Liquidating agreement


ICC entered into two written subcontracts with Mine Services, Inc.

(“MSI”) for the levee construction and the excavation of the storm water detention lake.

Christina Stone, Gaughan & Stone, Houston, for Amicus Curiae ABC of Texas, Inc. Pursuant to article V, section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, we answer the following questions:1. These are difficult issues of first impression for this Court.

Richard Gary Thomas, Dallas, Thomas Feldman & Wilshusen, LLP, for Amicus Curiae American Subcontractors Assoc. Nelson, Austin, for Amicus Curiae Associated General Contractors. Basham, Allensworth and Porter, LLP, Austin, Retta A. Does Texas recognize pass-through claims, i.e., may a contractor assert a claim against an owner on a subcontractor's behalf when there is no privity of contract between the subcontractor and the owner? Privity of contract, as a necessary predicate to suit on a contract, has a long and settled history in this State.

In October 1994, MSI began by mobilizing, surveying, and dewatering the Interior Borrow Lake (“IBL”). The federal pass-through procedure has become the standard method by which such claims are resolved.

The IBL was one of the “borrow” sites the City designated as a source of fill material.

Shortly after work began, MSI discovered that the materials in the IBL differed from what it expected. Blair, the Supreme Court articulated the policy rationale for allowing pass-through claims, stating that:[I]t does not follow that [the contractor] is barred from suing for this amount.

John Kirby, Office of City Atty., Dallas, for appellant. If the first question is answered in the negative, then the remaining question need not be reached. The parties here contest the extent to which the privity requirement may be maintained in a jurisdiction that recognizes pass-through claims. This case comes before us on certified questions from the United States Court of Appeals for the Fifth Circuit.


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