Ok.  I finally have a definitive answer for our community.  I got brave (while my manager is out of town – that’s the truth) and posted this question to our new Purchasing Manager and new City Attorney.  See their joint response below (you will also see I had started a long e-mail to him when he called me and I just sent as much as I had typed)…

 

I love their answer – It’s perfect for our community and may be useful to some of you.   I can’t tell you how relieved I am and how grateful I am for the Public Art Network.  Thank you also Elizabeth.Bowman@kcmo.org for posting this question. 

 

Thank you all for responding to my question

 

 

 

Tammy,

 

Thank you for your due diligence in wanting to abide by State Law & City Policy, while balancing the needs and practices of the City.  I appreciate you checking with me, and apologize that with each turnover of Purchasing Manager, it seems you relatively get a different set of rules each time you ask.  I hope to settle this once and for all, and give you enough information that should I separate from the City you may be able to provide this should you ever find yourself in a similar situation.

 

I talked to Megan, and we are on the same page in feeling that Artists are exempt of competitive bidding requirements due to their personal services offered.  Texas Gov’t Code is vague on the personal services exemption, however, The Texas Supreme Court has defined “personal services” to include only those services which are performed personally by the individual who contracted to perform them.  We both believe artists fall within this classification, so long as we are contracting with the individual and not a company and are paying “mainly” for labor.  Paying for materials would be acceptable too, so long as there is no markup on materials and it is strictly a reimbursement.

 

In coming to this answer, we both asked ourselves “what is it that state law is really trying to accomplish here?” to which, by reading in context of how professional services is address, we believe is “to approach the most highly qualified [Artist] capable of providing the services required, and negotiate a fair and reasonable price”.  We rationalized that when picking an artist for a high profile project, that a low bid competitive format wouldn’t work.  Now, however, low bid isn’t the only tool we have anymore, and requests for proposals and “Best Value” have changed the game; but when state law was initially written, it’s plausible to consider that low bid isn’t always the best bid thus this exemption was created.

 

We both feel that a competitive call for artists is a fantastic approach to diversify our selection process on the majority of our City projects, but represents a best practice and not necessarily a required step.  I applaud you for wanting to continue your call to artists, but do want to offer you the ability to contract directly with an artist on future projects as I imagine you’ll have other unique projects/areas that fit just right with that one artist in mind who works in a particular medium or unique style (the artistic tile art  you were explaining to me for example).

 

I hope this helps! Let me know if you have any questions!

 

Respectfully,

 

A. Bryce Davis

Purchasing Manager

City of Grand Prairie

From: Megan Mahan
Sent: Monday, January 22, 2018 11:31 AM
To: Bryce Davis
Subject:

 

Are contracts for personal services exempt from the requirements for competitive bidding?

Texas law specifically exempts contracts for personal services from the competitive bidding requirements.182 The Texas Supreme Court has defined “personal services” to include only those services which are performed personally by the individual who contracted to perform them.183 Further, for a contract to qualify as a contract for personal services, the compensation in the contract should mainly pay for the labor of the individual providing the service, not for such things as insurance or materials.184

For example, the attorney general held that a contract for the services of a construction manager was a contract for “personal services” and therefore not subject to competitive bidding requirements.185 The attorney general has also concluded that a contract for janitorial services would constitute a contract for personal services if a specific person is required to perform those services.186 However, the following have been found not to be exempt from bidding under the exemption for “personal services”: the provision of advertising space by a newspaper,187 a contract for microfilming records,188 an insurance contract,189 a contract to operate container terminal facilities in a port,190 and a contract for janitorial services that did not specify the particular person who was to perform the janitorial services.191Thus, these contracts were all subject to the competitive bidding requirements of Chapter 252 of the Local Government Code.

 

Megan Mahan

Assistant City Attorney

City of Grand Prairie

317 College Street

Grand Prairie, Texas 75050

972-237-8038

972-237-8650 (f)

www.gptx.org

 

 

 

Bryce,

 

I have a tough “situation” that I could use your take on. 

 

This e-mail is about the process to select an artist or artists for a project. 

 

As the Public Art Coordinator, I want to select artists who have the skills to do a good job.  Sometimes, the city might want a specific piece of art or a specific skill set or a specific style of art.  I usually know the budget for a project ahead of time.  So, in a way, it would be great if I could directly contact an artist who I know has the skills we need and ask them to develop a proposal given the budget.  If, based on experience, their proposal is a good value and meets the design criteria, it would be great to be able to hire them directly. 

 

Another way to handle artist selection, and the way most cities do it, is to host an artist’s competition by issuing a “Call to Artists.”  When you do that, you usually include the budget and ask artists to submit samples of their art work and then a selection committee selects a few finalists who are paid a stipend to develop a proposal for the project.  Then the proposals are selected by an art selection committee based on nine criteria. 

 

Another way to handle artist selection – similar to the one above – is for smaller projects, like our Traffic Signal Box Public Art Project with a budget of $2,000 per project, where you send out an open call to all artists and let them submit proposals.  The art selection committee selects the winners based on the best proposal.  The cost of the project, in this case, includes a preliminary design award ($250) and a secondary design award after the artists make any adjustments required for the specific project. 

 

Another way to handle artist selection is to go through a traditional Best Value bidding process via a Call to Artists, where you send out the Call (lists the details including the budget) and seek proposals and then create a short list of potential candidates who are then invited to develop a maquette (model) of their proposal.  Most programs pay each artists up to $2% based on the budget for the project to develop their proposals.  It is also standard practice to include travel costs for them to come and present to the committee.  The winning proposal is then selected competitively by a public art selection committee.  You have to plan for how many artists you will allow on your short list in advance so you can budget the stipends and potential travel costs in advance.  Usually, most programs will only offer the Call to Artists within their states to avoid too much cost on the travel side.  However, some very large projects are open nationally and the city may, or may not include a travel budget.  Then the artist has to decide if they will compete.  Also, some cities – depending on the project – don’t require the artist to present their proposal to the committee in person. 

 

Another way to handle artist selection, and something some larger cities do, is to pre-qualify artists without an art project.  They make it to a short list and then are eligible to be assigned projects as projects are available.

 

I’m asking about this because it’s a hot topic of discussion in the national Public Art Network list serve.  That’s where other art coordinators across the country share information to help each other.

 

I’m also asking because the city’s Administrative Directive #10 states that artists are exempt from the competitive bidding process and quotes Section 2254.003 of the Government Code.    That surprised me as I had thought they weren’t, so I was doing a competitive process…

 

 

 

I could really use some help from all on this question.  It might be a state-by-state thing.

 

The City of Grand Prairie’s Accounting Department interprets state law to say that artists are not exempt from competitive processes, so if your project costs more than $3,000, you must have a competitive process.  You are allowed to select the winner based on best value which includes an evaluation of qualifications. 

 

Section 2254 of the Government Code lists the professions that are exempt from a competitive process.  The professions the list are those that have a certification.  Here is the list:

 

(2)  "Professional services" means services:

  (A)  within the scope of the practice, as defined by state law, of:

       (i)  accounting;

       (ii)  architecture;

       (iii)  landscape architecture;

       (iv)  land surveying;

       (v)  medicine;

       (vi)  optometry;

       (vii)  professional engineering;

       (viii)  real estate appraising;  or

       (ix)  professional nursing;  or

  (B)  provided in connection with the professional employment or practice of a person who is licensed or registered as:

       (i)  a certified public accountant;

       (ii)  an architect;

       (iii)  a landscape architect;

       (iv)  a land surveyor;

       (v)  a physician, including a surgeon;

       (vi)  an optometrist;

       (vii)  a professional engineer;

       (viii)  a state certified or state licensed real estate appraiser;  or

       (ix)  a registered nurse.

 

Artists are not on that list, because there’s no state-recognized certification or license. 

 

So, according to our Accounting Department, our Public Art Program cannot select an artist directly.  We must host a competitive Call to Artists process.  An open call is better, but if we do a closed call, I have to get three quotes and attempt to find artists on the HUB list, which is hard.  I usually do the open call and still send it to HUBs who show up when I search “artist” on the commodity list and then the certified master bidders list – just to be safe.   

 

One good thing about this, is I believe it is more inclusive, giving other, less experienced artists a chance to at least decide if they want to compete.

 

I know other cities have a “training” process for emerging and experienced artist to develop an approved list.  I think, but I’m not sure, that they go through a competitive process to select the artists who will go through the training. 

 

As far as when the artist is hired, I’ve been working with our departments, especially as related to our Percent for Art program, to please give me enough notice to develop a Call to host a competition to get them on the project as early as possible. 

 

I hope some of my Texas counterparts and any others on PAN who have government purchasing laws can help me with this.  If the Accounting Department is interpreting the law wrong, I would sure like to know how to tell them.

 

 

 

Hello Art Admins;

 

Have you ever sent out an RFQ and hired the artist directly from there without them developing a proposal?  I’m thinking you are missing a big piece of the process by eliminating the selection panel on the final process by doing so.  Would appreciate your thoughts and opinions please.

 

 

Elizabeth Bowman Public Art Administrator Architecture Division General Services Department City of Kansas City, Mo. 414 East 12th Street Kansas City, MO 64106 Email: Elizabeth.Bowman@kcmo.org Phone: 816-513-3422             Fax: 816-513-2727

 

 

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