Opinion Number ( 2006 )

Dear Mayor Dugas:

On behalf of the Village of Parks, you have requested the opinion of this office on the authority of the Village to amend a public works contract to provide an increase in the price of the contract due to material price increases incurred by the contractor. Specifically, the Village entered into a public works contract for the drilling of a new water well for the Village Water System. The contractor now claims that as a result of the recent hurricanes that struck the state the cost of PVC materials necessary to complete the project has risen an additional $13,697.65. The contractor has requested the Village amend the contract to pay the additional cost. The Village is concerned that if the contractor fails to perform and the project is re-bid there would be a delay in completion that could cause the Village problems if any of the existing 3 water wells which are now operating at full capacity fail.

Although R.S. 38:2212A(2) of the Public Bid Law authorizes a public entity to include in its bid specifications an escalation clause that would allow bidders to be protected against uncertainties as to availability and cost of materials and supplies, your request indicates that the contract for the drilling of the new water well did not contain such a provision. In addition, we know of no authority for the contract to now be changed so as to permit an escalation clause because of the price rise of the product the contractor is obligated to furnish in the performance of the contract.

As such, and in accordance with prior opinions issued by this office, it is the opinion of this office that, absent an escalation clause authorized by R.S. 38:2212A(2) and set forth in the original bid specifications, the Village of Parks is not authorized to amend the contract and pay the difference or additional cost of materials required to perform the contract for the drilling of the new water well. See Atty. Gen. Op. Nos. 79-1101, 80-11, 80-119 and 81-03.

We trust that this answers your inquiry.

Very truly yours,

CHARLES C. FOTI, JR. Attorney General

By: _____________________________ RICHARD L. McGIMSEY Assistant Attorney General Public Finance Contracts Section