            TREA~~~ORNEY              GENERAL
                          OFTEXAS




                           gag 16, 1957.

Honorable Wm. J. Burke,         Opinion No. WW-134
Executive Director,
State Boardsof Control,         Re: Does the Board of Con-
Austin, Texas.                      trol have authority to
                                    waive performance under
                                    a construction contract
                                    awarded on bids when the
                                    contractor later claims
                                    that he did not include
                                    certain items in his bid
                                    which were shown on the
                                    drawings made a part of
Dear Mr. Burke:                     the bid invitation?
       You have requested our opinion on the following
question:
          "Does the Board of Control have authority
       to waive performance under a construction
       contract awarded on bids when the contractor
       later claims that he did not include certain
       items in his bid which were shown on the
       drawings made a part of the bid invitation?"
       In reply to our request for additional information,
you have stated:
         "Bids were originally received for this pro-
      ject on June 9, 1955 and were rejected due to
      the fact that they exceeded the appropriation.
      The window schedule on Sheet 506-3 of drawings
      in Group 5, Division A calls for Venetian blinds
      in certain windows of Building 506. Venetian
      blinds were not indicated in any other part of
      the plans and specifications.   However, in the
      second paragraph under Art. 9 of the General
      Conditions of the Specifications is the following
      statement, 'Unless otherwise specified, all
      materials shall be new and both workmanship and
      materials shall be of good quality. The Contract-
      or shall, if required, furnish satisfactory evi-
      dence as to the kind and quality of materials.'
Honorable Wm. J. Burke,     page   2       ww-134


          "Bids were received on the revised plans
       and specifications on July 14, 1955, and the
       contract was awarded to 9. 0. & C. D. Yar-
       brough Construction Co.   The plans and speci-
       fications relating to the Venetian blinds were
       not changed in any way in the revised set.
          "If the plans and specifications concerning
       Venetian blinds were changed, they were changed
       by the Architects prior to the original advertise-
       ment for bids and issuance of the plans and speci-
       fications to bidders."
       Under agreement dated August 16, 1955, 9. 0. and C.D.
Yarbrough Construction Co. has agreed to provide all the
materials and perform all of the work as shown by the draw-
ings and described in the specifications prepared by Fehr
and Granger, and Niggli and Gustafson, associated Architects,
and under the agreement the drawings and specifications pre-
pared by such Architects are made a part of the contract for
all purposes.
       In the drawings of Group V, Division A, Sheet 3, the
window schedule contained therein requires that Venetian
blinds shall be affixed to the windows of Building No. 506.
In the written specifications there are no specific details
written concerning these Venetian blinds.   However, in the
second paragraph of Article 9, of the General Conditions of
the specifications, the following statement is found:
            "Unless otherwise speciffed, all materials
       shall be of good quality.   The Contractor shall,
       if required, furnish satisfactory zvldence as to
       the kind and quality of materials.
       Since the Contractor has agreed to install Venetian
blinds to the windows of Building 506 by agreeing to perform
all of the work and furnish all materials called for in the
drawings and since this was a condition upon which all bld-
derswere required to bid, it Is our opinion that the Board of
Control does not have the authority to waive the performance
of this condition of the contract, and that the Contractor
is required to install Venetian blinds in accordance with the
provisions of the General Conditions above quoted.
       The above answer to your question is not to be con-
strued as preventing the Board of Control from entering a
change order for removing the Venetian blfnds from the con-
tract, provided appropriate credits are given by the Con-
Honorable Wm. J. Burke,    wk3e 3          WV-134


tractor, pursuant to the specifications.
                           SUMMARY

                The Board of Control does not have
                authority to waive performance under
                a construction contract awarded on
                bids, when the contractor later claims
                that he did not include certain items
                in his bid, which were s~hownon the
                drawings made a part of the bid
                invitations.
                               Yours very truly,
                               WILL WIISON
                               Attorney General




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APPROVED:
OPINION COMMITTEE
H. Grady Chandler,
         Chairman
L. P. Lollar
J. L. Smith
Grundg Williams
REVIEWED FOR THE ATTORNEY GENERAL
By:   Geo. P. Blackburn
