Moore, 041521 KYAGO, AGO OAG 21-3

• Case Date: April 15, 2021
• Court: Kentucky

James H. Moore, III AGO OAG 21-3 No. OAG 21-03 Kentucky Attorney General Opinion Commonwealth of Kentucky Office of the Attorney General April 15, 2021          Subject: Whether, under KRS 45A.380(3), the City of Ashland must competitively bid to procure the services of an engineer that would be granted broad authority over the construction phase of the contract pursuant to a specific template agreement.          Requested by: James H. Moore, III Counsel for the City of Ashland          Written by: J. Michael West Assistant Attorney General          Syllabus: KRS 45A.380(3) requires that the City competitively bid for the services of an engineer providing construction management services.          OPINION OF THE ATTORNEY GENERAL          The City of Ashland asks whether an engineer who administers the construction phase of a contract is providing “construction management services” rather than professional engineering services. This distinction is important because procurement rules allow engineers not providing construction management services to avoid competitive bidding.          The City of Ashland has adopted an ordinance that incorporates portions of the Kentucky Model Procurement Code. See Ashland Ordinance Sec. 37.046.1 Under one provision relevant here, a “local agency may contract or purchase through noncompetitive negotiation only when a written determination is made that competition is not feasible and it is further determined in writing by a designee of the local public agency that [t]he contract is for the services of a licensed professional, such as attorney, physician, psychiatrist, psychologist, certified public accountant, registered nurse, or educational specialist; a technician such as a plumber, electrician, carpenter, or mechanic; or an artist such as a sculptor, aesthetic painter, or musician, provided, however, that this provision shall not apply to architects or engineers providing construction management services rather than professional architect or engineer services[.]” KRS 45A.380(3). Thus, under KRS 45A.380, Ashland may engage in noncompetitive negotiation to obtain the services of an engineer...