THEA~ORNEY GENERAL 

OFTEXAS 

Honorable William J. Burke 

Executive Director 

Opinion No. WW-135 

State Board of Control 

Austin, Texas. 

Re: Does the State Board of 

Control 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 

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 

concerned?' 

entity so far as completion date is 

This question Is based upon the following factual 

information contained in your request: 

nOn August 16, 1955, t.he State 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 construction 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 speclflcations. 'The State of Texas will make separate contracts on separate groups to a low bidder 

80 that he will receive 100% payment on completion 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 contractor 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 contractor 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 contracts 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~fore the 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 

Since the obligation of the State is 

upon completion of the work for each group, 

paid until the contractor has completed the 

ed In the specifications for each group. 

SUMMARY 

w-135 

to pay the 100% 

thia cannot be 

grading requirThe 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 

JR:at:rh 

APPROVED 

OPINION COMMITTEE: 

H. Grady Chandler 

Chairman 

L. P. Lollar 

Grundg Williams 

J. L. Smith 

John Reeves 

Assistant 

REVIEWEB FOR THE ATTORREY GERERAL 

By: Geo. P. Blackburn