ODVA files $20 million lawsuit claiming negligence, breach of contract In Sallisaw VA project

The architectural firm blamed for huge cost overruns as well as untenable delays in the construction of the Sallisaw Veterans Center now knows how much compensation the Oklahoma Department of Veteran Affairs expects for what it claims as negligence and breach of contract resulting in “numerous and significant errors.”

In a lawsuit filed Aug. 31 in Sequoyah County District Court by ODVA legal firm Hayes, Magrini & Gatewood, the Oklahoma Office of Management and Enterprise Services (OMES), on behalf of the ODVA, is seeking $20 million in damages from Orcutt | Winslow, the Arizona firm contracted in May 2019 to perform all architectural services required for the Sallisaw project.

But Orcutt | Winslow isn’t the only party ODVA believes was negligent, and should also be held accountable.

Cooper Project Advisors, which ODVA contracted with in February 2020 to act as ODVA’s representative and advisor on the project, is also named as a defendant in the lawsuit. According to the affidavit, Cooper was expected to analyze design documents and meet with Orcutt | Winslow to ensure that necessary modifications to the design and specifications were incorporated into the final contract documents.

Among the claims against Orcutt | Winslow is the firm’s failure to properly incorporate fire rating requirements by applicable building codes, as well as failure to identify or account for “federally protected wetlands which had been unlawfully disturbed” during construction.

The petition alleges that Orcutt | Winslow “failed to perform its architectural services consistent with the professional skill and care ordinarily provide by architects practicing in the same or similar locality under the same or similar conditions.”

Likewise, the court document claims Cooper was “negligent in its duties as ODVA’s representative and advisor, and failed to identify the errors and omissions in the contract documents during the design phase of the project.”

“As a result of Orcutt’s negligence, errors and omissions, significant design changes were required” in order to ensure the construction documents and construction work complied with the applicable building codes, the petition claims. The lawsuit also says Orcutt | Winslow had a duty and obligation to investigate any environmental issues that might impact the design of the project. But the U.S. Army Corps of Engineers notified the ODVA that the construction site had encroached on federally protected wetlands.

The lawsuit holds Orcutt | Winslow and Cooper responsible inclusive. In addition to the $20 million in damages, the petitioner also seeks attorneys’ fees, costs and interest.

Summons issued to Orcutt | Winslow and Cooper mandate a written response to the petition by Sept. 20. Should a defendant fail to answer the petition by that date, judgment will be rendered against the defendant with costs of the action.

The petition claims that as a direct result of “negligence and breach of contract” by both Orcutt | Winslow and Cooper, the ODVA has been damaged in an amount in excess of $20 million. The damages alleged include, but are not limited to:

• Costs associated with architectural services required to correct the errors in the construction documents

• Costs to repair physical damage to property

• Costs to demolish and rebuild certain portions of the project work

• Costs of materials and labor for additional work required to bring the project up to the standards of the applicable building codes

• Additional grading and construction costs associated with correcting and reestablishing the wetland areas on the project site

• Additional onsite general condition costs incurred as a result of the extended duration of the project work

• Additional operational costs and losses incurred as a result of the extended duration of the project work

History of the project

Following the 2020 ground breaking at the 90-acre location on U.S. 59 south of I-40, construction of the longterm care facility made major strides during the ensuing year, with the skeleton of the 230,000-square-foot center quickly taking shape.

Then, during construction, Flintco, which the OMES contracted to act as construction manager at risk, encountered “numerous issues with the construction documents which required it to issue requests for information to Orcutt in order to resolve errors and conflicts identified in the construction documents.”

But, according to the petition, Orcutt | Winslow failed to timely and properly respond to Flintco’s requests for information (RFIs), causing significant delays and additional costs to the project.

Prior to the alleged unresponsiveness, and relying on construction documents prepared and issued by Orcutt | Winslow, Flintco solicited bids and awarded trade packages. OMES and Flintco also amended the project contract to reflect a guaranteed maximum price of $64,982,143.

But upon discovering the “numerous and significant errors” in the construction documents prepared by Orcutt | Winslow, OMES terminated the architectural firm’s contract.

For the majority of 2022, it appeared no work was being done while the massive center consisted primarily of exterior walls overlayed with green house wrap.

When work resumed in October 2022, then-ODVA executive director Joel Kintsel cited a dispute with the contractor as the reason for the eight-month work stoppage.

Kintsel then projected a final cost to complete the veterans center of $92 million. He also pushed back the opening of the center from the original March 2023 date to April 2024. When retired rear admiral and former U.S. Navy undersecretary Greg Slavonic was hired to replace Kintsel, almost $22 million in additional funding was appropriated by the Oklahoma Legislature. A completion date was revised to October 2024, but inspection and other requirements by the federal Veterans Administration could delay the opening until January 2025.

In June, it was announced operational challenges and massive financial deficits had forced the Talihina Veterans Home to be shuttered by Oct. 1. But within a week, state legislators reversed the decision.

Sallisaw Veterans Center

When completed, the Sallisaw veterans center will feature four buildings — three residential “neighborhoods” and a central community center. A neighborhood at the center is similar to a subdivision in a housing development. In two of the buildings currently under construction, a neighborhood consists of 72 residential rooms, with a third building comprised of 36 residences. The centralized community center will offer a reception area, dining room, a large room that can be used as a theater or a chapel, space for arts and crafts, a barber shop, a physical therapy room and a pharmacy to serve medical needs of the residents.

“This is a state-of-the-art facility. It’s a home-like environment, and will be the premier facility of its kind in the U.S.,” Kintsel said when he visited Sallisaw in October 2021. He said veterans with 70% disability or higher will not have to pay anything to stay in the facility.

Sallisaw beat out finalists Poteau and Muskogee for the new eastern Oklahoma veterans center location. At the beginning of the selection process, there were six communities, which also included McAlester, Hugo and Holdenville.

About Orcutt | Winslow

According to the Orcutt | Winslow website, the firm has more than 50 years of practice in architecture, planning and interior design. “Our work is a testament to the passion we share with our clients [and] the community.”

The architectural firm has designed many senior living facilities, including six veterans centers in addition to the Sallisaw facility — Arizona State Veterans Home in Tucson, Bowling Green Veterans Center in Kentucky, Idaho State Veterans Home in Post Falls, Kentucky State Veterans Home in Radcliff, Texas State Veterans Home in Houston and West Tennessee Veterans Home in Memphis. Photos on the firm’s website of the Houston facility bear a striking resemblance to the architectural drawings of the Sallisaw center.

The design portfolio for Orcutt | Winslow shows that the firm was also responsible for non-veterans-specific retirement communities in Arizona, Colorado, Nevada and Texas.

The firm was ranked 66th in the nation for Building Design + Construction’s 2020 Giants 400 Report. The ranking includes the nation’s top architecture firms for nonresidential and multifamily buildings work, and represents the impact Orcutt | Winslow made on the built environment during the past 50 years. (BD+C is a leading business content platform for architects, engineers, contractors and building owners/developers.)

The firm has satellite offices in Irving, Texas; Shreveport, La.; Nashville, Tenn.; and Jeffersonville, Ind.