By Brimer H.C.R. No. 64
76R1817 MDR-F
HOUSE CONCURRENT RESOLUTION
1-1 WHEREAS, DalMac Construction Company, Inc., alleges that:
1-2 (1) on February 15, 1993, DalMac Construction Company
1-3 and Texas A&M University entered into a contract for the
1-4 construction of a recreational sports building;
1-5 (2) almost immediately after work began, DalMac
1-6 Construction Company discovered that the university's plans and
1-7 specifications did not adequately describe the work, the plans
1-8 frequently conflicted with the specifications, and it was
1-9 impossible to construct the building from the plans and
1-10 specifications;
1-11 (3) DalMac Construction Company incurred several
1-12 hundreds of thousands of dollars in additional expense because the
1-13 university insisted on performance that exceeded the plans and
1-14 specifications as initially requested;
1-15 (4) in compliance with the procedures specified in the
1-16 contract, DalMac Construction Company regularly notified the
1-17 university and requested clarification of inadequacies, conflicts,
1-18 and other problems, and in some instances the university did not
1-19 respond for more than a year;
1-20 (5) in compliance with the procedures specified in the
1-21 contract, and as a direct result of design inadequacies and
1-22 conflicts, DalMac Construction Company was forced to submit change
1-23 proposals for time and money;
1-24 (6) after numerous change proposals were denied or
2-1 left unanswered, DalMac Construction Company used the dispute
2-2 resolution procedure specified by the contract;
2-3 (7) despite the obvious problems with the university's
2-4 architectural plans and specifications, and despite the
2-5 university's insistence on performance that exceeded the initial
2-6 contractual requirements, DalMac Construction Company fully
2-7 satisfied its contractual obligations, both as initially required
2-8 and as subsequently modified at the insistence of the university;
2-9 (8) the university refused to extend the construction
2-10 date for more than 15 days during construction;
2-11 (9) after construction was completed the university
2-12 inexplicably granted two additional extensions of 43 and 17 days,
2-13 setting December 20, 1994, as the adjusted date of completion, but
2-14 these extensions were of little consequence since the project was
2-15 290 days beyond schedule due to problems with the plans;
2-16 (10) DalMac Construction Company completed
2-17 construction on or about November 17, 1995;
2-18 (11) on or about October 16, 1995, DalMac Construction
2-19 Company submitted to the vice chancellor of The Texas A&M
2-20 University System a "Request for Equitable Adjustment," supported
2-21 by project documents, which included requests for time and money,
2-22 with the total claim at that time amounting to $2,412,575.66;
2-23 (12) the vice chancellor summarily responded to the
2-24 "Request for Equitable Adjustment" by indicating that the
2-25 university was not responsible for the losses of DalMac
2-26 Construction Company and its subcontractors regardless of cost;
2-27 (13) there was no indication that the university
3-1 reviewed the "Request for Equitable Adjustment," and both the
3-2 rapidity and the content of the vice chancellor's response suggest
3-3 that the university did not, in fact, review the "Request for
3-4 Equitable Adjustment";
3-5 (14) despite DalMac Construction Company's repeated
3-6 proposal for a joint review of the plans, as a start toward final
3-7 settlement, and despite the vice chancellor's remark that the
3-8 architectural plans were the worst he had ever seen at the
3-9 university, the university never agreed to the joint review;
3-10 (15) on July 10, 1996, and in compliance with the
3-11 dispute resolution procedure provided for by the contract, DalMac
3-12 Construction Company gave notice to the chancellor of The Texas A&M
3-13 University System that the company was appealing the vice
3-14 chancellor's rejection of the claim;
3-15 (16) on September 25, 1996, the chancellor set the
3-16 dispute for arbitration in College Station, Texas, for two or three
3-17 days, over DalMac Construction Company's objection that two or
3-18 three days was not ample time to present all complicated
3-19 engineering information necessary for an informed arbitral
3-20 decision;
3-21 (17) DalMac Construction Company and the university
3-22 submitted their dispute to an arbitrator, whose March 25, 1997,
3-23 decision addressed only three of the numerous issues in dispute, as
3-24 the university was unwilling to arbitrate the remaining issues;
3-25 (18) on April 14, 1997, DalMac Construction Company
3-26 wrote to the university proposing a settlement, to which the
3-27 chancellor responded with an offer of $19,000 on a $2.4 million
4-1 claim;
4-2 (19) on April 30, 1997, pursuant to the specified
4-3 dispute resolution procedure, DalMac Construction Company appealed
4-4 to the Board of Regents of The Texas A&M University System and
4-5 asked for a full and fair hearing;
4-6 (20) at the hearing before the board of regents,
4-7 DalMac Construction Company was given a mere 45 minutes to discuss
4-8 a claim now exceeding $3 million, and the board of regents upheld
4-9 the chancellor's findings;
4-10 (21) on July 30, 1997, the board of regents offered
4-11 DalMac Construction Company $204,461, an increase over the initial
4-12 $19,000 offer, due only to the university's incorrect deduction of
4-13 liquidated damages;
4-14 (22) DalMac Construction Company sought confirmation
4-15 that the offer of $204,461 was the board of regents' final
4-16 response;
4-17 (23) the university has failed to pay DalMac
4-18 Construction Company for construction costs and expenses incurred
4-19 as a result of the university's mistakes, and the university has
4-20 breached the contract it entered into with DalMac Construction
4-21 Company; and
4-22 (24) DalMac Construction Company is entitled to actual
4-23 and monetary damages, including court costs and attorney's fees;
4-24 now, therefore, be it
4-25 RESOLVED by the Legislature of the State of Texas, That
4-26 DalMac Construction Company, Inc., is granted permission to sue the
4-27 State of Texas and Texas A&M University subject to Chapter 107,
5-1 Civil Practice and Remedies Code; and, be it further
5-2 RESOLVED, That the president of Texas A&M University be
5-3 served process as provided by Section 107.002(a)(3), Civil Practice
5-4 and Remedies Code.