Which agency controls bidding for grass mowing along North Carolina public highways: the Department of Administration under G.S. 143-49(3), or the Department of Transportation under G.S. 136-28.1(f)?

Plain-English summary

The North Carolina Department of Transportation (DOT) ran a grass-mowing program along state highways. Starting in 1986, it solicited public bids for the mowing work. The Department of Administration (DOA), which holds the general state-government purchasing authority under G.S. 143-49(3), had delegated to DOT the partial authority to administer the competitive bid process while retaining jurisdiction over the final award and certain other parts of the process.

DOT's Chief Engineer for Operations asked the AG whether grass-mowing contracts actually belonged under DOA's general purchasing authority at all, or whether they fell within DOT's exclusive authority under G.S. 136-28.1(f), which directs DOT to solicit proposals "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."

The AG read the controlling statutes against each other.

The default rule. G.S. 143-49(3) gave the Secretary of Administration the power to purchase or contract for "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." Absent a specific carve-out, every contract for services by a state agency ran through DOA, or through an agency to which DOA had specifically delegated.

The carve-out. G.S. 136-28.1(f) was a carve-out for DOT, but a narrow one. It covered only "professional engineering services" and other "professional or specialized services" that were "necessary in connection with highway construction or repair." Both adjectives mattered: the service had to be professional or specialized, and it had to be connected to construction or repair.

The AG's reading: grass mowing was not professional or specialized in the sense the statute meant. And critically, mowing was a maintenance function, not a form of highway construction or repair. The statutory phrase "in connection with highway construction or repair" did not extend to ongoing maintenance of the right-of-way landscaping. So G.S. 136-28.1(f) did not apply, and the default G.S. 143-49(3) rule controlled. DOT's role was limited to whatever authority DOA had specifically delegated for the bid-administration portion of the process.

The AG distinguished Wilmington Shipyard v. North Carolina State Highway Commission, 6 N.C. App. 649 (1969), where the Court of Appeals had held a contract for repair and reconditioning of a ferry boat constituted "construction" because ferry service was part of the public highway and the restoration was necessary to bring it back into service. The contract there was under G.S. 136-28.1(a), and the work was substantive restoration of a highway component. Grass mowing on the right-of-way edge was nothing comparable. The AG explicitly characterized mowing as "not substantially related to the functional utility of public highways."

The bottom line: grass mowing was a maintenance service contract under DOA jurisdiction by virtue of G.S. 143-49(3), subject to whatever delegated bid-administration role DOA had given DOT.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

North Carolina's state purchasing framework has been reorganized multiple times since 1992. DOT's specific service contracting authority has been expanded in places. Anyone with a current question about whether a particular service contract goes through DOA or sits inside a DOT-specific bucket should check the current G.S. 143C/143/136 chapters and current DOA rules.

Common questions

Q: Why did the carve-out in G.S. 136-28.1(f) not apply?
A: Two reasons working together. The AG read "professional or specialized services" to exclude routine outdoor work like grass mowing. And the AG read "in connection with highway construction or repair" as not reaching ongoing maintenance, which is a separate ongoing function from construction or repair events.

Q: Did this make DOT lose all role in grass-mowing contracts?
A: No. The opinion acknowledged DOA had delegated partial authority to DOT to administer the competitive bid process. DOT could continue to do the operational pieces of bidding within the scope of DOA's delegation. What DOT could not claim was exclusive control under G.S. 136-28.1(f).

Q: What about other DOT service contracts? Are they all under DOA?
A: The opinion is specific to grass mowing. Other DOT contracts have to be analyzed against the two prongs of G.S. 136-28.1(f). A contract for highway design engineering would clearly fit (professional/specialized, and connected to construction/repair). A contract for traffic signal installation might. A contract for janitorial service at a rest area might not.

Q: Why did Wilmington Shipyard not control?
A: Because the ferry boat repair was actual restoration of a transportation asset back to service, not ongoing peripheral maintenance. The Court of Appeals had treated it as construction because ferry service is part of the public highway. Grass on the right-of-way edge does not perform a transportation function the way a ferry boat does, so the analogy did not transfer.

Background and statutory framework

The statutory tension was between two grants of authority:

• G.S. 143-49(3) (the general default). Authority of the Secretary of Administration to purchase or contract for all contractual services for state government, or to delegate that authority to an individual agency. The provision is broad and is the baseline for state purchasing.
• G.S. 136-28.1(f) (the DOT carve-out for certain services). Required DOT to solicit proposals under DOT rules for all contracts for professional engineering services and other professional or specialized services necessary in connection with highway construction or repair over $10,000.

The AG read the carve-out narrowly. Two requirements had to be met: the work had to qualify as "professional or specialized," and it had to be "necessary in connection with highway construction or repair." Grass mowing failed both.

The case-law backdrop was a single Court of Appeals decision, Wilmington Shipyard. That case used G.S. 136-28.1(a) (a sibling subsection) to bring a ferry-boat repair contract within "construction" because ferries are part of the public highway system. The AG distinguished it on substance: a ferry boat is a transportation asset whose restoration restores transportation service. Grass mowing alongside a highway does not perform an analogous function.

The opinion was written by Lacy H. Thornburg, then-Attorney General, with Grayson G. Kelley as Assistant Attorney General, in February 1992.

Citations

• N.C.G.S. § 136-28.1(a) (DOT contracting authority; basis for Wilmington Shipyard)
• N.C.G.S. § 136-28.1(f) (DOT solicitation authority for professional/specialized services in connection with highway construction or repair)
• N.C.G.S. § 143-49(3) (general DOA purchasing authority)
• Wilmington Shipyard v. North Carolina State Highway Commission, 6 N.C. App. 649, 171 S.E.2d 222 (1969) (ferry boat repair as construction; distinguished)

Source

• Landing page: https://ncdoj.gov/opinions/department-of-transportation-department-of-administration-purchases-and-contracts/

Original opinion text

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 § 136-28.1(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