December 22, 1949

Hon. RaymondE. Wagee opinion ao. v-981. county Attorney GalvestonCounty Galveston,Texas Re:

Dear air: The authorityof the CommlssIoIlers'

court to revlse'bullding speclfIoatIons

and add $1999.57 to.the contractnrlce vltbout raadv&tising competitivebids. -. _. Your request for an oplnloa Is In part as lovs:
"TheCommlssIoners Court entered into a contractvlth R. P. F'rank vbloh vas avarded after complyingvith the statute on a bid of $5813.16,and thereafterthe City Bulldlng Inspectorrefused to issue a permit for the oonetructlonof the buildingwhich vas to be a public rest room at East Beach Playground outsidethe Seavall of the City of Galveston,Texas. on ootober 14tl+ 1949, the Commissioners

Court, because addltlonal ohangeshad~to be made ~$0comply with the buildingoode 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 dlfference of $1999.57aud excluded a tile floorvhlch vas In the originalplans. The CommIssIoners

Court did not advertise.for nev bids because they felt that under Article 2368a, Seotlon 2 of the Revised Civil Statutes of Texas the amount vas under $2000.00and that additionalbids vere not necessary. for

foln

. . . "'Does the Court have authority to let Mr. prank completethe contraotvlth tile changesmade In the resolutionvLthout

LHon. Raymond E. Magee, page 2 

### (v-981)

'1 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 specifications 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 sdvertisement for bids when changes are made in the speclfloations 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 prepared 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 ,thenotice or specifications In some particular which was substantially favorable to the bldder. Among particular departures from the advertised plans .and specIfIcatIons that have been regarded as material may be mentioned an extension 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 speclfioatlons, 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 successful bidder embodying changes In those plans’

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

and speclfloations.

. . ."

See also Iowa-R~braakza LI city of Cournl the annotatzon,

Yoa state that the ohangesneoessaryto comply vlth the buildingoode oaused the additionof $1999.- 57,to a contractoriginallyaaarded on a 

### $5814.16 bid as a generalrnle, vhether a ohange Is "substantial" Is s questionof fact. It is onr opinion,hovever,that changes amountingto more than one-thirdof the original oontraotprloe must be.oonslderedsubstantialand materlal. In that oase the situationvhloh you present to us comes within the rules state&above, and, notwithstanding the additionalamount is less than $2,000, the oounty is requiredto readvertlaefor bids In compliance with the provIsIonsof Article 2368a,Vernon'sCivil Statutes.
_. SUMMARY
When material and substantialchanges, amountingto 

### $1999.57(more than one-thiti of the originaloontraofprloe), are made by the County in the plans and speoFiloatI&s for a publicbuilding after a oontract for the construction of that buildinghas been made In oompllancevIth Article 2368a, V.C.S., the Countymust readvertlsefor bids, notwithstandingthe additionalamount is less than two thousand ($2,000)Dollars.

ATTOW GXRXRAL
JR:EJ:b:mv Yours very truly,

ATTORNEY GENRRAL OF !CRXAS

Assistant

X. Jacobson Assistant