Untitled Texas Attorney General Opinion ( 1957 )

TREA``~ORNEY GENERAL OFTEXAS gag 16, 1957. Honorable Wm. J. Burke, Opinion No. WW-134 Executive Director, State Boardsof Control, Re: Does the Board of Con- Austin, Texas. trol have authority to waive performance under a construction contract awarded on bids when the contractor later claims that he did not include certain items in his bid which were shown on the drawings made a part of Dear Mr. Burke: the bid invitation? You have requested our opinion on the following question: "Does the Board of Control have authority to waive performance under a construction contract awarded on bids when the contractor later claims that he did not include certain items in his bid which were shown on the drawings made a part of the bid invitation?" In reply to our request for additional information, you have stated: "Bids were originally received for this pro- ject on June 9, 1955 and were rejected due to the fact that they exceeded the appropriation. The window schedule on Sheet 506-3 of drawings in Group 5, Division A calls for Venetian blinds in certain windows of Building 506. Venetian blinds were not indicated in any other part of the plans and specifications. However, in the second paragraph under Art. 9 of the General Conditions of the Specifications is the following statement, 'Unless otherwise specified, all materials shall be new and both workmanship and materials shall be of good quality. The Contract- or shall, if required, furnish satisfactory evi- dence as to the kind and quality of materials.' Honorable Wm. J. Burke, page 2 ww-134 "Bids were received on the revised plans and specifications on July 14, 1955, and the contract was awarded to 9. 0. & C. D. Yar- brough Construction Co. The plans and speci- fications relating to the Venetian blinds were not changed in any way in the revised set. "If the plans and specifications concerning Venetian blinds were changed, they were changed by the Architects prior to the original advertise- ment for bids and issuance of the plans and speci- fications to bidders." Under agreement dated August 16, 1955, 9. 0. and C.D. Yarbrough Construction Co. has agreed to provide all the materials and perform all of the work as shown by the draw- ings and described in the specifications prepared by Fehr and Granger, and Niggli and Gustafson, associated Architects, and under the agreement the drawings and specifications pre- pared by such Architects are made a part of the contract for all purposes. In the drawings of Group V, Division A, Sheet 3, the window schedule contained therein requires that Venetian blinds shall be affixed to the windows of Building No. 506. In the written specifications there are no specific details written concerning these Venetian blinds. However, in the second paragraph of Article 9, of the General Conditions of the specifications, the following statement is found: "Unless otherwise speciffed, all materials shall be of good quality. The Contractor shall, if required, furnish satisfactory zvldence as to the kind and quality of materials. Since the Contractor has agreed to install Venetian blinds to the windows of Building 506 by agreeing to perform all of the work and furnish all materials called for in the drawings and since this was a condition upon which all bld- derswere required to bid, it Is our opinion that the Board of Control does not have the authority to waive the performance of this condition of the contract, and that the Contractor is required to install Venetian blinds in accordance with the provisions of the General Conditions above quoted. The above answer to your question is not to be con- strued as preventing the Board of Control from entering a change order for removing the Venetian blfnds from the con- tract, provided appropriate credits are given by the Con- Honorable Wm. J. Burke, wk3e 3 WV-134 tractor, pursuant to the specifications. SUMMARY The Board of Control does not have authority to waive performance under a construction contract awarded on bids, when the contractor later claims that he did not include certain items in his bid, which were s~hownon the drawings made a part of the bid invitations. Yours very truly, WILL WIISON Attorney General JR:pf:rh APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman L. P. Lollar J. L. Smith Grundg Williams REVIEWED FOR THE ATTORNEY GENERAL By: Geo. P. Blackburn