Purchase and Contracts; Department of Administration; Consultant Service Contracts

Subject:

Purchase and Contracts; Department of Administration; Consultant Service Contracts.

Requested By:

Ray DeBruhl Construction Division Department of Administration

Question:

Do the provisions of G.S. 143-64.20 et seq. apply to contracts entered into by the Department of Administration with engineering or architectural firms for planning, design, construction or renovation services?

Conclusion:

No.

G.S. 143-64.20 provides that "(b) No State agency shall contract to obtain services of a consultant or advisory nature unless the proposed contract that has been justified to and approved in writing by the Governor. . . ." (Emphasis supplied) The Act provides that the Governor must find certain facts before approving the contract, including the necessity for it, that it cannot be performed by a State agency, that the estimated cost is reasonable, that the funds have been appropriated for such contract or they are otherwise available, and that the rules of the Division of Purchase and Contract have been complied with. The Act does not define the term "services of a consultant or advisory nature."

Chapter 129, Article 7 of the North Carolina General Statutes, gives the North Carolina Capital Building Authority the power and duty "to select and employ architects, engineers, and other supervise the construction of buildings and other capital improvement projects. . . ." Pursuant to

G.S.

129-42.1, this power and duty applies to ". . . all institutions and agencies of the State of North Carolina . . ." with certain listed exceptions.

G.S.

143-341(3) authorizes and requires the Department of Administration to ". . . supervise the letting of all contracts for the design, construction or renovation of all State buildings." Inasmuch as Chapter 129, Article 7, was adopted by the General Assembly subsequent ot G.S. 143-341(3), the Department of Administration has final jurisdiction only over contracts for architectural or engineering services required by State agencies not under the jurisdiction of the North Carolina Capital Building Authority.

It is the opinion of this Office, however, that the term "services of a consultant or advisory nature" as that term is used in G.S. 143-64(b) does not include such contracts for architectural or engineering services. Chapter 129, Article 7, and G.S. 143-341(3) demonstrate a more specific intent by the General Assembly to place the authority for awarding these contracts with the North Carolina Capital Building Authority and the Department of Administration.

This Office has previously taken a position consistent with this opinion in regard to architectural and engineering contracts for highway construction. See 45 N.C.A.G. 71 (1975). In that opinion we ruled that contracts for such services are placed under the control of the Board of Transportation by Chapter 136 of the General Statutes and were therefore not subject to the provisions of G.S. 143-64.20 et seq.

Rufus L. Edmisten Attorney General

Grayson G. Kelley Assistant Attorney General