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. 2-62 * * * * *