%BE ATTOHNEY GENERAL
OF T-EXAS

Hon. Larry 0. Cox Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas Opinion No.v-1462

Re: Necessity for advance approval by theBoard of Control onmonthly construction estlmates and change orders onhospital Dear Sir: construction projects.

You have requested an opinion on the following questions:

"Does the law require the approval of theBoard ofControl on ourmonthly construction estimates?

"Does the law require the approval of theBoard ofControl on our change orders inplans and specifications after a contract has been entered Into?

"If o’ur Board follows the customary practice of theBoard ofControl and advertises for bids Innewspapers In the local vicinity of the construction project as well as advertising In construction trade journals and publications, and bids are publicly opened at a designated time and place, and the low bid Is accepted by our Board, does theBoard ofControl have the legal authority to disapprove our action, or:

"Is theBoard ofControl's right of review and approval only that of assuring that legal and businesslike methods are followed Inadvertising and accepting bids for construction?"Hon. Larry 0. Cox, page 2 (v-1462)

Prior to the creation of theBoard for Texas State Hospitals and Special Schools, theBoard of Control had authority to exec~uteand supervise construction contracts for the various institutions now under themanagement and control of theHospital Board. Arts. 679-687, V.C.S. On September 1, 1949, these powers were transferred to theBoard for Texas State Hospitals and Special Schools. H.B. 1,Acts 51st Leg., R.S. 1949,

;;; ?$49p: 588 (Art. 3174b, V.C.S.); Att'y Gen. Op.VIn 1950 the Legislature amended the 1949 act tomake such construction subject to the review and approval of theBoard of Control, where the construction costs are paid out of funds credited to the State Hospitals and Special Schools Building Fund. :H~.B.2, Acts 5lst Leg., 1stC.S. 1950, ch. 1,p. 1 (Sec.3, Art. 7047c-1,

Section 3 ofArticle 7047c-1, V.C.S., provides

"All the funds credited to the State Hospitals and Special Schools Building Fund under this Act arehereby appropriated to theBoard forTexas State Hospitals and Special Schools for the purpose of constructing, repairing and equipping such buildings as in the opinion of theBoard are necessary to the proper care of those committed or to be committed to such hospitals and special schools according to law. Provided however, the fees paid to an architect shall not exceed six per cent (6%) for the plans. specifications and supervisions of-said-buildings and all contracts made for and the final acceptance in connectionwith such construction other than the plans and specifications, shall be subject to the review and approval of the Board of Control." (Emphasis added.)

It isnoted that the above quoted provision makes not only the contract but also the final acceptance of the construction work itself subject,,to"the review and approval of theBoard ofControl. However, plans and specifications are specifically excepted from its provision. Att'y Gen. Op.V-1172 (1951).

Inview of the foregoing, we answer your specific questions as follows:

1. Since the final acceptance of the construction work is subject to the approval of theBoardHon. Larry 0.Cox, page 3 (v-1462)

ofControl, ithas the power to Inspect thework as it progresses. Generally, construction contracts call for monthly payments to the contractor based on the amount ofwork completed, Therefore, the contractor's monthly construction estimat'e1~ssubj,ect$0 the approval of the Board ofControl.

2. Changes inplans and specifications are not s'ubjectto the approval of theBoard ofControl. Of cZi?se it is understood thatmaterial changes in the plans and specifications after a contract has been entered Into are not authorized; onlyminor changes, contemplated by the advertisement, bid, and contract, may bemade.

3. Although the contract is subject to the approval of theBoard ofControl, a legal basis must exist before itmay disapprove the action of the Hospital Board in awarding the contract. For example, If theBoard of Control has knowledge of facts which show that the person who has been awarded a contract isnot a responsible bidder, then ithas the power torefuse to approve the contract.

4. Both the contract and construction work are subject to the review and approval of theBoard of Control.

SUMMARY

All contracts for the construction of buildings for the various institutions under the management and control of theBoard for Texas State Hospitals and Special Schools, and the construction work itself, are subject toreview and approval of the State Board of Control. Art. 7047c-1, V.C.S. Plans and specifications for such construction are not subject to review and approval of the State Board of Control. Att'y Gen. Op.V-1172 (1951).

Yours very truly,

APPROVED: PRICE DANIEL Attorney General J.C. Davis, Jr. County Affairs Division

Mary K. Wall Reviewing Assistant
Charles D. Mathews First Assistant BY fi && John Reeves Assistant

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