Untitled Texas Attorney General Opinion ( 1968 )


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  •                    Txm     ATTORNEY    GENERAL
    OF TEXAS
    Ausniw.T~x~u       78711
    CxtAWF”RD   c. MARTXN
    *x-l-ORNEY GENEXXAL
    February 6, 1968
    Hon. Robert S, Calvert       Opinion NO.    M-198
    Comptroller of Public
    Accounts                   Re:     Construction of Sec-
    Austin, Texas                        tion 8(C) of Article
    678f, Vernon's Civil
    Statutes, relating to
    the certification by
    the Comptroller that
    a contract awarded by
    the State is not in
    excess of the amount
    available for such
    Dear Mr. Calvert:                    project.
    Your request for an opinion reads as follows:
    "The Comptroller of Public Accounts
    re,spectfully requests your official opinion
    in regard to the question stated hereinbelow.
    "Section 8(C) Article 678f of the State
    Building Constructjon Administration Act pro-
    vides pertinently as follows:
    "'Subject to the applicable
    provisions of other law respect-
    ing the award of State contracts,
    the contract or contracts shall
    be awarded to the qualified bid-
    der making the lowest and best
    bid: but no contract shall be
    awarded for a sum in excess of
    the amount which the Comptroller
    shall certify to be available
    for such project . . .'
    "Under normal administrative proce-
    dures a proposed contract award for a pub-
    lic works project is forwarded to the Comp-
    troller for certification of funds available
    therefor from State appropriations.  In the
    instance in which adequate 5tate funds have
    -952-
    Hon. Robert S. Calvert, page 2, (M-198)
    been appropriated for the complete per-
    formance of the project the Comptroller
    certifies on the proposed contract award
    that sufficient funds are available for
    the contract, whereas in the event State
    appropriations are less than the proposed
    contract price the certification states
    the exact amount available for the project.
    "The Comptroller has received requests
    for payment of claims under construction
    contracts which were awarded:
    1) Without requesting the
    Comptroller's certifications but
    for which there were sufficient
    funds available to pay the face
    amount of the contract: and
    2)  Without requesting the
    Comptroller's certifications, but
    for which the funds available were
    insufficient to pay the face amount
    of the contract; and
    3) For an amount in excess of
    the funds which were certified to be
    available for the contract.
    "In view of the foregoing, your official
    opinion is requested whether the Comptroller
    may make progress payments or pay other claims
    pursuant to an awarded public works contract
    under each of the circumstances listed above."
    The provisions of Section 8(C) of Article
    678f, Vernon's Civil Statutes, quoted in your request,
    were construed in Attorney General's Opinion No. M-177
    to authorize the Comptroller to execute certifications
    provided therein when the amount of State funds appro-
    priated by the Legislature, together with the amount of
    Federal funds approved and obligated for such project,
    is equal to or exceeds the amount of the awarded con-
    tract.  It was further held that State funds may be ex-
    pended by progress payments until the appropriation has
    been exhausted.
    Under the facts stated in your first question,
    -953-
    Hon. Robert S. Calvert, page 3, (M-198)
    there were sufficient funds available to pay the amount
    of the award, therefore, such award created an obliga-
    tion binding on the State and you are authorized to make
    payment of claims under such contract.  However, as good
    business practice, the Comptroller's certificate that
    sufficient funds are available, should be secured before
    the contract is awarded.
    Under the facts stated in your second and third
    questions, funds available for such projects were insuf-
    ficient to pay the amount of the award. Section 8(C) of
    Article 678f, Vernon's Civil Statutes, specifically pro-
    vides, ". . . no contract shall be awarded for a sum in
    excess of the amount which the Comptroller shall certify
    to be available for such project, . . . .(I Thus, where
    an award is made in excess of the amount available to
    pay the award, such award is made in violation of Sec-
    tion 8(C) of Article 678f and does not create an Obliga-
    tion binding on the State. Fort Worth Cavalry Club v.
    Sheppard, 
    125 Tex. 339
    , 83 S.W.Zd 660 (1935); State v.
    $.$G$n:vRo;",l;;~L3;3;          y;,;"Le:";i;.;,;     y&
    . .          .    . .
    error ref.); State v. Peilstein, 
    79 S.W.2d 143
    (Tex.Civ.'
    App. 1935, error dism.); State v. Steck Co., 
    236 S.W.2d 866
    (Tex.Civ.App. 1951, error ref.).
    Therefore, in making a contract governed by
    the provisions of Section 8(C) of Article 678f, Vernon's
    Civil Statutes, the officers of the State can exercise
    only those powers conferred on them by law; and if the
    award is made in excess of the amount available for such
    project, no legal liability exists against the State.
    See authorities cited above. Under such circumstances,
    the Comptroller is not authorized to make progress pay-
    ments by reason of the unenforceable contract.
    SUMMARY
    -------
    When an award for construction projects
    is made pursuant to the provisions of Section
    8(C) of Article 678f, Vernon's Civil Statutes,
    and such award is not in excess of the amount
    available for such project, progress payments
    for payment of claims under such construction
    contracts may be paid. Whenever an award for
    construction projects governed by the provi-
    sions of Section 8(C) of Article 678f, Vernon's
    Civil Statutes, is made for a sum in excess of
    -954-
    .   .
    Hon. Robert S. Calvert, page 4, (M-198)
    the amount available for such project, such
    award does not create a legal obligation
    against the State and the Comptroller is not
    authorized to issue warrants in payment of
    claims under such unenforceable contract.
    truly yours,
    2-h   ZZZ
    ORD C. MARTIN
    ney General of Texas
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Hawthorne Phillips, Chairman
    Kerns Taylor, Co-Chairman
    W. V. Geppert
    W. 0. Shultz
    Neil Williams
    James McCoy
    EXECUTIVE ASSISTANT
    A. J. Carubbi, Jr.
    -955-
    

Document Info

Docket Number: M-198

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017