Unofficial Opinion 94-14
Legislation will be required to permit the Department of Transportation to exceed limits on professional services contracts placed by state law.
You have asked my unofficial opinion concerning whether the Department of Transportation (DOT) may extend, by supplemental agreement, the professional services contract it has entered into with TRW Transportation and Support Systems for the Advanced Traffic Management System (ATMS), authorized in Section 1107 of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, 105 Stat. 1914, 2048-60. Your concern was the limitation placed on supplemental agreements to DOT construction contracts by O.C.G.A. § 32-2-73, which prohibits DOT from executing supplemental agreements to such contracts which would exceed a 20% increase in the cost of the original contract. While, for the reasons stated below, the provisions of O.C.G.A. § 32-2-73 do not apply to this contract, the restrictions found in O.C.G.A. § 50-6-25 on the value of professional services contracts which can be awarded to any particular firm do apply to the contract with TRW. Legislation will be required to permit the Department of Transportation to exceed the limitations contained in O.C.G.A. § 50-6-25.
The Department's authority to enter into contracts is found at O.C.G.A. § 32-2-2(a)(5):
The department shall have the authority to negotiate, let, and enter into contracts with . . . any person . . . for the construction
or maintenance of any public road or any other mode of transportation or for the benefit of or pertaining to the department . . . in such manner and subject to such express limitations as may be provided by law.
As authorized by O.C.G.A. § 32-2-61(d)(1)(D), DOT negotiated a professional services contract with TRW for design and engineering services relating to the construction of the ATMS. When contracts for certain professional services are entered into by the Department, the manner and express limitations provided by the law governing such contracts must be considered. These provisions are found in Chapter 22 of Title 50 of the Code. Official Code of Georgia Annotated § 50-22-1 states:
The purpose of this chapter is to provide managerial control by the state over the acquisition of the professional services provided by architects, professional engineers, landscape architects, and land surveyors. It is declared to be the policy of this state to announce publicly requirements for such professional services, to encourage all qualified persons to put themselves in a position to be considered for a contract, and to enter into contracts for such professional services on the basis of demonstrated competence and qualification for the types of professional services required at fair and reasonable prices.
The contract between DOT and TRW was entered into pursuant to the requirements of O.C.G.A. § 50-22-1 et seq.
Without question this contract falls within the contracting authority of DOT. The ATMS is a part of the transportation improvements approved by Congress for the City of Atlanta for the 1996 Olympics. Since DOT "shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law," O.C.G.A. § 32-2-2(a)(1), a contract for transportation improvements affecting the public roads in the City of Atlanta is clearly one which the Department is authorized to make. The contract clearly benefits DOT, in carrying out its responsibilities concerning the ATMS, because DOT can contract for the professional services of persons who have the specialized expertise required for this project rather than having to hire employees who have such expertise or use current employees who may not have acquired this expertise.
Should the 20% limitation of O.C.G.A. § 32-2-73 apply to such contracts, which are not construction contracts but rather contracts for professional services which benefit DOT? The selection process for contracts for the professional services of architects and engineers clearly does not contemplate the selection of the lowest reliable bidder after sealed competitive bids have been received, as does the selection process for contractors on DOT construction projects. Consequently, there is no reason why O.C.G.A. § 32-2-73 should apply to contracts for professional services entered into by DOT. Originally enacted by Ga. Laws 1949, p. 373, as part of an act which had the fundamental purpose of prohibiting negotiated contracts for highway construction and providing that all such contracts be let by public bid, O.C.G.A. § 32-2-73 is an integral part of DOT's public bidding process for highway construction contracts. It is intended to ensure that contracts originally awarded by public bid to the lowest reliable bidder are not expanded beyond the cost and geographic scope of the original agreement by more than 20% through the subterfuge of negotiated supplemental agreements. See 1948-49 Op. Att'y Gen. p. 719. Where a contract may be negotiated, as authorized by statute, the purpose for which O.C.G.A. § 32-2-73 was intended by the General Assembly does not exist.
Once a professional services contract with an architectural or engineering firm has been entered into following the procedures set forth in O.C.G.A. § 50-22-1 et seq., O.C.G.A. § 50-22-7(a) provides authority for additional contracts to be entered into between the parties where existing drawings, specifications, designs or other documents can be reused by retaining the person who provided the professional services and prepared the original document. The Department of Transportation and TRW may, therefore, continue to enter into agreements for various phases of the ATMS Project.
However, O.C.G.A. § 50-22-7(c) makes the limitations found in O.C.G.A. § 50-6-25(b) applicable to such contracts. As discussed in Op. Att'y Gen. 92-35, the restrictions of this Code Section limit firms providing architectural and engineering services to DOT to a maximum of 10% of the total value of such contracts state-wide and 20% of the total value of such contracts for tollway purposes, regardless of any contracts an architectural and engineering firm may have with other state agencies. I am advised that TRW has exceeded the 10% limitation for DOT work. That being the case, legislation will be required to permit DOT to enter into additional contracts with TRW for the ATMS.
It is therefore my unofficial opinion that, while the provisions of O.C.G.A. § 32-2-73 do not apply to contracts for professional services which are governed by O.C.G.A. § 50-22-1 et seq., legislation will be required to allow the Department of Transportation to exceed the limitations on such professional services contracts found in O.C.G.A. § 50-6-25(b). We will, of course, be happy to assist you in the drafting of the necessary legislation to accomplish this result.
GEORGE P. SHINGLER Assistant Attorney General To permit DOT to exceed the 20% limitation of O.C.G.A. § 32-2-73 for the construction of Interstate 85 in Fulton, DeKalb and Gwinnett Counties, legislation was enacted by the General Assembly. 1957 Ga. Laws 535.