        THEATTORNEYGENERAL
                     OF      TEXAS
                    AUSTIN    m.TExas


                   February 12, 1963


Hon. H. R. Nieman, Jr.               Opinion No. 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 con-
cerning construction to be given certain.provislons contained
in a contract entered into between the State Building Commission
and the Floyd R. Palmer Landscape Company.
          In October, 1962,the State Building Commission ad-
vertised for bids covering certain landscaping around the Sam
Houston State Office Building, and copies of the specifications
and plans were issued as official documents for bid purposes.
The specifications and plans for the landscaping around the Sam
Houston State Office Building were ultimately made a part of the
contract entered into between the State Building Commission and
the Floyd R. Palmer Landscape Company.
          The specifications for the landscaping around the Sam
Houston State Office Building, Project No. 6104, set forth a bid
proposal form to be submitted by each bidder which is set forth
in part as follows:
         "The undersigned, in compliance with your
    Invitation and Instructions to Bidders, for bids
    for 'Landscape and Area Development.about the Sam
    Houston State Office Building,' Austin, Texas, and
    having examined the Plans, Specifications and 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 stated below 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 accordance with the speci-
    fications covering unit prices, the undersigned
    agrees to the following prices, in place:
     "A)    Sidewalks, pebble finish concrete:

                                        ($                1
              per square foot.
     "B)    Top so11 fill:

                                        ($            1
            per cubic yard
     "C)    Hand excavation of planting beds, dirt:

                                        ($            1
              per cubic yard
     "D)    Granite Benches:

                                        (8            )
             per bench installed
    The specifications for Project No. 6104 further provide
    that:
            "DEFINITION OF 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 Con-
            tract Documents to that actually installed in ac-
            cordance with the original intention.

    2)      It is further understood and agreed that extra
            work ordered by the owner and covered by the unit
            prices shall be the total amount per unit to be
            added to the contract price for said extra work.


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



     3)   It is further understood and agreed that work
          ordered abandoned by thenCwner, after the con-
          tract is executed, and covered by the unit prices
          shall be amount per unit, to be deducted from
          the Contract price for such deletion of work."
          On November 5, 1962,,the bids on Project No. 6104
were opened and the contract awarded to F~loydR. Palmer Land-
scape Company on the basis of a Base Proposal of $16,161.11.
The other Base Proposals ,bidb other bidders were in amounts
of $23,049.35, $17,445.19 and 4 19,769.00. The Unit Prices set
forth in the bid proposal by the Floyd R. Palmer Landscape Com-
pany were $.65 per square,foot ~for'sidewalks,$3.00 per cubic
yard for top soil fill $5.00 per c,ubicyard for hand excavation
of planting beds, and $450.00,per granite bench installed.
          On the 19th day of November, 1962, a contract was exe-
cuted by the State Building Commission and the Floyd R. Palmer
Landscape Company which provides in part that:
          I,
           . . .the Contractor hereby agrees with the
     Owner to commence and complete the construction
     of certain public works described as Landscape
     and Area Development About 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, together with the Contractor's proposal
     for deduction changes or deletions, hereinafter
     called the project, for the sum of SIXTEEN THOUSAND
     ONE HUNDRED SIXTY-ONE AND ll/lOO DOLLARS ($16,161.11)
     . . .The following unit prices shall be used in
     computing additions and deductions to be made in
     the Contract, if required, where depths and/or
     quantities may vary from the plans:
          1.   Sidewalks, pebble finish concrete- $.65
               per square foot
          2.   Top soil fill- per cubic yard      3.00

          3.   Hand excavation of planting beds
               dirt per cubic yard                5.00
          4.   Granite Benches per bench in-
               stallecl "                      450.00"
               (Emphasis added)    ,~
                                                             .     .




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


          The Floyd R. Palmer Landscape Company has now informed
the State Building Commission that they will lose money on the
completion of Project No. 6104 for the reason that they inter-
preted 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 connec-
tion with the Unit Price items.
          A careful study of the specifications for Project No.
6104 discloses that the definition of Unit Prices sets forth
that:
               .the Unit Price amounts shown on the
     proposil'are the total amounts per unit to be
     added or deducted from the contract price in
     case there is a discrepancy or variation in the
     quantities as originaliy intended by Contract
     Documents to that actually Installed in accord-
     ance 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 shall be
                                       and deductions to



          Consequently, we are of the opinion that the considera-
tion set forth in the contract between the State Building Commis-
sion @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
obligation under Project No, 610z. THIS contract price of
$16,161.11 may only be varied, insofar as the Unit Price items
are concerned, to the extent that If the State Building Commls-
sion should desire to enlarge or reduce the amount or quantity
of work to be done on those items covered by the Unit Price that
such Unit Prices would be used in adjusting, either up or down,
the contract price.

                          SUMMARY
          The contract price of $16,161.11, as set forth
     in the contract between the State Building Commission


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


     and the Floyd R. Palmer Landscape Company pertaining
     to Project No. 6104, is the total consideration to be
     paid Floyd R. Palmer Construction Company for com-
     pletion of its contract obligations, and such con-
     tract 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 covered by the Unit
     Price that such Unit Prices would 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




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