Background
- ODOT issued an RFP (Solicitation #3450004339) to demolish and replace an eastbound truck scale at El Reno, requiring hydraulic compression stainless-steel load cells and NTEP Certificates of Conformance (Handbook 44 compliance).
- Cardinal and Unibridge submitted bids; Unibridge was later deemed nonresponsive because its bid used electronic analog load cells (not hydraulic compression) and unspecified alloy steel (not stainless steel).
- ODOT awarded the contract to Cardinal; Unibridge protested administratively, arguing (among other things) the procurement should have been treated as a public construction contract under the PCBA rather than an acquisition under the CPA.
- The ALJ and ODOT found the procurement was an acquisition of goods and services under the CPA, not a PCBA public construction contract, and concluded Cardinal’s bid was the most responsive and not a sole-source award.
- Unibridge also argued Cardinal’s NTEP Certificates did not satisfy NIST Handbook 44 requirements (v-min and capacity issues); experts disagreed, and the NTEP administrator rejected Unibridge’s concerns.
- The district court affirmed the agency’s final order; the Court of Civil Appeals affirmed, finding the agency’s factual findings supported by substantial evidence and not clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the solicitation was a public construction contract under the PCBA or an acquisition under the CPA | Solicitation involves demolition, pit and foundation construction and thus is primarily construction (PCBA applies) | Predominant thrust is purchase of a truck scale; construction services are incidental (CPA applies) | Court held CPA applied; procurement was an acquisition of goods/services, not primarily construction |
| Whether the procurement should have been treated as a sole-source acquisition | Cardinal is the only known supplier of hydraulic compression stainless-steel load cells; thus it was effectively sole-source | ODOT’s internet research showed other potential suppliers; more than one bidder could provide the product | Court found agency evidence (though minimal) supported the finding that it was not a sole-source acquisition |
| Whether Cardinal’s bid complied with NIST Handbook 44 (NTEP Certificates) | Unibridge’s expert said Cardinal’s certificates violated v-min rules and did not cover required capacity | Cardinal’s expert and the NTEP administrator disagreed; ODOT treated certificate sufficiency as contract compliance to be tested after installation | Court held agency reasonably found Cardinal’s NTEP Certificates complied and Unibridge failed to prove improper award |
Key Cases Cited
- Agrawal v. Oklahoma Dept. of Labor, 364 P.3d 618 (Okla. 2015) (standard of review for administrative agency orders: substantial evidence and no clear error)
- Oklahoma Dep't of Pub. Safety v. McCrady, 176 P.3d 1194 (Okla. 2007) (appellate court may not substitute its judgment for an agency's factual determinations)
- Gilbert Cent. Corp. v. State, 716 P.2d 654 (Okla. 1986) (mixed transactions: determine predominant thrust to decide between sale or contract for work/labor)
- Tubbs v. State ex rel. Teachers' Ret. Sys. of OK, 57 P.3d 571 (Okla. 2002) (deference to agency findings supported by reliable, probative evidence)