February 26, 1992
Subject:
Department of Transportation; Department of Administration; Purchases and Contracts
Requested by:
D. W. Bailey, P.E. Chief Engineer – Operations Department of Transportation
Question:
Are contracts awarded for grass mowing services along public highways governed by NCGS §
136-28.1(f) or NCGS § 143-49(3)?
Conclusion:
NCGS § 143-49(3) vests in the Secretary of Administration the power, authority and duty:
"To purchase or to contract for, by sealed, competitive bidding or other suitable means, all
contractual services and needs of the State government, or any of its departments, institutions, or
agencies; or to authorize any department, institution or agency to award or contract for such services.”
Therefore, absent specific statutory authority to the contrary, contracts for services required by
any agency of State government remain under the jurisdiction of the Department of
Administration unless there has been a delegation of that authority to an individual agency.
Beginning in 1986, the Department of Transportation initiated a program under which public
bids were solicited for grass mowing services along public highways. The Department of
Administration, under its rules and regulations, has delegated to the Department of
Transportation partial authority to administer the competitive bid process, while retaining
jurisdiction over final award and certain other aspects of the process. It has been suggested that
the Department of Transportation may have exclusive jurisdiction over grass mowing contracts
pursuant to NCGS § 136-28.1(f) which states:
"The Department of Transportation is required to solicit proposals under rules and regulations
published by the Department of Transportation for all contracts for professional engineering
services and other kinds of professional or specialized services necessary in connection with
highway construction or repair that are over ten thousand dollars ($ 10,000.00)." (emphasis added)
It is our opinion that grass mowing is not a professional or specialized service within the
meaning of the statute. The professional or specialized services referenced in NCGS § 13628.1(f) must be ". . . necessary in connection with highway construction or repair . . . ". Mowing
grass on the right of way along public highways is a maintenance function rather than a form of
highway construction or repair.
We are aware that in Wilmington Shipyard v. North Carolina State Highway Commission, 6
N.C. App. 649, 171 S.E.2d 222 (1969), the North Carolina Court of Appeals stated that a contract for maintenance of a ferry boat constituted "construction." The contract in that case, however, was entered into pursuant to the provisions of NCGS § 136-28.1(a) for the repair and reconditioning of the ferry boat, which was necessary to restore it to service. The court concluded that inasmuch as ferry service is a part of the public highway, the restoration of ferry service constituted highway construction.
It is our view that grass mowing is not substantially related to the functional utility of public highways. As such, contracts for grass mowing services are maintenance service contracts placed under the jurisdiction of the North Carolina Department of Administration by NCGS 143-49(3).
LACY H. THORNBURG Attorney General
Grayson G. Kelley Assistant Attorney General