-
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