Request By:
James H. Moore, III
Counsel for the City of Ashland
Opinion
Opinion By: Daniel Cameron,ATTORNEY GENERAL; J. Michael West,Assistant Attorney General
Opinion of the Attorney General
The City of Ashland asks whether an engineer who administers the construction phase of a contract is providing "construction management services" rather than professional engineering services. This distinction is important because procurement rules allow engineers not providing construction management services to avoid competitive bidding.
The City of Ashland has adopted an ordinance that incorporates portions of the Kentucky Model Procurement Code. See Ashland Ordinance Sec. 37.046. 1Under one provision relevant here, a "local agency may contract or purchase through noncompetitive negotiation only when a written determination is made that competition is not feasible and it is further determined in writing by a designee of the local public agency that [t]he contract is for the services of a licensed professional, such as attorney, physician, psychiatrist, psychologist, certified public accountant, registered nurse, or educational specialist; a technician such as a plumber, electrician, carpenter, or mechanic; or an artist such as a sculptor, aesthetic painter, or musician, provided, however, that this provision shall not apply to architects or engineers providing construction management services rather than professional architect or engineer services[.]" KRS 45A.380(3). Thus, under KRS 45A.380, Ashland may engage in noncompetitive negotiation to obtain the services of an engineer but must engage in competitive bidding to procure the services of an engineer providing construction management services.
Ashland provides the template agreement that prompts this inquiry. But this Office need reference only limited portions of that document for this analysis. 2Many of the engineer's specific duties under the template agreement fall within the scope of practice of an engineer, including the "consultation, investigation, evaluation, planning, certification, and design of engineering works and systems[,]" and providing for "the review of construction for the purpose of assuring compliance with drawings and specifications." See KRS 322.010(4). But the template agreement goes further:
[T]he Engineer shall consult with Owner and act as Owner's representative as provided in the Construction Contract. The extent and limitation of the duties, responsibilities, and authority of the Engineer as assigned in the Construction Contract shall not be modified, except as Engineer may otherwise agree in writing. All of Owner's instructions to Contractor will be issued through Engineer which shall have the authority to act on behalf of Owner in dealings with Contractor to the extent provided in this Agreement and the Construction Contract except as otherwise provided in writing. 3
In this way, the agreement charges the engineer with duties, other than professional engineering services, that would constitute "construction management services". Compare KRS 322.010(4), (5) (defining the scope of practice of an "engineer") with KRS 45A.030(7) (defining "construction manager-general contractor") and KRS 65.025(1)(c) (defining a "construction manager").
KRS 45A.380(3) authorizes noncompetitive negotiation to procure the services of a professional engineer providing services. By its terms, however, the City must engage in competitive bidding if it seeks the services of a professional engineer who would also render construction management services, as in the template agreement.
Footnotes
Footnotes