September 3, 1993 

 

Honorable Bill Turner 

Brazos County District Attorney 

Brazos County Courthouse 

300 East 26th Street, Suite 310 

Bryan, Texas  77803

Letter Opinion No.  93-73 

 

Re:    Whether a home-rule city may give a 

preference to a local engineering firm in 

awarding a contract for professional 

engineering services    (RQ-574)



 

Dear Mr. Turner: 

 

	You ask whether a home-rule city may give a preference to a local firm in 

awarding a contract for professional services.  You explain that a local engineer has 

requested that the City of College Station (the "city") give preference to local engineering 

firms when awarding professional services contracts.  You believe that to award a 

contract for professional services solely on the basis of a local preference would violate 

the Professional Services Procurement Act, article 664-4, V.T.C.S. (the "act").  We 

agree.   

 

	The City of College Station is a home-rule city.  The Texas Constitution grants 

such cities all the power of self-government not expressly denied them by the legislature.  

Tex. Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 

852 S.W.2d 489, 490-91 (Tex. 1993).  The Texas Constitution prohibits a home-rule city 

from enforcing any legislation inconsistent with state laws or the state constitution.  Tex. 

Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491 

(citing City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982), cert. 

denied, 459 U.S. 1087 (1982)).   

 

	The act prohibits a municipality from contracting for or engaging the services of a 

registered engineer on the basis of competitive bids.  V.T.C.S. art. 664-4, § 3.  Rather, a 

municipality is required to select and award such contracts or engage such services "on 

the basis of demonstrated competence and qualifications for the type of professional 

services to be performed, and at fair and reasonable prices . . . ."  Id.  Section 3A of the 

act sets forth a specific, two-step process for negotiating the procurement of architectural 

and engineering services.  First, the initial selection must be based on "the demonstrated 

competence and qualifications" of the person who is to provide the services.  Id. 

§ 3A(a)(1).  Second, after the entity has made its selection, "it shall proceed to negotiate 

a contract at a fair and reasonable price."  Id. § 3A(a)(2).  "If the entity is unable to 

negotiate a satisfactory contract with the most highly qualified person, the entity shall 

formally end negotiations with that person and begin negotiations with the second most 

highly qualified person."  Id. § 3A(b).  The act requires that "[n]egotiations . . . be 

undertaken in this sequence until a contract is made."  Id. § 3A(c).   

	Section 3A of the act requires a municipality to initially select an engineer on the 

basis of "demonstrated competence and qualifications" alone.  It does not permit a 

municipality to select an engineer on the basis of any other criteria, including 

geographical location.  This is underscored by subsection (b) of section 3A which 

provides that if a municipality is unable to negotiate a contract at a "fair and reasonable 

price" with the most highly qualified person, i.e., the person who is the most competent 

and qualified, it must then negotiate with the "second most highly qualified person."  

Clearly, the act does not permit a municipality to take into account geographical location 

in selecting an engineer in any phase of the process.  Therefore, we conclude that the act 

prohibits a home-rule city from giving a preference to a local engineering firm in 

awarding a contract for professional engineering services.   

 

S  U  M  M  A  R  Y 

 

	The Professional Services Procurement Act, article 664-4, 

V.T.C.S., prohibits a home-rule city from giving a preference to a 

local engineering firm in awarding a contract for professional 

engineering services.   

 

						Yours very truly, 

 

 

 

						Mary R. Crouter 

						Assistant Attorney General 

						Opinion Committee 





RQ-574 

LDB 

 

DM- 

 

 

 

INDEX HEADINGS 

BIDDING 

BUSINESS AND COMMERCE 

CITIES AND TOWNS 

CONTRACTS 

 

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Honorable Bill Turner  -  Page  2