We represent a Title 60 Public Trust (County is beneficiary).  Trust desires to contract for the purchase and installation of a complete audio/video system for a County facility.  The contractor will be required to provide all relevant audio, video and automation hardware and software for the design.  A question has arisen whether Trust must go out to bid for the equipment and installation (services) for the audio/video system pursuant to the Public Competitive Act (Title 61 O.S. sections 101 et seq. or whether the Trust can request proposals for the design and installation of the hardware and software for the system.

My initial thought is that because the design and installation of the audio/video system will require professional judgment and/or specialized knowledge not subject to uniform specifications, the Trust is not required to go out to bid for the system but can rather request proposals.

Any insight you can provide will be appreciated.

Thanks,
Joe Weaver

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.netmailto:agbass@basslaw.net

[cid:image001.png@01D64EC9.C2A7ACD0]
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

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I would think the design of the system would require professional knowledge and skill, and would therefore be a professional contract.  (While the trust statute does not provide for a "professional services" exception, I believe that the professional services exception exists as a matter of common law.)

I am less sure of the hardware purchases.  If the design calls for video cameras, computers and other hardware that can be provided by any number of providers who have the technical specifications, I don't see how that portion of the project can be considered "professional" in nature.  The same may be true for that portion of the project that requires running the wires to hook everything up.  I would the actual hooking up of the system and making certain everything operates as intended to be a professional service.

A question would be whether, as a practical matter, the project could be reasonably segregated between the professional services and the hardware purchases.  I would rely on the technical experts to make that judgment call.

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Rd. N., Suite B
P.O. Box 546
Piedmont, Oklahoma  73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

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From: Oama oama-bounces@lists.imla.org On Behalf Of Joe Weaver
Sent: Tuesday, June 30, 2020 11:10 AM
To: oama@lists.imla.org
Subject: [Oama] Request for bid - Request for Proposal

We represent a Title 60 Public Trust (County is beneficiary).  Trust desires to contract for the purchase and installation of a complete audio/video system for a County facility.  The contractor will be required to provide all relevant audio, video and automation hardware and software for the design.  A question has arisen whether Trust must go out to bid for the equipment and installation (services) for the audio/video system pursuant to the Public Competitive Act (Title 61 O.S. sections 101 et seq. or whether the Trust can request proposals for the design and installation of the hardware and software for the system.

My initial thought is that because the design and installation of the audio/video system will require professional judgment and/or specialized knowledge not subject to uniform specifications, the Trust is not required to go out to bid for the system but can rather request proposals.

Any insight you can provide will be appreciated.

Thanks,
Joe Weaver

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.netmailto:agbass@basslaw.net

[cid:image001.png@01D64ED1.4D3022E0]
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

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The lease of the equipment may be an option also Construction Management agreemnt.  see below

Oklahoma Statutes Citationized
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST62 Title 62. Public Finance
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST62#Chapter2-ProvisionsApplicabletoSubdivisionsoftheState Chapter 2 - Provisions Applicable to Subdivisions of the State
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST62#RentalofRealorPersonalProperty Rental of Real or Personal Property
[https://www.oscn.net/Images/Applications/search/WDDocument.gif] Section 430.1 - Counties, Cities, Towns, and School Districts Authorized to Rent Equipment
Cite as: O.S. §, __ __

A. The governing board of any county, city or town, or school district is authorized to rent on a monthly basis real or personal property as authorized by the governing board and to pay the rental charges thereon for usage during any fiscal period, or portion thereof, out of appropriations made and approved for such purposes for, or during, such fiscal year. Any such rental contract extending beyond June 30 of the fiscal year shall contain provisions for mutual ratification of renewal under the conditions provided in this section.

B. As used in this section, the term "personal property" shall include, but not be limited to:

1. Portable, or otherwise moveable, buildings and structures;

2. Prefabricated metal buildings and structures, along with necessary utility services for such buildings or structures;

3. Roofs placed over existing roof structures; provided, lease-purchase of retrofit metal roofs shall be awarded by competitive bids and the governing board of any county, city or town, or school district shall comply with the Public Competitive Bidding Act of 1974 where total payments of principle and interest provided by the lease-purchase contract are anticipated to exceed Twenty-five Thousand Dollars ($25,000.00); and

4. Other structures or property that can be disassembled after installation and removed without permanent physical damage to existing property.

Notwithstanding the provisions of Section 7 of Title 60 of the Oklahoma Statutes, such personal property shall retain its status as personal property and shall not be deemed to become attached to the real estate for the duration of the lease-purchase agreement.

C. It is the purpose of this section to authorize such governing boards to enter into lease and lease-purchase contracts but not to incur any obligation upon the part of their respective municipal or governmental subdivisions in excess of the income and revenue thereof provided for such purposes for the fiscal year in which the lease contract is effectively operative.

D. Any agreement to lease and purchase real or personal property, where title is to be acquired by the municipal or governmental subdivision, shall state the purchase price of the real or personal property so leased and in no event shall the lease be extended so as to cause payment of more than the stated purchase price of the real or personal property plus interest not to exceed ten percent (10%) simple interest on the unpaid balance due as of each payment date. When the purchase price plus interest has been paid, the property shall belong to the lessee and the lessor shall deliver a bill of sale to the property to the lessee. Any lease-purchase agreement may include an option to purchase, transfer and acquire title during the term of the lease upon payment of the balance of the agreed purchase price, and each agreement shall include a provision to transfer title to the lessee at the end of the completed lease term for nominal or no additional consideration.

E. The payment for the lease or rental of real or personal property shall be made only from annual and supplemental appropriations specifically designated for such purpose, and no appropriation for the purpose of paying rentals on real or personal property shall be transferred or diverted to any other purpose, except as may be authorized by the terms of the agreement or by law.

F. When any real or personal property has been leased or rented during any fiscal year under any contract which permits continuance of such rental for the remainder of the fiscal year, the renting or leasing thereof shall be continued for the remainder of the fiscal year unless the governing body renting or leasing the same, by proper resolution entered in the minutes of the governing body, shall certify that the continuance of such rental is unnecessary and contrary to the public interest. However, to affect a contract termination of lease or lease-purchase equipment, written notice shall be sent by certified mail to the vendor thirty (30) days prior to the termination of the contract. Such notice shall be accompanied by payment of all sums then owed up to the date of the termination of the contract and shall certify that the canceled equipment is not being replaced by equipment performing similar functions. All equipment covered by such contract termination shall be returned to the vendor at the expense of the governmental agency terminating such contract. Such equipment shall be returned in good condition to a location designated by the vendor and the equipment, when returned, shall be free of all liens and encumbrances. Satisfaction of all of the requirements of this section shall release the governmental agency terminating such contract from any further obligation to make any further payments to the vendor.

also:  the following may work:

61. Public Buildings and Public Works
    [https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST61#PublicConstructionManagementActforPoliticalSubdivisions Public Construction Management Act for Political Subdivisions
    [https://www.oscn.net/Images/Applications/search/WDDocument.gif] Section 216 - Application - Definitions
    Cite as: 61 O.S. § 216 (OSCN 2020), Public Construction Management Act for Political Subdivisions

A. The Public Construction Management Act for Political Subdivisions shall apply to political subdivisions of this state.

B. As used in the Public Construction Management Act for Political Subdivisions:

1. "Agency construction management" means the construction entity provides services to the owner without taking on financial risks for the execution of the actual construction and/or time of performance, and the owner contracts directly with those awarded trade contracts for the work;

2. "At-risk construction management" means the construction entity, after providing agency services during the preconstruction period:

a. takes on the financial obligation to timely carry out construction under a specified cost agreement, and

b. enters into written subcontracts for the work in accordance with the Construction Management Procedures for Political Subdivisions;

3. "Construction management" means a public construction project delivery method based on an agreement whereby the owner acquires from a construction entity a series of services that include, but are not necessarily limited to, design review, scheduling, cost control, value engineering, constructability evaluation, preparation and coordination of bid packages and construction administration. Construction management includes:

a. agency construction management, and

b. at-risk construction management; and

4. "Political subdivision" or "subdivision" means any local governmental body formed pursuant to the laws of this state, including, but not limited to, school districts, vocational education districts, cities, counties, public trusts, public authorities, commissions or other local governmental bodies exercising their authority to contract for public construction delivery services. The term also applies to quasi-governmental and nongovernmental organizations delivering construction services using public funds or on behalf of a political subdivision

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s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
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OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com

From: Oama oama-bounces@lists.imla.org on behalf of Joe Weaver jweaver@basslaw.net
Sent: Tuesday, June 30, 2020 11:10 AM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Request for bid - Request for Proposal

We represent a Title 60 Public Trust (County is beneficiary).  Trust desires to contract for the purchase and installation of a complete audio/video system for a County facility.  The contractor will be required to provide all relevant audio, video and automation hardware and software for the design.  A question has arisen whether Trust must go out to bid for the equipment and installation (services) for the audio/video system pursuant to the Public Competitive Act (Title 61 O.S. sections 101 et seq. or whether the Trust can request proposals for the design and installation of the hardware and software for the system.

My initial thought is that because the design and installation of the audio/video system will require professional judgment and/or specialized knowledge not subject to uniform specifications, the Trust is not required to go out to bid for the system but can rather request proposals.

Any insight you can provide will be appreciated.

Thanks,

Joe Weaver

Joe Weaver

Attorney At Law

405.262.4040

405.262.4058 fax

joe@basslaw.netmailto:agbass@basslaw.net

[cid:image001.png@01D64EC9.C2A7ACD0]

www.basslaw.net

104 N. Rock Island Ave.

P.O. Box 157

El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

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I think an argument can be made that such a project is not subject to the Okla. Competitive Bidding Act.  .  The key definitions are in 61 O.S.  §102 (6) & (7)

6. "Public construction contract" or "contract" means any contract, exceeding Fifty Thousand Dollars ($50,000.00) in amount, awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs to or performing maintenance on the same except where the improvements, construction of any building or repairs to the same are improvements or buildings leased to a person or other legal entity exclusively for private and not for public use and no public tax revenues shall be expended on or for the contract unless the public tax revenues used for the project are authorized by a majority of the voters of the applicable public agency voting at an election held for that purpose and the public tax revenues do not exceed twenty-five percent (25%) of the total project cost. The amount of public tax dollars committed to the project will not exceed a fixed amount established by resolution of the governing body prior to or concurrent with approval of the project;

7. "Public improvement" means any beneficial or valuable change or addition, betterment, enhancement or amelioration of or upon any real property, or interest therein, belonging to a public agency, intended to enhance its value, beauty or utility or to adapt it to new or further purposes. The term does not include the direct purchase of materials, equipment or supplies by a public agency, or any personal property, including property as defined in paragraphs 1 and 4 of subsection B of Section 430.1 of Title 62 of the Oklahoma Statutes;
   62 O.S. §430.1 B states (in pertinent part):

"B. As used in this section, the term "personal property" shall include, but not be limited to:

. . . .

4. Other structures or property that can be disassembled after installation and removed without permanent physical damage to existing property. . . ."

This language suggests a plausible argument that audio/visual systems, if they can be disassembled and removed without permanent physical damage to existing property are not "public improvements" to a public building and thus not subject to purchase through the Competitive Bidding Act.

I hope this is helpful.

Jeff Bryant
Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.orgmailto:jbryant@omag.org

[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma  73013
Phone: 405-657-1419
Fax: 405-657-1401
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From: Oama oama-bounces@lists.imla.org on behalf of Joe Weaver jweaver@basslaw.net
Sent: Tuesday, June 30, 2020 11:10 AM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Request for bid - Request for Proposal

We represent a Title 60 Public Trust (County is beneficiary).  Trust desires to contract for the purchase and installation of a complete audio/video system for a County facility.  The contractor will be required to provide all relevant audio, video and automation hardware and software for the design.  A question has arisen whether Trust must go out to bid for the equipment and installation (services) for the audio/video system pursuant to the Public Competitive Act (Title 61 O.S. sections 101 et seq. or whether the Trust can request proposals for the design and installation of the hardware and software for the system.

My initial thought is that because the design and installation of the audio/video system will require professional judgment and/or specialized knowledge not subject to uniform specifications, the Trust is not required to go out to bid for the system but can rather request proposals.

Any insight you can provide will be appreciated.

Thanks,

Joe Weaver

Joe Weaver

Attorney At Law

405.262.4040

405.262.4058 fax

joe@basslaw.netmailto:agbass@basslaw.net

[cid:image001.png@01D64EDA.033F85A0]

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104 N. Rock Island Ave.

P.O. Box 157

El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.