The Oklahoma Underground Damage Prevention Act (the “Act”) requires, among other things, that “excavators” (1) notify all operators with underground facilities on or near an excavation area no more than 10 days nor less than 48 hours before excavation, and (2) after the operators of the underground facilities have marked the approximate location of such, to hand dig test holes to determine the precise location of the underground facilities in advance of excavation. The Act also provides an exemption from those requirements if the project is a “preengineered project”, a “certified project”, or “routine maintenance”.

In a recent decision of the Oklahoma Court of Appeals the “preengineered project” exemption was analyzed. The Act defines a “preengineered project” as

a public project wherein the public agency responsible for such project, as part of its engineering and contract procedures, holds a meeting prior to the commencement of any construction work on such project in which all persons, determined by the public agency to have underground facilities located within the construction area of the project, are invited to attend and given an opportunity to verify or inform the public agency of the location of their underground facilities, if any, within the construction area and where the location of all known underground facilities are duly located or noted on the engineering drawing and specifications for the project.

In the case, a contractor was sued by the owner of certain underground facilities that were damaged by the contractor while boring under a street on a public sewer project. The operator claimed the contractor violated the Act by failing to hand dig and expose the location of the line in question. The contractor argued that it was exempt from the Act because the project was “preengineered project” as defined by the Act. The Contractor based its argument on the fact that the public agency (1) had solicited information concerning underground facilities from all operators in the area of the construction in order to “preengineer” the project, (2) had received information from the operator regarding location of the line in question, (3) believed the information was correct when it noted the location of operator’s lines on the final plans, and (4) held a meeting to which all operators, including the plaintiff, were invited to verify or inform the public agency of the location of their underground facilities.

Despite the contractor’s arguments, the Court concluded that the contractor was not exempt from the Act’s notification and location requirements. The Court reasoned that the phrase “duly located or noted” in the statutory definition of “preengineered project” requires that the precise horizontal and vertical location of all known underground facilities be written or recorded on the engineering drawings and specifications at the meeting held by the public agency prior to commencement of any construction work. Despite finding that the horizontal and vertical location of the line in question was clearly (though incorrectly) shown on the plans, the project did not qualify as a “preengineered project” because (1) the operator’s representative that attended the pre-construction meeting told those present, including the contractor, that he did not know whether the depth shown on the plans was accurate and that they should call the operator to have the line located prior to excavating in the area, and (2) the final plans contained the “Call Okie” notice on the front page, and a “WARNING!! HIGH PRESSURE GAS CROSSING! CONTACT OPERATOR PRIOR TO BORE” notice on the profile showing the line in question. Based on these facts, the Court upheld a jury verdict against the contractor.
At first blush, this is an incongruous result. How is a contractor ever to know whether the information shown on the plans can be relied upon as accurate, and therefore, govern himself accordingly relative to the Act. The burden under such circumstances should not be on the contractor, but on the public agency and operators to either accurately reflect the location of the underground lines, or plainly indicate that the location is not precise and that the contractor should verify the location before proceeding with excavation in the area. In this case, though the plans directed the contractor to “contact the operator prior to boring”, the plans were also apparently very specific regarding the horizontal and vertical location of the line in question, and no one ever told the contractor the information on the plans was or could be wrong. Based on these facts, the fault appears to lie as much with the public agency as with the contractor. This is especially true inasmuch as the contractor contacted the operator prior to boring near the line.

One fact the Court mentioned only in passing, but which may have played a significant part in the Court’s decision, is the fact that despite the contractor’s claim in the lawsuit that it considered itself exempt from the Act under the “preengineered project” exemption, it nevertheless called Okie-One on several occasions during the course of its work on the project, including in connection with the work performed in the area of the line that was damaged. As a result of those calls, the operator horizontally located the line in the field on several occasions. What the contractor failed to do after the operator horizontally located the line in questions, was to precisely locate the line by hand digging test holes as required by the Act. It may be that the Court’s decision in this case was based, at least in part, on the difference between the contractor’s claim in the lawsuit (i.e. that it was exempt), and its conduct during the course of project (i.e. calling Okie One on a regular basis).

Either way, contractors are now faced with one Court’s interpretation of the Act that virtually eliminates a contractor’s ability to comfortably rely on any exemption under the Act. The safest bet for contractors seems to be complying with the Act under all circumstances.

Steven K. Metcalf

This Newsletter addresses recent items of interest in various areas pertaining to the construction industry. While the Newsletter may alert you to potential problems or changes in the law, it does not attempt to offer solutions, opinions, or advice concerning specific problems. Such legal advice or opinion can only be given by an attorney after careful consideration of the facts unique to a given situation. Inquiries concerning this Newsletter or its subject matter should be directed to its contributors, Steven K. Metcalf, Esq. at (918) 430-3703 or William H. Spitler, Esq. at (918) 430-3704.

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