Hi all, one of my towns is in the middle of the construction of a new public
safety center. Recently it was discovered by the independent building code
inspector that was hired by the city, that the exhaust fume ventilation
system that was installed pursuant to the architect's plans does not meet
the current building code, thereby making the building unoccupiable by the
fire department. The city obviously wants to be able to use its new fire
station when completed. The cost to install a exhaust vent system that will
meet with the code is approximately $100,000. My questions is, does the city
have to seek competitive bids for this system, or can it be included in the
overall bid by the contractor and seen as a change order?

Thanks

W. Lee Stout

WL Stout PC

112 S. Main St.

P.O. Box 262

Newkirk, OK 74647

(580) 362-2032

(580) 362-2035 Fax

stoutlawoffice@att.net

The lawyer answer: it depends.

First, how much was the overall project, and have there been any change orders?  Changes orders are limited to a percentage of the original contract amount.  See, 61 O.S. § 121 - Change Orders or Addenda (change orders to contracts of $1,000,000 or less limited to 15% cumulative increase; change order to contracts over $1,000,000 limited to greater of $150,000 or 10% cumulative increase in the original contract amount).  If the change exceeds that amount, it requires  rebidding under § 121.

Second, what is the nature of the change?  A change in the project specifications can result in the project being a different project than what was originally bid.  See, Dolezal v. Bostick, 1914 OK 82, 139 P. 964 (It would violate competitive bidding requirements if a bid was awarded on one set of specifications and plans, and then the plans and specifications were changed completely and a contract entered into with the successful bidder for work that was never advertised).  Dolezal was an extreme example, but you can see the issue.  If the change order would be within the accepted range under § 121, that provides some comfort that, perhaps, the state believes it will not become a "new project" under it exceeds that threshold financial level.  You will have to look at your specific facts to determine whether it constitutes a "new proposal."

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: stoutlawoffice@att.net stoutlawoffice@att.net
Sent: Tuesday, June 20, 2023 2:02 PM
To: oama@lists.imla.org
Subject: [Oama] Competitive Bid Requirement for Existing Project

Hi all, one of my towns is in the middle of the construction of a new public safety center. Recently it was discovered by the independent building code inspector that was hired by the city, that the exhaust fume ventilation system that was installed pursuant to the architect's plans does not meet the current building code, thereby making the building unoccupiable by the fire department. The city obviously wants to be able to use its new fire station when completed. The cost to install a exhaust vent system that will meet with the code is approximately $100,000. My questions is, does the city have to seek competitive bids for this system, or can it be included in the overall bid by the contractor and seen as a change order?

Thanks

W. Lee Stout
WL Stout PC
112 S. Main St.
P.O. Box 262
Newkirk, OK 74647
(580) 362-2032
(580) 362-2035 Fax
stoutlawoffice@att.netmailto:stoutlawoffice@att.net

And I would also look at the Architect’s contract with the City to see about filing a claim under his errors and omissions policy…..  But I would make sure the interpretation of the Code is correct, first.

Beth Anne

Beth Anne Childs
The Childs Law Firm, PLLC
1015 South Detroit Avenue
Tulsa, Oklahoma. 74120
(918) 521-3092

From: Jon Miller JMiller@cityofmustang.org
Date: Tuesday, June 20, 2023 at 3:58 PM
To: stoutlawoffice@att.net stoutlawoffice@att.net, oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Re: Competitive Bid Requirement for Existing Project
The lawyer answer: it depends.

First, how much was the overall project, and have there been any change orders?  Changes orders are limited to a percentage of the original contract amount.  See, 61 O.S. § 121 - Change Orders or Addenda (change orders to contracts of $1,000,000 or less limited to 15% cumulative increase; change order to contracts over $1,000,000 limited to greater of $150,000 or 10% cumulative increase in the original contract amount).  If the change exceeds that amount, it requires  rebidding under § 121.

Second, what is the nature of the change?  A change in the project specifications can result in the project being a different project than what was originally bid.  See, Dolezal v. Bostick, 1914 OK 82, 139 P. 964 (It would violate competitive bidding requirements if a bid was awarded on one set of specifications and plans, and then the plans and specifications were changed completely and a contract entered into with the successful bidder for work that was never advertised).  Dolezal was an extreme example, but you can see the issue.  If the change order would be within the accepted range under § 121, that provides some comfort that, perhaps, the state believes it will not become a “new project” under it exceeds that threshold financial level.  You will have to look at your specific facts to determine whether it constitutes a “new proposal.”

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: stoutlawoffice@att.net stoutlawoffice@att.net
Sent: Tuesday, June 20, 2023 2:02 PM
To: oama@lists.imla.org
Subject: [Oama] Competitive Bid Requirement for Existing Project

Hi all, one of my towns is in the middle of the construction of a new public safety center. Recently it was discovered by the independent building code inspector that was hired by the city, that the e
sophospsmartbannerend
Hi all, one of my towns is in the middle of the construction of a new public safety center. Recently it was discovered by the independent building code inspector that was hired by the city, that the exhaust fume ventilation system that was installed pursuant to the architect’s plans does not meet the current building code, thereby making the building unoccupiable by the fire department. The city obviously wants to be able to use its new fire station when completed. The cost to install a exhaust vent system that will meet with the code is approximately $100,000. My questions is, does the city have to seek competitive bids for this system, or can it be included in the overall bid by the contractor and seen as a change order?

Thanks

W. Lee Stout
WL Stout PC
112 S. Main St.
P.O. Box 262
Newkirk, OK 74647
(580) 362-2032
(580) 362-2035 Fax
stoutlawoffice@att.netmailto:stoutlawoffice@att.net