            %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 ap-
                               proval by the Board of
                               Control on monthly con-
                               struction estlmates and
                               change orders on hospital
Dear Sir:                      construction projects.

          You have requested an opinion on the fol-
lowing questions:

          "Does the law require the approval of
     the Board of Control on our monthly construc-
     tion estimates?

          "Does the law require the approval of
     the Board of Control on our change orders
     in plans and specifications after a contract
     has been entered Into?

          "If o’ur Board follows the customary
     practice of the Board of Control and adver-
     tises for bids In newspapers 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 the Board of Control have the
     legal authority to disapprove our action,
     or:

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



           Prior to the creation of the Board for Texas
State Hospitals and Special Schools, the Board of Con-
trol had authority to exec~ute and supervise construc-
tion contracts for the various institutions now under
the management and control of the Hospital Board. Arts.
679-687, V.C.S.   On September 1, 1949, these powers were
transferred to the Board for Texas State Hospitals and
Special Schools. H.B. 1, Acts 51st Leg., R.S. 1949,
             588 (Art. 3174b, V.C.S.); Att'y Gen. Op. V-
;;; ?$49p:    In 1950 the Legislature amended the 1949
act to make such construction subject to the review and
approval of the Board 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 of Article 7047c-1, V.C.S., provides


          "All the funds credited to the State Hos-
     pitals and Special Schools Building Fund under
     this Act are hereby appropriated to the Board
     for Texas State Hospitals and Special Schools
     for the purpose of constructing, repairing and
     equipping such buildings as in the opinion of
     the Board 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 supervi-
     sions of-said-buildings and all contracts
     made for and the final acceptance in connec-
     tion with such construction other than the
     plans and specifications, shall be subject
     to the review and approval of the Board of
     Control."  (Emphasis added.)

          It is noted that the above quoted provision
makes not only the contract but also the final accept-
ance of the construction work itself subject,,to "the
review and approval of the Board of Control.   However,
plans and specifications are specifically excepted
from its provision. Att'y Gen. Op. V-1172 (1951).
          In view of the foregoing, we answer   your
specific questions as follows:

          1. Since the final acceptance of the con-
struction work is subject to the approval of the Board
Hon. Larry 0. Cox, page 3     (v-1462)


of Control, it has the power to Inspect the work as it
progresses.  Generally, construction contracts call for
monthly payments to the contractor based on the amount
of work completed, Therefore, the contractor's monthly
construction estimat'e 1~ssubj,ect $0 the approval of
the Board of Control.

           2. Changes in plans and specifications are not
s'ubject to the approval of the Board of Control. Of cZi?se
it is understood that material changes in the plans and
specifications after a contract has been entered Into are
not authorized; only minor changes, contemplated by the
advertisement, bid, and contract, may be made.

          3.  Although the contract is subject to the
approval of the Board of Control, a legal basis must
exist before it may disapprove the action of the Hos-
pital Board in awarding the contract. For example, If
the Board of Control has knowledge of facts which show
that the person who has been awarded a contract is not
a responsible bidder, then it has the power to refuse
to approve the contract.

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

                          SUMMARY

             All contracts for the construction of
        buildings for the various institutions under
        the management and control of the Board for
        Texas State Hospitals and Special Schools,
        and the construction work itself, are subject
        to review 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                  BY         &&
Reviewing Assistant            fi John Reeves
                                    Assistant
Charles D. Mathews
First Assistant

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