## THEATTORNEYGENERAL OF TEXAS AUSTIN m.TExas February 12, 1963

Hon. H. R. Nieman, Jr. OpinionNo. 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 concerning construction to be given certain.provislonscontained in a contract entered into between the State Building Commission and the Floyd R. PalmerLandscape Company.

In October,

## 1962, the State Building Commission advertised for bids covering certain landscapingaround the Sam Houston State Office Building, and copies of the specifications and plans were issued as official documents for bid purposes. The specificationsand plans for the landscapingaround the Sam Houston State Office Building were ultimatelymade a part of the contract entered into between the State Building Commission and the Floyd R. Palmer Landscape Company.

The specificationsfor the landscapingaround the Sam Houston State Office Building, ProjectNo. 6104, set forth a bid proposal form to be submittedby each bidder which is set forth in part as follows:

"The undersigned, in compliancewith your Invitation and Instructions to Bidders, for bids for 'Landscapeand Area Development. about the Sam Houston State Office Building,'Austin, Texas, and having examined the Plans, Specificationsand 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 statedbelow 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 accordancewith the specifications covering unit prices, the undersigned agrees to the followingprices, in place: "A) Sidewalks, pebble finish concrete: ($ 1 per square foot. "B) Top so11 fill:

per cubicyard ($ 1 "C) Hand excavationof plantingbeds, dirt: ($ 1 per cubicyard "D) Granite Benches: (8 ) per bench installed The specificationsfor ProjectNo. 6104 further provide that:"DEFINITIONOF 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 Contract Documents to that actually installed in accordancewith the original intention. 2) It is further understood and agreed that extra work orderedby the owner and coveredby the unit prices shallbe the total amount per unit to be added to the contractprice for said extrawork.

-57-Ron. H. R. Nieman, Jr., Pages3 (C- 14 )

3) It is further understoodand agreed that work ordered abandonedby thenCwner, after the contract is executed,and coveredby the unit prices shallbe amount per unit, to be deducted from the Contractprice for such deletion of work." On November 5, 1962,,thebids on ProjectNo. 6104 were opened and the contractawarded to F~loyd R. Palmer Landscape Company on the basis of a Base Proposal of $16,161.11. The other Base Proposals ,bidb other bidderswere in amounts of $23,049.35, $17,445.19 and 419,769.00. The Unit Prices set forth in the bid proposalby the Floyd R. Palmer Landscape Company were $.65per square,foot~for'sidewalks,$3.00 per cubic yard for top soil fill $5.00 per c,ubic yard for hand excavation of planting beds, and $450.00,pergranitebench installed.

On the 19th day of November, 1962, a contractwas executedby the State Building Commissionand the Floyd R. Palmer Landscape Companywhich provides in part that:

I,

. . .theContractorhereby agrees with the Owner to commence and complete the construction of certain publicworks describedas Landscape and Area DevelopmentAbout 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, togetherwith the Contractor'sproposal for deduction changes or deletions,hereinafter called the project, for the sum of SIXTEEN THOUSAND ONE HUNDRED SIXTY-ONEAND ll/lOODOLLARS ($16,161.11)

. . .The following unit prices shallbe used in computingadditions and deductions to be made in the Contract, if required,where depths and/or quantitiesmay vary from the plans: 1. Sidewalks,pebble finish concrete- $.65 per square foot
2. Top soil fill- per cubicyard 3.00 3. Hand excavation of plantingbeds dirt per cubicyard 5.00 4. Granite Benches per bench installecl " 450.00" (Emphasisadded) ,~. .

Mr. H. R. Nieman,page 4 (C- 14 )

the State The Floyd R. Palmer Landscape Companyhas now informed

Building Commission that they will lose money on the completionof ProjectNo. 6104 for the reason that they interpreted 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 connectionwith the Unit Price items.

A careful study of the specificationsfor ProjectNo. 6104 discloses that the definition of Unit Prices sets forth that: .theUnit Price amounts shown on the proposil'are the total amounts per unit to be added or deducted from the contractprice in case there is a discrepancy or variation in the quantitiesas originaliy intendedby Contract Documents to that actually Installed in accordance 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 shallbe and deductions to

tion sion Consequently,we are of the opinion that the consideraset forth in the contractbetween the State Building Commis- @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 obligationunder ProjectNo, 610z. $16,161.11may only be varied, THIS contractprice of insofar as the Unit Price items are concerned, to the extent that If the State Building Commlssion should desire to enlarge or reduce the amount or quantity of work to be done on those items coveredby the Unit Price that such Unit Priceswould be used in adjusting, either up or down, the contractprice.

SUMMARY

The contractprice of $16,161.11,as set forth in the contractbetween the State Building Commission

-59-Hon. H. R. Nieman, page 5 (C- 14 1

and the Floyd R. PalmerLandscape Companypertaining to ProjectNo. 6104, is the total consideration to be paid Floyd R. PalmerConstructionCompany for completion of its contract obligations,and such contract 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 coveredby the Unit Price that suchUnit Priceswould 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..