State ex rel. Oklahoma Capitol Imp. Authority v. E. A. Cowen Const. Co., 47145

• Decision Date: 17 January 1974
• Docket Number: No. 47145,47145
• Citation: 518 P.2d 1264,1974 OK 4
• Parties: STATE of Oklahoma ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Petitioner, v. E. A. COWEN CONSTRUCTION COMPANY, Respondent-Cross-Applicant.
• Court: Oklahoma Supreme Court

Page 1264

518 P.2d 1264

STATE of Oklahoma ex rel. OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY, Petitioner, v. E. A. COWEN CONSTRUCTION COMPANY, Respondent-Cross-Applicant.

No. 47145.

Supreme Court of Oklahoma.

Jan. 17, 1974.

IRWIN, Justice:

Two public works contracts were entered into by the State of Oklahoma, ex rel. Oklahoma Capitol Improvement Authority In this original proceeding, Authority requests this Court's guidance in determining whether the payments should be made to Cowen in light of the questions raised in the criminal proceedings.

(Authority), with E. A. Cowen Construction Company (Cowen). As a result of questions to be litigated in some pending criminal proceedings later discussed, Authority has withheld payment of certain sums allegedly due and owing Cowen for work completed under the terms of these contracts.

Cowen's cross-application seeks a writ of mandamus directing Authority to approve and pay the claims for the sums allegedly due and owing under the terms of the contracts.

We will first discuss the status of the two contracts involved.

FIRST CONTRACT

The December 16, 1972 contract, in the amount of $7,820,500.00, was for the construction of a tax and an education building in Oklahoma City. Construction of these two buildings is now 78% Complete. On this contract Authority has previously paid Cowen $6,284,430.00 and there is allegedly due and owing him the sum of $324,985.00, payment of which he seeks to compel by mandamus.

Although under the terms of the contract Authority is holding in retainage a total of $734,379.00, this retainage is not here in controversy.

SECOND CONTRACT

The September 4, 1973 contract, in the amount of $8,205,000.00, was for the construction of a state office building in Tulsa. Construction under this contract is approximately 1% Complete. On this contract Authority has paid Cowen $359,023.00 and there is allegedly due and owing him the sum of $226,100.00, of which payment is sought to be compelled by mandamus. Under this contract Authority is withholding $65,014.00 in retainage, but the retainage is not here in controversy.

As alleged by Authority, on December 21, 1973, a grand jury convened in Oklahoma County and returned an indictment against certain officers and employees of Cowen for conspiring to defraud the State in connection with transactions involving the First Contract. Attached to Authority's Petition is the Indictment. In one of the counts, an officer of Cowen stands indicted for entering into a fraudulent, collusive agreement with another to submit a false, deceitful and collusive bid for the construction work on the tax and education buildings (First Contract) for the purpose of circumventing the object and intent of the laws requiring secret and competitive bidding.

On December 28, 1973, Authority adopted a resolution requiring all contractors on all existing contracts with it to file a non-collusion affidavit, and adopted a policy that no payments would be made to any contractor unless and until such affidavit had been signed and filed. An officer of Cowen subsequently signed such affidavit.

On January 8, 1974, an Information was filed by the District Attorney for District No. 7, Oklahoma County, charging that an officer of Cowen committed the crime of Perjury when he signed the non-collusion affidavit required by Authority.

Authority and Cowen both contend this Court should assume original jurisdiction under Art. VII, § 4, of the Constitution, which grants it superintending control over all inferior courts, and all agencies, commissions and boards...