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Construction Work Was 'Incidental' To Sales Contract

Wednesday, August 30, 2017 05:31 am


Denied: Public Works Contract

Unibridge Systems, Inc. v. Mike Patterson, ex rel. Oklahoma Dept. of Transportation, 2017 Okla. Civ. App. Lexis 13 (June 6, 2017)

A party contended that a construction-contract-specific set of rules should apply to its bid protest. Despite the demo, excavation, and installation work involved in the proposed contract, a court disagreed, ruling that the project was more accurately an acquisition of goods and services---not a construction contract.

Unibridge Systems, Inc. (Unibridge) submitted a $262,846 bid on a project to demolish and replace a truck scale in El Reno, Oklahoma for the Oklahoma Department of Transportation (ODOT). It lost the award to Cardinal Scale Manufacturing, which submitted a $299,950 bid. Unibridge protested, and a trial court affirmed ODOT’s decision that Unibridge’s bid was nonresponsive.

The contract sought the acquisition of a new truck scale, as well as the demolition of the old scale pit and construction of a new one. Specifically, the contract required that the new scale contain hydraulic compression and stainless steel load cells. Unibridge did not bid a hydraulic load cell system or stainless steel materials. Nevertheless, it objected to its bid’s elimination from the competition for nonresponsiveness. Unibridge presented two arguments.

‘Solicitation was more like purchase of a water heater’

First, it contended that the solicitation should have been governed by the Oklahoma Public Competitive Bidding Act of 1974 61 O.S.2011, § 101(PCBA) rather than the Oklahoma Central Purchasing Act, 74 O.S.2011, § 85.1(CPA). The former addresses construction contracts and the latter purchase of goods and services. Unibridge emphasized that the project required design and fabrication (of the truck scale), demolition (of the old scale pit), and construction (of a new pit, foundation, and slab). "Thus, it is a public construction contract enhancing the utility and v[...]

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