1-1     By:  Carona                                           S.C.R. No. 24
 1-2           (In the Senate - Filed February 3, 1999; February 9, 1999,
 1-3     read first time and referred to Committee on Jurisprudence;
 1-4     March 3, 1999, reported favorably by the following vote:  Yeas 4,
 1-5     Nays 0; March 3, 1999, sent to printer.)
 1-6                        SENATE CONCURRENT RESOLUTION
 1-7           WHEREAS, DalMac Construction Company, Inc., alleges that:
 1-8                 (1)  on February 15, 1993, DalMac Construction Company
 1-9     and Texas A&M University entered into a contract for  the
1-10     construction of a recreational sports building;
1-11                 (2)  almost immediately after work began, DalMac
1-12     Construction Company discovered that the university's plans and
1-13     specifications did not adequately describe the work, the plans
1-14     frequently conflicted with the specifications, and it was
1-15     impossible to construct the building from the plans and
1-16     specifications;
1-17                 (3)  DalMac Construction Company incurred several
1-18     hundreds of thousands of dollars in additional expense because the
1-19     university insisted on performance that exceeded the plans and
1-20     specifications as initially requested;
1-21                 (4)  in compliance with the procedures specified in the
1-22     contract, DalMac Construction Company regularly notified the
1-23     university and requested clarification of inadequacies, conflicts,
1-24     and other problems, and in some instances the university did not
1-25     respond for more than a year;
1-26                 (5)  in compliance with the procedures specified in the
1-27     contract, and as a direct result of design inadequacies and
1-28     conflicts, DalMac Construction Company was forced to submit change
1-29     proposals for time and money;
1-30                 (6)  after numerous change proposals were denied or
1-31     left unanswered, DalMac Construction Company used the dispute
1-32     resolution procedure specified by the contract;
1-33                 (7)  despite the obvious problems with the university's
1-34     architectural plans and specifications, and despite the
1-35     university's insistence on performance that exceeded the initial
1-36     contractual requirements, DalMac Construction Company fully
1-37     satisfied its contractual obligations, both as initially required
1-38     and as subsequently modified at the insistence of the university;
1-39                 (8)  the university refused to extend the construction
1-40     date for more than 15 days during construction;
1-41                 (9)  after construction was completed the university
1-42     inexplicably granted two additional extensions of 43 and 17 days,
1-43     setting December 20, 1994, as the adjusted date of completion, but
1-44     these extensions were of little consequence since the project was
1-45     290 days beyond schedule due to problems with the plans;
1-46                 (10)  DalMac Construction Company completed
1-47     construction on or about November 17, 1995;
1-48                 (11)  on or about October 16, 1995, DalMac Construction
1-49     Company submitted to the vice chancellor of The Texas A&M
1-50     University System a "Request for Equitable Adjustment," supported
1-51     by project documents, which included requests for time and money,
1-52     with the total claim at that time amounting to $2,412,575.66;
1-53                 (12)  the vice chancellor summarily responded to the
1-54     "Request for Equitable Adjustment" by indicating that the
1-55     university was not responsible for the losses of DalMac
1-56     Construction Company and its subcontractors regardless of cost;
1-57                 (13)  there was no indication that the university
1-58     reviewed the "Request for Equitable Adjustment," and both the
1-59     rapidity and the content of the vice chancellor's response suggest
1-60     that the university did not, in fact, review the "Request for
1-61     Equitable Adjustment";
1-62                 (14)  despite DalMac Construction Company's repeated
1-63     proposal for a joint review of the plans, as a start toward final
1-64     settlement, and despite the vice chancellor's remark that the
 2-1     architectural plans were the worst he had ever seen at the
 2-2     university, the university never agreed to the joint review;
 2-3                 (15)  on July 10, 1996, and in compliance with the
 2-4     dispute resolution procedure provided for by the contract, DalMac
 2-5     Construction Company gave notice to the chancellor of The Texas A&M
 2-6     University System that the company was appealing the vice
 2-7     chancellor's rejection of the claim;
 2-8                 (16)  on September 25, 1996, the chancellor set the
 2-9     dispute for arbitration in College Station, Texas, for two or three
2-10     days, over DalMac Construction Company's objection that two or
2-11     three days was not ample time to present all complicated
2-12     engineering information necessary for an informed arbitral
2-13     decision;
2-14                 (17)  DalMac Construction Company and the university
2-15     submitted their dispute to an arbitrator, whose March 25, 1997,
2-16     decision addressed only three of the numerous issues in dispute, as
2-17     the university was unwilling to arbitrate the remaining issues;
2-18                 (18)  on April 14, 1997, DalMac Construction Company
2-19     wrote to the university proposing a settlement, to which the
2-20     chancellor responded with an offer of $19,000 on a $2.4 million
2-21     claim;
2-22                 (19)  on April 30, 1997, pursuant to the specified
2-23     dispute resolution procedure, DalMac Construction Company appealed
2-24     to the Board of Regents of The Texas A&M University System and
2-25     asked for a full and fair hearing;
2-26                 (20)  at the hearing before the board of regents,
2-27     DalMac Construction Company was given a mere 45 minutes to discuss
2-28     a claim now exceeding $3 million, and the board of regents upheld
2-29     the chancellor's findings;
2-30                 (21)  on July 30, 1997, the board of regents offered
2-31     DalMac Construction Company $204,461, an increase over the initial
2-32     $19,000 offer, due only to the university's incorrect deduction of
2-33     liquidated damages;
2-34                 (22)  DalMac Construction Company sought confirmation
2-35     that the offer of $204,461 was the board of regents' final
2-36     response;
2-37                 (23)  because of these circumstances and because the
2-38     university accepted DalMac Construction Company's complete
2-39     performance, the university should be estopped from relying on, and
2-40     should be deemed to have waived, whatever sovereign immunity from
2-41     suit it enjoys, in accordance with both the Texas Supreme Court's
2-42     suggestion in Federal Sign v. Texas Southern University, 951 S.W.2d
2-43     401, 408 n.1 (Tex. 1997), and the Fourth Court of Appeals' recent
2-44     holding in Alamo Community College District v. Obayashi
2-45     Corporation, 1998 WL 553196 (Tex. App.--San Antonio (4th Dist.)
2-46     Aug. 31, 1998, pet. filed);
2-47                 (24)  the university has failed to pay DalMac
2-48     Construction Company for construction costs and expenses incurred
2-49     as a result of the university's mistakes, and the university has
2-50     breached the contract it entered into with DalMac Construction
2-51     Company; and
2-52                 (25)  DalMac Construction Company is entitled to actual
2-53     and monetary damages, including court costs and attorney's fees;
2-54     now, therefore, be it
2-55           RESOLVED by the Legislature of the State of Texas, That
2-56     DalMac Construction Company, Inc., is granted permission to sue the
2-57     State of Texas and Texas A&M University subject to Chapter 107,
2-58     Civil Practice and Remedies Code; and, be it further
2-59           RESOLVED, That the president of Texas A&M University be
2-60     served process as provided by Subdivision (3), Subsection (a),
2-61     Section 107.002, Civil Practice and Remedies Code.
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