Knowledgebase-Professional Services Rendered by Weightlifter

Information Product

Title:Professional Services Rendered by Weightlifter
Summary:MTAS was asked whether T.C.A. 12-4-106 prohibits local governments from competitively bidding contracts for certain types of professional services.
Original Author:Bingham, Pamela
Product Create Date:12/10/98
Last Reviewed on::03/26/2010
Subject:Purchasing--Bids proposals and specifications; Purchasing--Laws and regulations; Purchasing--Professional services
Type:Legal Opinion
Legal Opinion:

Reference Documents:

Text of Document: Professional Services Rendered by Weightlifter

T.C.A. 12-4-106 prohibits local governments from competitively bidding contracts for certain types of professional services. Section 106 states that:

Contracts by counties, cities, metropolitan governments, towns, utility districts and other municipal and public corporations of this state for legal services, fiscal agent of financial advisors or advisory services, educational consultants, and similar services by professional persons or groups of high ethical standards, shall not be based upon competitive bids, but shall be awarded on the basis of recognized competence and integrity. Provided, however, the prohibition against competitive bidding in this section shall not prohibit any entity enumerated from interviewing eligible persons or groups to determine the capabilities of such persons or groups.
(Emphasis added)

In Modjeski and Masters v. Pack 388 S.W.2d 144, 215 Tenn. 629 (Tenn. 1965), the Court said:

The selection of the architect and engineer to design the proposed bridge rests in the sound discretion of the proper officials of the governments affected. Because discretion is involved in the selection of the ones to perform professional services requiring special training and skill, public contracts for such services are not the subject of competitive bids.

In turn the Modjeski court quoted 43 Am.Jur., Public Works and Contracts, 28, page 770, where it is provided that:

As a general rule, statutory and constitutional provisions prohibiting letting of contracts by a state or by municipal subdivisions, without first advertising for bids, do not apply to contracts for professional services, such as the services of physicians or attorneys, or to contracts requiring special training and skill, such as contracts calling for the services of architects, engineers, accountants, or the like, and such contracts may be let without bids.

In sum, public contracts for professional services requiring special training and skill are not subject of competitive bids. Modjeski and Masters v. Pack, 388 S.W.2d 144, 215 Tenn. 629 (Tenn. 1965) . The "services" T.C.A.12-4-106 addresses are ones provided by professionals in their field of exclusive expertise. See generally Tenn. Op. Atty. Gen. No. 89-14

There were no reported Tennessee cases found in Tennessee nor any opinions of the state Attorney General that address whether or not a highly-trained and certified athletic instructor could be considered a "professional" under T.C.A. 12-6-106. However, it is my view that such an individual could be considered as one fitting within the definition of an " educational consultants, and similar services by professional persons." And of course, it is well-settled if the service provider is the “sole source” of such professional services in the area, the requirement of competitive bidding do not apply.

The Lease of Municipal Property

Under the Municipal Purchasing Law of 1983, codified at T.C.A. 6-56-301 - 6-56-306 (the "Purchasing Law"), if a city’s charter already addresses purchasing and competitive bidding, then the general law on municipal purchasing does not apply. In your case, your charter, specifically Title 1, Part 4, discusses purchasing laws applicable to the city. In addition, a number of ordinances also address purchasing and leases, lease-purchases of both personal and real property, and intended compliance with the Municipal Purchasing Law.

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.