Untitled Texas Attorney General Opinion

Opinion

December 22, 1949

Hon. Raymond E. Wagee opinion ao. v-981. county Attorney Galveston County Re: The authority of the Galveston,Texas CommlssIoIlers'court to revlse'bullding speclfIoatIonsand add $1999.57 to.the contract nrlce vltb- out raadv&tising for Dear air: competitive -. _. bids. Your request for an oplnloa Is In part as fol- lovs: "The CommlssIonersCourt entered into a contract vlth R. P. F'rankvbloh vas avard- ed after complyingvith the statute on a bid of $5813.16, and thereafter the City Bulld- lng Inspector refused to issue a permit for the oonetructlonof the building which vas to be a public rest room at East Beach Play- ground outside the Seavall of the City of Galveston,Texas. on ootober 14tl+ 1949, the CommissionersCourt, because addltlon- al ohanges had~to be made ~$0comply with the building oode of the~~clty'of'Galveston, passed a resolution (e copy of vhtch Is:ea-~ olosed) authorizingthe auccessful,bldd&r, R. P. Frank to make the changes for a dlf- ference of $1999.57 aud excluded a tile floor vhlch vas In the original plans. The CommIssIonersCourt did not advertise.for nev bids because they felt that under Art- icle 2368a, Seotlon 2 of the Revised Civil Statutes of Texas the amount vas under $2000.00 and that additional bids vere not necessary. n. . .

"'Does the Court have authority to let Mr. prank complete the contraot vlth tile changes made In the resolution vLthout

L Hon. Raymond E. Magee, page 2 (v-981) ' resdvertlsing for additional bids?'"

We am unable to find among the documents vhlch you present for our conslderatlon any information from which we might determine in what particular the building contract Is violative of the building code of the City of Galveston. It follows that neither are ve able to determine exactly what changes were made in the contract In question, other than the exclusion of s tile flaor from the original plans. The submitted facts do reveal, however, that changes were made In the speci- fications which, as advertised, were the basis of ths bids upon which the contract was awarded. The rules as to vh& there must be a new sd- vertisement for bids when changes are made in the specl- floations submitted as the basis for bids In the first Instance are well stated In 43 Amerloan Jurisprudence 789, Public Works and Contracts, Section 46, as follows: ,I . . . After bids have been made upon the basis of plans and specIfIoatIons prepar- ed by public authorities and given out to all Interested bidders, no material or substantial change In any of the terms of such plans and specifications will be allowed without a new advertisement giving all bidders opportunity to bid under the new plans and specifications. . . . "Cases are legion In which contracts have been condemned by reason of the departure from ,the notice or specifications In some particular which was substantially favorable to the bld- der. Among particular departures from the ad- vertised plans .and specIfIcatIons that have been regarded as material may be mentioned an exten- sion of the time within which the proposed work is to be oompleted, In oases wheretime Is of the essenoe of the oontract,,a stipulation for the use of paving materials different from that designated In the advertised plans and speclfi- oatlons, or setting a different price for a portion of the work. And the courts will not permit this rule to be circumvented Indirectly by permitting public authorities after entering Into a legal contract pursuant to the advertised plans and speolflcatlons, later to make a new contract or supplemental contract with the suc- cessful bidder embodying changes In those plans ’ .

Hon. Raymond E. Ma&e; pige 3 (V-981)

and speclfloations.. . ." See also Iowa-R~braakza LI city of Cournl the annotatzon, Yoa state that the ohanges neoessary to com- ply vlth the building oode oaused the addition of $1999.- 57,to a contract originally aaarded on a $5814.16bid as a general rnle, vhether a ohange Is "substantial"Is s question of fact. It is onr opinion, hovever, that changes amountingto more than one-third of the original oontraot prloe must be.oonslderedsubstantialand materl- al. In that oase the situationvhloh you present to us comes within the rules state&above, and, notwithstand- ing the additionalamount is less than $2,000, the ooun- ty is required to readvertlaefor bids In compliance with the provIsIons of Article 2368a, Vernon's Civil Statutes. _. SUMMARY When material and substantialchanges, amounting to $1999.57 (more than one-thiti of the original oontraof prloe), are made by the County in the plans and speoFiloatI&s for a public building after a oontract for the construction of that building has been made In oompllancevIth Article 2368a, V.C.S., the County must readvertlse for bids, not- withstandingthe additional amount is less than two thousand ($2,000) Dollars. Yours very truly, ATTORNEY GENRRAL OF !CRXAS

ATTOW GXRXRAL JR:EJ:b:mv Assistant

X. Jacobson Assistant