COUNTIES ‑- CITIES AND TOWNS ‑- CONTRACTS ‑- BIDS ‑- PROFESSIONAL SERVICES
(1) Second, third and fourth class cities are required by RCW 35.23.352 to call for bids in connection with the purchase of professional services where the anticipated cost for such services will exceed $2,000, and this statute contains no exception to reflect the possibibility of a conflict between its requirements and a canon of professional ethics which is so written as to prohibit the members of the profession which it governs from responding to a city's call for bids for their service.
(2) Counties, code cities and first class cities are not required to bid for professional services and therefore, the governing bodies of such municipalities may exercise discretion in connection with this matter.
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November 15, 1973
Honorable Harry B. Lewis
State Senator, 22nd District
2019 Clairemont Circle
Olympia, Washington 98502
Cite as: AGLO 1973 No. 107
This is written in response to your recent letter requesting our opinion on the following two questions relating to the purchase of professional services by cities, towns and counties:
(1) Are there any legal restraints upon municipal corporations soliciting competitive bids prior to the purchase of professional services such as those of engineers, architects, or attorneys?
(2) If there is nothing to prohibit such municipal corporations from soliciting competitive bids for professional services, to what extent may a municipal corporation take into account the canons of professional ethics of a particular profession in making a determination as to whether or not to require competitive bidding on any particular project?
We answer these questions in the manner set forth in our analysis.
In considering your questions we will first take note of the special provisions of RCW 35.23.352, which govern second, third and fourth class cities only. As indicated in AGO 1970 No. 3 [[to Perry B. Woodall, State Senator on January 21, 1970]], copy enclosed, that statute not only permits, but expressly requires, those three classes of cities to call for bids in connection with the purchase of any personal services where the anticipated cost for such services will exceed $2,000.00 ‑ in contradistinction to the general rule as stated in 10 McQuillin, Municipal Corporations, p. 340, that:
[[Orig. Op. Page 2]]
"Although they are sometimes held to apply to such an agreement, provisions requiring competitive bidding as a basis for entering into contractual relations with a governmental body usually are held not to apply to contracts for personal services involving peculiar skill or ability. . . ."
Moreover, there is presently no exception stated in that statute to cover the possibility of a conflict between its requirements with respect to personal service contracts and a canon of professional ethics which is so written as to prohibit the members of the profession which it governs from responding to a city's call for bids for their services. Where, in addition, such a canon is (a) mandatory in its application to all members of the particular profession who are practicing in this state and (b) uniformally enforced against the members of that profession, it is, perhaps, arguable that such an exception can be read into the statute by implication in order to avoid the potential absurdity of an inability by the city to obtain needed professional services without causing the only persons qualified to render those services to violate the ethical canons which govern them1/ - but this result is not at all certain. Otherwise, of course, the legislature could respond to this potential problem by amending RCW 35.23.352, supra, so as to delete or at least modify the requirement now contained therein for bidding on personal service contracts by those three classes of cities which, alone, are covered by that statute.
In the case of all other municipalities, including code cities (see, AGO 1972 No. 24 [[to Municipal Research Council on October 25, 1972]], copy enclosed), cities of the first class, and counties of any class, the applicable bid laws are currently silent with respect to personal service contracts. From this it follows that in the case of those municipalities it is wholly discretionary with their governing bodies (or other contracting authorities) as to whether or not bids will be required in connection with contracts for professional or other personal services. [[Orig. Op. Page 3]] Accordingly, in those cases it is unquestionably permissible for the public agency involved to take into consideration the applicable canons of professional ethics governing the profession whose services are being sought in determining whether to call for bids for those services.
We trust the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Discargar v. Seattle, 25 Wn.2d 306, 171 P.2d 205 (1946), and In re Tyler's Estate, 140 Wash. 679, 250 Pac. 456 (1926).