Original Author: Hemsley, Sid
Date of Material: 07/13/1999
Purchasing--Bids, proposals and specifications
Reviewed Date: 07/02/2021
MTAS was asked whether the city's purchase of automotive repairs is a professional service exempt from competitive bidding required by the Municipal Purchasing Law and the city's competitive bidding policies.
The answer is no.
The purchase of certain professional services cannot be competitively bid under Tennessee Code Annotated, section 12-4-106, which provides that:
Contracts by counties, cities, metropolitan governments, towns, utility districts and other municipal and public corporations of the state, for legal services, fiscal agent, financial advisor or advisory services, educational consultant services, 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. 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.
That statute clearly does not put automotive repair in the class of professional services contemplated by that statute. It expressly contemplates two kinds of professional services:
1. [L]egal services, fiscal agent services, financial advisor or advisory services, educational consultant services;
2. "[S]imilar services by professional persons or groups of high ethical standards...."
Automobile repair obviously does not fit into the first category so we need not analyze it further. With respect to the second category, automobile repair is not remotely a service similar to those in the first category, and is not "performed by "professional persons or groups of high ethical standards."
I hasten to add that automotive repairmen may be as ethical as any other group of businessmen, but the "persons or groups of high ethical standards" of which that provision speaks refers to persons or groups who have adopted a formal and elaborate code of professional responsibility which can legally be enforced against them.
The only Tennessee case I can find on the question of what constitutes a professional service is Modjeski and Masters v. Pack, 388 S.W.2d 144 (1965). There the question was whether an engineering firm hired to determine the feasibility of bridge construction was required to comply with certain competitive bidding requirements. The Tennessee Supreme Court held that the answer was no, reasoning that engineers provide "professional service requiring special training and skill." In addressing the question of what constituted professional service, the Court turned to the test set out in 43 Am. Jur., Public Works and Contracts, section 28:
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 skills, such as contracts calling for the services of architects, engineers, accountants, or the like, and such contracts may be let without bids. [Emphasis is mine]
Automotive repair does not meet that test. A significant number of cases in other jurisdictions on the question of what constitutes "professional services" within the meaning of various states’ competitive bidding statutes also support that conclusion.