Attlin Construction, Inc. v. Muncie Community Schools

YOUNG, Presiding Judge,

dissenting.

I dissent.

The majority opinion ignores the threshold question presented in this appeal. That is whether the school corporation can legally enter into a contract with a construction manager. I would hold such a contract is invalid because of the absence of statutory authority in the school corporation. State v. Meiser, (1929) 201 Ind. 337, 168 N.E. 185. School corporations are creatures of the General Assembly and only possess such power as is expressly given them or such power as may be implied from the power given. State v. School City of Anderson, (1957) 236 Ind. 649, 142 N.E.2d 914.

The persons which school corporations may contract with for services are spelled out in the following statute:

“In carrying out the school purposes of each school corporation, its governing body acting on its behalf shall have the following specific powers:
(7) To employ, contract for and discharge superintendents, supervisors, prin*292cipals, teachers, librarians, business managers, superintendents of buildings and grounds, janitors, engineers, architects, physicians, dentists, nurses, accountants, teacher aides performing noninstructional duties, educational and other professional consultants, data processing and computer service for school purposes, including but not limited to the making of schedules, the keeping and analyzing of grades and other student data, the keeping and preparing of warrants, pay-roll, and similar data where approved by the state board of accounts as provided below, and such other personnel or services, all as the governing body considers necessary for school purposes; to fix and pay the salaries and compensation of such persons and such services; to classify such persons or services and to adopt schedules of salaries or compensation; to determine the number of such persons or the amount of services thus employed or contracted for; and to determine the nature and extent of their duties.”

I.C. 20-5-2-2(7).

“Construction managers” are not named and neither may such be implied. Thus the school corporation may not employ one or contract with one. Had the General Assembly wished to grant school corporations the power to contract for such services it could easily have done so. The omission is indicative of its desire not to do so.

The General Assembly’s intent regarding authorization to hire a project consultant/construction manager is exhibited by attempts to pass just such legislation. In 1979 Senate Bill 245 was introduced and would have amended Ind.Code 5-16-1-1 to allow hiring of project consultants for public buildings thereby including a project consultant as one who could be hired under Ind.Code 20-5-2-2(7). S.B. 245, 101st General Assembly 1st Sess. (1979). The amendment would permit the hiring of such a consultant and such hiring may be without submission of bids. The bill defined a “project consultant” as one employed to advise on and consider the budget and cost prior to commencement of construction as well as manage construction. The bill would not prevent the architect or engineer acting on behalf of the local entity to ensure compliance with the contract. The General Assembly, in proposing such an amendment, must not have believed the previously enacted statutes included such authorization. The failure of this bill as well as others, see e. g. H.B. 1217, 101st General Assembly 2d Sess. (1980) and H.B. 1246, 100th General Assembly 2d Sess. (1978), to become law also is some indication that the General Assembly does not yet intend to permit such hiring in the public works projects of this state. Even aside from this negative indication, the General Assembly’s recent and continuing consideration of this issue is sufficient reason to restrain from judicially enlarging the power given school corporations.

Analysis of I.C. 5-16-1-1, the public bidding statute, lends support to this dissent. By approving the use of a “construction manager” the majority obviates the statutory scheme for the construction of buildings by school corporations.

School corporations are authorized to construct school buildings by awarding a contract to the person with the lowest and best bid. The school corporation and the public are thereby assured that one person will be bound to construct the building for a sum certain, performance being guaranteed by a bond in the amount of the contract. I.C. 20-2-9-1 and I.C. 5-16-1-1. It is contemplated that the building will be completed by one person who contracts to do so rather than a number of separate tradesmen performing separate tasks such as plumbing, masonry, electrical work, etc. It is a “turnkey” project. The method approved here will not ensure completion of any project. Neither will it ensure completion at a specified contract price.1 School corporations are not authorized to act as their own gen*293eral contractor in such projects but must contract with others to do so.

. The majority states that money is saved the school corporation by use of the construction manager. However, under the terms of the contract, the fee to be paid the construction manager is not fixed, but rather, is a percentage of each construction bid awarded.