspector to make inspections and report to the board during the course of construction. The job qualifications for the construction inspector were established by the board and included the following specifications:
1. High School graduate (minimum).
2. General knowledge of building construction.
3. Previous experience of general job supervision relating to commercial or school building.
4. Shall be knowledgeable of drawings and specifications.
5. Shall have general understanding of mechanical and electrical process of project.
6. Shall be responsible to the board of education and the school superintendent.
The board set forth the job description for the construction inspector which required him to be on the job site daily, keep a log of weather and job progress, attend all construction meetings, and report to the board. However, the description contained some significant items that release the inspector from decision making duties, such as the following provisions:
1. Shall not be responsible for and will not have control or charge of construction means, method, techniques, sequences or procedures, except that work not meeting specifications, codes or operations of safety shall immediately be brought to the attention of the contractor, architect, and school board.
2. Shall understand that the obligation to perform the work without defects and in full compliance with plans and specifications lines [sic] with the contractor and sub-contractors and their agents and employees.
It is the opinion of the Attorney General that the construction inspector position involved in this specific case is not providing professional services pursuant to KRS 424.260 and bidding procedures should have been implemented.
Pursuant to KRS 424.260, school districts must follow established bidding procedures in contracting for services in excess of $ 10,000 and this statute provides in pertinent part:
Except where a statute specifically fixes a larger sum as the minimum for a requirement of advertisement for bids, no city, county, or district, or board or commission of a city or county, may make a contract, lease, or other agreement for materials, supplies except perishable meat, fish, and vegetables, equipment, or for contractual services other than professional, involving an expenditure of more than ten thousand dollars ($ 10,000) without first making newspaper advertisement for bids. Provided, however, that this requirement shall not apply in an emergency if the chief executive officer of such city, county, or district has duly certified that an emergency exists, and has filed a copy of such certificate with the chief financial officer of such city, county, or district.
Pursuant to KRS 424.260 school districts must follow established bidding procedures in contracting for services in excess of $ 10,000. However, a school district may opt to follow the Model Procurement Code as set out in KRS 45A. See OAG 82-170.
A school district following KRS 424.260 is not required to obtain bids for "professional" services. In
Jeffersontown v. Cassin, Ky., 102 S.W.2d 1001, 1005 (1937), the court discussed at length this exception and the types of services considered professional under the predecessor of KRS 424.260. The court relied on cases that defined professional services as requiring scientific knowledge or professional skill such as that possessed by a lawyer, engineer, physician, artist, or court reporter. Additionally, the court relied on McQuillin on Municipal Corporation (2d Ed.) Section 1292 which states:
Provisions as to competitive bidding have been held not to apply to contracts for personal services depending upon the peculiar skill or ability of the individual, such as the services of a court stenographer, an attorney-at-law, a superintendent or architect to supervise and make suggestions relative to work let under competitive bidding, or a consulting or supervising engineer. And generally the requirement does not apply to the employment of a professional man, in which case the authorities have a discretion as to his qualifications.
Jeffersontown v. Cassin, Ky., 102 S.W.2d 1001, 1005.
Our office held in OAG 79-501 that a construction manager over a construction project is providing professional services and is not subject to competitive bidding as required by KRS 424.260. We reached this conclusion after determining that the construction manager is performing activities similar to an architect or construction engineer, such as making suggestions on design and overseeing the bidding process.
The position of construction inspector as set forth by the Marshall County Board of Education does not have the decision making responsibility required of the position of construction manager explained in OAG 79-501. In determining whether an individual is providing professional services, the first area of inquiry should be the educational background. Clearly, a lawyer, an accountant, an architect, an engineer, and a doctor are providers of professional services by virtue of their education and training. Others may also provide professional services, even in fields not traditionally viewed as "professional." These skilled individuals have careers which require a high degree of decision making responsibility and discretion in the performance of their duties. For example, the construction manager discussed in OAG 79-501 utilized his discretion in making suggestions on the design of the facility and was responsible for the bidding on the project. However, the construction inspector hired by the Marshall County Board of Education is merely inspecting the building constructed by the general contractor and reporting back to the board. The contract specifically releases the construction inspector from any responsibility for the actual construction of the school.
In summary, we believe that the construction inspector position created by the Marshall County Board of Education does not constitute professional services and therefore the bidding requirements of KRS 424.260 should have been followed.