Untitled Texas Attorney General Opinion ( 1963 )

THEATTORNEYGENERAL OF TEXAS AUSTIN m.TExas February 12, 1963 Hon. H. R. Nieman, Jr. Opinion No. C- 14 Executive Director State Building Commission Re: Construction of contract Austin, Texas between the State Building Commission and Floyd R. Dear Mr. Nieman: Palmer Landscape Company. You have requested an opinion from this office con- cerning construction to be given certain.provislons contained in a contract entered into between the State Building Commission and the Floyd R. Palmer Landscape Company. In October, 1962,the State Building Commission ad- vertised for bids covering certain landscaping around the Sam Houston State Office Building, and copies of the specifications and plans were issued as official documents for bid purposes. The specifications and plans for the landscaping around the Sam Houston State Office Building were ultimately made a part of the contract entered into between the State Building Commission and the Floyd R. Palmer Landscape Company. The specifications for the landscaping around the Sam Houston State Office Building, Project No. 6104, set forth a bid proposal form to be submitted by each bidder which is set forth in part as follows: "The undersigned, in compliance with your Invitation and Instructions to Bidders, for bids for 'Landscape and Area Development.about the Sam Houston State Office Building,' Austin, Texas, and having examined the Plans, Specifications and all related documents as prepared by the State Building Commisslon, as well as the site of the proposed project, including the availability of materials and labor, hereby proposes to furnish all material, labor, tools, equipment and necessary incidentals to complete all work as set forth in the Contract Documents, in accordance therewith, in the time set forth herein, and at the prices stated below which include all expenses and allowances. "BASE PROPOSAL: Shall include all labor and materials, as stated above, to complete all work -56- HOG. H. R. Nleman, Jr., Page 2 (C- 14 ) indicated and specified for the sum of: II . Dollars($ 1 "UNIT PRICES: In accordance with the speci- fications covering unit prices, the undersigned agrees to the following prices, in place: "A) Sidewalks, pebble finish concrete: ($ 1 per square foot. "B) Top so11 fill: ($ 1 per cubic yard "C) Hand excavation of planting beds, dirt: ($ 1 per cubic yard "D) Granite Benches: (8 ) per bench installed The specifications for Project No. 6104 further provide that: "DEFINITION OF UNIT PRICES: 1) It is understood and agreed that the Unit Price amounts shown on the proposal are the total amounts per unit to be added or deducted from the contract price in base there is a discrepancy or variation in the quantities as originally intended by Con- tract Documents to that actually installed in ac- cordance with the original intention. 2) It is further understood and agreed that extra work ordered by the owner and covered by the unit prices shall be the total amount per unit to be added to the contract price for said extra work. -57- Ron. H. R. Nieman, Jr., Pages3 (C- 14 ) 3) It is further understood and agreed that work ordered abandoned by thenCwner, after the con- tract is executed, and covered by the unit prices shall be amount per unit, to be deducted from the Contract price for such deletion of work." On November 5, 1962,,the bids on Project No. 6104 were opened and the contract awarded to F~loydR. Palmer Land- scape Company on the basis of a Base Proposal of $16,161.11. The other Base Proposals ,bidb other bidders were in amounts of $23,049.35, $17,445.19 and 4 19,769.00. The Unit Prices set forth in the bid proposal by the Floyd R. Palmer Landscape Com- pany were $.65 per square,foot ~for'sidewalks,$3.00 per cubic yard for top soil fill $5.00 per c,ubicyard for hand excavation of planting beds, and $450.00,per granite bench installed. On the 19th day of November, 1962, a contract was exe- cuted by the State Building Commission and the Floyd R. Palmer Landscape Company which provides in part that: I, . . .the Contractor hereby agrees with the Owner to commence and complete the construction of certain public works described as Landscape and Area Development About the Sam Houston State Office Building. . .as shown on the plans, as described in the specifications, the contract documents, all addenda thereto, the proposal for construction including the acceptance of the base proposal, together with the Contractor's proposal for deduction changes or deletions, hereinafter called the project, for the sum of SIXTEEN THOUSAND ONE HUNDRED SIXTY-ONE AND ll/lOO DOLLARS ($16,161.11) . . .The following unit prices shall be used in computing additions and deductions to be made in the Contract, if required, where depths and/or quantities may vary from the plans: 1. Sidewalks, pebble finish concrete- $.65 per square foot 2. Top soil fill- per cubic yard 3.00 3. Hand excavation of planting beds dirt per cubic yard 5.00 4. Granite Benches per bench in- stallecl " 450.00" (Emphasis added) ,~ . . Mr. H. R. Nieman, page 4 (C- 14 ) The Floyd R. Palmer Landscape Company has now informed the State Building Commission that they will lose money on the completion of Project No. 6104 for the reason that they inter- preted the Unit Prices contained in the bid proposal and the contract to be the amount they would receive over and above the Base Proposal for performing the work specified In connec- tion with the Unit Price items. A careful study of the specifications for Project No. 6104 discloses that the definition of Unit Prices sets forth that: .the Unit Price amounts shown on the proposil'are the total amounts per unit to be added or deducted from the contract price in case there is a discrepancy or variation in the quantities as originaliy intended by Contract Documents to that actually Installed in accord- ance with the original intention." Also, it will be noted that in the contract entered into between The State Building Commission and the Floyd R. Palmer Landscape Company there is found the provision that: I, . . .the following unit prices shall be and deductions to Consequently, we are of the opinion that the considera- tion set forth in the contract between the State Building Commis- sion @the Floyd R. Palmer Landscape Company, in the amount of $16,161.11, is the total consideration to be received by the Floyd R. Palmer Landscape Compan for completion of its contract obligation under Project No, 610z. THIS contract price of $16,161.11 may only be varied, insofar as the Unit Price items are concerned, to the extent that If the State Building Commls- sion should desire to enlarge or reduce the amount or quantity of work to be done on those items covered by the Unit Price that such Unit Prices would be used in adjusting, either up or down, the contract price. SUMMARY The contract price of $16,161.11, as set forth in the contract between the State Building Commission -59- Hon. H. R. Nieman, page 5 (C- 14 1 and the Floyd R. Palmer Landscape Company pertaining to Project No. 6104, is the total consideration to be paid Floyd R. Palmer Construction Company for com- pletion of its contract obligations, and such con- tract price may only be varied, Insofar as Unit Price items are concerned, to the extent that if the State Building Commission should desire to enlarge or reduce the work to be done on those items covered by the Unit Price that such Unit Prices would be used in adjusting, either up or down, the consideration set forth in the contract. Yours very truly, WAGGONER CARR Attorney General PB:wb:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Frank Booth John Reeves Joe R. Long Scott Garrison APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -60..