Untitled Texas Attorney General Opinion ( 1957 )

THEA~ORNEY GENERAL OFTEXAS Honorable William J. Burke Opinion No. WW-135 Executive Director State Board of Control Re: Does the State Board of Austin, Texas. Control have authority to delete the rough and finished grading from one or more 'group contracts" involving grading and add this work to another con- tract which is a.part of the whole job but a separate entity so far as completion date is Dear Mr. Burke: concerned? You have requested an opinion on the following question: 'Does the State Board of Control have the authority to delete the rough and finished grading from one or more tgroup contracts' Involving grading and add this work to another contract which is a part of the whole job but a separate entity so far as completion date is concerned?' This question Is based upon the following factual information contained in your request: nOn August 16, 1955, t.heState Board of Control entered into contracts with 3. 0. and C. D. Yarbrough Construction Company for the remodeling of the Texas State School for the Deaf. "Since it was necessary to continue with school during the construction period, bids were received by building groups and the con- struction was scheduled in such a way as to interfere least with the school program. ..~ . - -. Honorable William J. Burke, page 2 WW-135 "The following is quoted from the specl- flcations. 'The State of Texas will make separ- ate contracts on separate groups to a low bidder 80 that he will receive 100% payment on comple- tion and acceptance of any phase of the work.' 3. 0. and C. D. Yarbrough Construction Company was the successful bidder in all groups for both general and mechanical work. "The specifications require the contractor to perform all rough grading and finished grading for each group. The contractor has requested 100% payment for several groups though grading on these groups has not been done. The Eoard of Control refused to approve the payment until all work in each group has been completed. The con- tractor is now requesting that the grading portion of the contracts which are otherwise complete be transferred to a group that is scheduled for completion at a later date. If he is allowed to make this transfer, he will deduct the cost of grading from each group and add that same cost to another group; the contract price on each group affected would be changed but at the completion of all groups the total contract price of all groups will be unchanged. The completed project would not be affected by this transfer, but there is the possibility that the contractor would, as the result of such transfer, have an economic advantage which was not proposed to all other bidders on this project at the time bids were received." Under agreement dated August 16, 1955, the contract- or has agreed to provide all materials and perform all the work as described in the specifications. Under the bid proposal the State of Texas agreed to make separate con- tracts on separate groups to the low bidder so that he would receive lOO$ payment on completion and acceptance of any phase of the work. Therefore, under the agreement, be~forethe contractor would be entitled to 100% payment for the work performed he must complete the work prescribed for each group. This prescribed work required that the grading be completed on each separate group. Therefore, if the State Board of Control deleted the grading from one or more groups and transferred such work to group 18 (road work) it would constitute a change of conditions upon which each bidder bid on the contract. Honorable William J. Burke, we 3 w-135 Since the obligation of the State is to pay the 100% upon completion of the work for each group, thia cannot be paid until the contractor has completed the grading requir- ed In the specifications for each group. SUMMARY The State Board of Control does not have authority to delete the rough and finished grading from one or more 'group contracts" involving grading and add this work to another contract which is a part of the whole job but a separate entity so far as completion date is concerned. Yours very truly, WILL WIISOR Attorney General John Reeves JR:at:rh Assistant APPROVED OPINION COMMITTEE: H. Grady Chandler Chairman L. P. Lollar Grundg Williams J. L. Smith REVIEWEB FOR THE ATTORREY GERERAL By: Geo. P. Blackburn