Arnold Const. Co., Inc. v. Arizona Bd. of Regents

• Citation: 109 Ariz. 495,512 P.2d 1229
• Decision Date: 24 July 1973
• Docket Number: No. 11185,11185
• Parties: ARNOLD CONSTRUCTION COMPANY, INC., a Arizona corporation, Petitioner, v. ARIZONA BOARD OF REGENTS and Arizona State University, Tempe, Arizona Respondents.
• Court: Supreme Court of Arizona

Page 1229

512 P.2d 1229

109 Ariz. 495

ARNOLD CONSTRUCTION COMPANY, INC., a Arizona corporation, Petitioner, v. ARIZONA BOARD OF REGENTS and Arizona State University, Tempe, Arizona Respondents.

No. 11185.

Supreme Court of Arizona, In Banc.

July 24, 1973.

Lutich & D'Angelo by Peter T. D'Angelo, Phoenix, for petitioner.

Gary K. Nelson, Atty. Gen., by Ralph E. Willey, Asst. Atty. Gen., Phoenix, for respondents.

Gary K. Nelson, Atty. Gen., by Andrew W. Bettwy, Asst. Atty. Gen., Phoenix, for amicus curiae Registrar of Contractors.

HOLOHAN, Justice.

This matter comes before us by Special Action in which the petitioner, Arnold Construction Company, Inc., seeks to prohibit the Arizona Board of Regents from awarding a contract to Redden Construction, Inc. We accepted jurisdiction (Ariz. Const. art. 6, § 5, A.R.S.) because of the nature of the case and the importance of the issues presented.

The facts are not in dispute. The Arizona Board of Regents has authorized a project to construct an addition to the Physical Science Center at Arizona State University to be known as the Physics and Geology Addition. The architect employed by the Regents to design the structure had at the time of this action completed the plans and specifications for approximately sixty per cent of the total project. The Regents decided to commence construction of a portion of the project. Apparently the amount of funds available through legislative appropriation was not sufficient to allow the full project to be built at this time.

The phase of construction in question in this case does not in itself involve a structure for the support, shelter and enclosure of persons, animals, chattels or movable property, but it appears to be the foundation works for a building to be constructed. Bids were requested and received by the Regents in connection with the phase of the project, and the low bid was submitted by Redden Construction, Inc. which is licensed by the Registrar of Contractors as a Class B General Building, Heavy Construction, contractor. The second low bidder was Arnold Construction Company, Inc., the petitioner, which is licensed by the Registrar of Contractors as a Class B contractor and a Class A General Engineering contractor. It is conceded that Redden Construction, Inc. does not hold a Class A contractor's license. Arnold Construction Company, Inc. has protested an award of the contract to Redden Construction, Inc. on the grounds that Redden does not possess the necessary contractor's license and Redden is therefore ineligible to perform the contract.

If Redden does not possess the required contractor's license to do the work required its bid may not be considered. A.R.S. § 34--241, subsec. A provides:

'A. When calling for bids for contracts for public work to be performed on behalf of the state or any political subdivision thereof, which will be paid for from public funds, no bid shall be considered for performance of a contract, including construction work which is not submitted by a bidder duly licensed as a contractor in this state.'

The question presented in this case is whether Redden has the proper license for construction of the phase of the project to be built.

Redden Construction, Inc. has a General Building contractor's license (Class B). A.R.S. § 32--1102, subsec. 1 defines such a contractor as:

'1. General building contracting. A general building contractor is a contractor whose principal contracting business is in connection with any structure built, being built, or to be built for the support, shelter and enclosure of persons, animals, chattels or movable property of any kind requiring in its contruction the use of more than two unrelated building trades or crafts, or to do or superintend the whole or any part thereof, but does not include a person who merely furnishes materials or supplies as provided in § 32--1121 without fabricating them into or consuming them in performing the work of the general building contractor.'

The petitioner maintains that the phase of construction which is to be undertaken cannot be accomplished by a Class B contractor because the structure or project to be built is not in and of itself a structure for the support, shelter and enclosure of persons, animals, chattels or movable property. Implicit in petitioner's contention is the position that the specific job to be built must be considered separately and independent of any reference to the total project contemplated when all phases are completed. Petitioner argues that the only matter which this Court or the Regents may look to is the type of structure to be built under the contract to be awarded. Under such a view the proposed construction lies outside of the jurisdiction of a General Building contractor, and the proper license, it is contended, would be General Engineering which is defined under A.R.S. § 32--1102, subsec. 2 as:

'2. General engineering contracting. A general engineering contractor is a contractor whose principal contracting business is in connection with fixed works requiring specialized engineering knowledge and skills and includes but is not limited to any or all of the following divisions or subjects: irrigation, drainage, water power, water supply, flood control, inland waterways, harbors, railroads, highways, tunnels, airports and...