Lawyer Threatens Legal Action Over WCS Bids
July 28, 2016 at 4:25 p.m.
By David [email protected]
Attorney Daniel M. Drewry, with Drewry Simmons Vornehm LLP, Indianapolis, representing Fetters Construction Inc., Auburn, sent the school board members a notice of bid protest regarding the new Leesburg and Madison elementary schools projects Friday. Monday, Drewry approached the school board during its regular monthly meeting.[[In-content Ad]]Bids were opened Jan. 20. On Jan. 28, according to Drewry, Kovert Hawkins issued a letter to Fetters in which it noted that four bidders had been identified as responsive and responsible bidders: Fetters, Visser Brothers Inc., Corporate Construction Inc. and W.A. Sheets and Sons Inc.
The letter advised an award had not yet been made because Warsaw Schools had not determined which alternates to accept, but these four companies were the low bidders. The letter requested more information from each company to provide Warsaw Schools "with the information they feel is needed to come to an informed and valued decision of the overall most responsible bid."
Fetters provided the requested information, Drewry said.
According to the notice of protest, "We understand that on or before Feb. 17, (Warsaw Schools) through its facilities committee and/or board of trustees, held a closed meeting to complete its review of the bids received at the bid opening and award the general construction contract(s) for the project. This meeting was neither advertised nor held open to the public. On Feb. 17, (Warsaw Schools) advised (Kovert Hawkins) of its decision to award the general construction contract to CCI. (Kovert Hawkins) confirmed (Warsaw School's) decision in its Feb. 18 Notice of Award to all bidding contractors."
Drewry told the school board that Fetters' bid was the lowest, responsive bid submitted. He said the bid was $160,400 less than CCI's bid.
Under Title 36 of the Indiana Code, Drewry said a public agency must award the contract to the "lowest responsible and responsive bidder." The other option by WCS is to reject all bids and to rebid the project. There is no right to subjectively award a public works contract to a subjectively perceived "best interests" standard, Drewry told the board.
He also said to the extent that Warsaw Schools relies on a determination that CCI was "most responsible," such a decision is inherently flawed and void under the statutory bidding requirements. Warsaw Schools cannot make comparisons among bidders to determine which is more responsible and that such an evaluation is prohibited.
According to the Notice of Protest, Drewry indicates the manner in which Warsaw Schools determined to award the contract to CCI is "fatally flawed."
"First and foremost, (Warsaw Schools) violated Title 36 by awarding the contract to CCI at a closed meeting, which was not advertised nor open to the public. (Warsaw Schools) can not cure that procedural defect by reannouncing that decision at the Feb. 23 regularly scheduled board meeting. As such, the award to CCI is invalid and void," the Notice states.
If after the bids are opened, the awarding entity awards the bid to someone other than the lowest bidder, the entity must justify their reasoning, the notice indicates.
If WCS does not revoke any bid award to CCI, and does not award the project to the lowest bidder, which Drewry said is Fetters.
The notice of bid protest served to the board states, "Fetters is entitled and prepared either in its own name or through appropriate taxpayers to pursue all of its rights and remedies to redress such wrongful action by injunctive and/or declaratory relief in order to secure a judicial determination of its grievances and its entitlement to the contract for this bid work. Fetters does not want to go to this length, but it is prepared to do so."
After Drewry spoke to the board, Troy Warner, representing Local Electrical Workers 153, reminded the board of the common construction wage laws. He asked that the letter of the law be followed. "You have the duty that the workers building your schools get the benefits and (pay) they are due," Warner said.
Jack Kelly, who served on the wage hearing committee, said he studied the bid tabs. He asked the board that they seriously review the bid tabs. He indicated that he contacted the State Board of Accounts on the matter.
"I'm concerned that the selection process was not accurate," Kelly said. He said the board should consider that to avoid any costly litigation.
Dan Robinson, school board vice president, said the base bids only include buildings. There are two groups of alternatives, one being a wish group and the other are mandatory, such as heating and air conditioning and fire alarm systems.
"Base bids do not tell the story," Robinson said. "There are many, many things to look at."
Board President Deb Wiggins said the board members selected by the board to represent the school system's interest at the facilities committee meetings are Kent Adams, Ron Yeiter and Robinson.
She said the board will review this information and make its decisions on what its actions are by the end of the first week in March. All decisions will be announced at a public meeting, Wiggins said.
She said no decisions have been made and no bids have been awarded.
At the meeting, Jamie Lake, representing the architectural firm for the project, Kovert Hawkins, announced they received bids on all four elementary school projects.
The new Leesburg school project received 14 bids, thenew Madison school project received 14 bids, combination bid for both Leesburg and Madison received 15 bids, the Jefferson improvement and addition project received 11 bids, and the Claypool school project received eight bids.
Base bids for Madison ranged from $11.010 million from Visser Brothers, $11.091 million from Fetters, to $13.486 million from James-Jackson.
Leesburg base bids ranged from $10,812,205 from Visser Brothers to $12,644,254 from Gibson-Lewis.
The combination base bid for the Leesburg and Madison projects ranged from $21.501 million from Visser Brothers to more than $25 million from Gibson-Lewis.
Base bids for the Jefferson project ranged from $7.085 million from Visser Brothers to $7,997,100 from DJ Construction Co. Inc.
Claypool's eight base bids ranged from $7.199 million from MKS to $7,885,439 from Larson Danielson.
Attorney Daniel M. Drewry, with Drewry Simmons Vornehm LLP, Indianapolis, representing Fetters Construction Inc., Auburn, sent the school board members a notice of bid protest regarding the new Leesburg and Madison elementary schools projects Friday. Monday, Drewry approached the school board during its regular monthly meeting.[[In-content Ad]]Bids were opened Jan. 20. On Jan. 28, according to Drewry, Kovert Hawkins issued a letter to Fetters in which it noted that four bidders had been identified as responsive and responsible bidders: Fetters, Visser Brothers Inc., Corporate Construction Inc. and W.A. Sheets and Sons Inc.
The letter advised an award had not yet been made because Warsaw Schools had not determined which alternates to accept, but these four companies were the low bidders. The letter requested more information from each company to provide Warsaw Schools "with the information they feel is needed to come to an informed and valued decision of the overall most responsible bid."
Fetters provided the requested information, Drewry said.
According to the notice of protest, "We understand that on or before Feb. 17, (Warsaw Schools) through its facilities committee and/or board of trustees, held a closed meeting to complete its review of the bids received at the bid opening and award the general construction contract(s) for the project. This meeting was neither advertised nor held open to the public. On Feb. 17, (Warsaw Schools) advised (Kovert Hawkins) of its decision to award the general construction contract to CCI. (Kovert Hawkins) confirmed (Warsaw School's) decision in its Feb. 18 Notice of Award to all bidding contractors."
Drewry told the school board that Fetters' bid was the lowest, responsive bid submitted. He said the bid was $160,400 less than CCI's bid.
Under Title 36 of the Indiana Code, Drewry said a public agency must award the contract to the "lowest responsible and responsive bidder." The other option by WCS is to reject all bids and to rebid the project. There is no right to subjectively award a public works contract to a subjectively perceived "best interests" standard, Drewry told the board.
He also said to the extent that Warsaw Schools relies on a determination that CCI was "most responsible," such a decision is inherently flawed and void under the statutory bidding requirements. Warsaw Schools cannot make comparisons among bidders to determine which is more responsible and that such an evaluation is prohibited.
According to the Notice of Protest, Drewry indicates the manner in which Warsaw Schools determined to award the contract to CCI is "fatally flawed."
"First and foremost, (Warsaw Schools) violated Title 36 by awarding the contract to CCI at a closed meeting, which was not advertised nor open to the public. (Warsaw Schools) can not cure that procedural defect by reannouncing that decision at the Feb. 23 regularly scheduled board meeting. As such, the award to CCI is invalid and void," the Notice states.
If after the bids are opened, the awarding entity awards the bid to someone other than the lowest bidder, the entity must justify their reasoning, the notice indicates.
If WCS does not revoke any bid award to CCI, and does not award the project to the lowest bidder, which Drewry said is Fetters.
The notice of bid protest served to the board states, "Fetters is entitled and prepared either in its own name or through appropriate taxpayers to pursue all of its rights and remedies to redress such wrongful action by injunctive and/or declaratory relief in order to secure a judicial determination of its grievances and its entitlement to the contract for this bid work. Fetters does not want to go to this length, but it is prepared to do so."
After Drewry spoke to the board, Troy Warner, representing Local Electrical Workers 153, reminded the board of the common construction wage laws. He asked that the letter of the law be followed. "You have the duty that the workers building your schools get the benefits and (pay) they are due," Warner said.
Jack Kelly, who served on the wage hearing committee, said he studied the bid tabs. He asked the board that they seriously review the bid tabs. He indicated that he contacted the State Board of Accounts on the matter.
"I'm concerned that the selection process was not accurate," Kelly said. He said the board should consider that to avoid any costly litigation.
Dan Robinson, school board vice president, said the base bids only include buildings. There are two groups of alternatives, one being a wish group and the other are mandatory, such as heating and air conditioning and fire alarm systems.
"Base bids do not tell the story," Robinson said. "There are many, many things to look at."
Board President Deb Wiggins said the board members selected by the board to represent the school system's interest at the facilities committee meetings are Kent Adams, Ron Yeiter and Robinson.
She said the board will review this information and make its decisions on what its actions are by the end of the first week in March. All decisions will be announced at a public meeting, Wiggins said.
She said no decisions have been made and no bids have been awarded.
At the meeting, Jamie Lake, representing the architectural firm for the project, Kovert Hawkins, announced they received bids on all four elementary school projects.
The new Leesburg school project received 14 bids, thenew Madison school project received 14 bids, combination bid for both Leesburg and Madison received 15 bids, the Jefferson improvement and addition project received 11 bids, and the Claypool school project received eight bids.
Base bids for Madison ranged from $11.010 million from Visser Brothers, $11.091 million from Fetters, to $13.486 million from James-Jackson.
Leesburg base bids ranged from $10,812,205 from Visser Brothers to $12,644,254 from Gibson-Lewis.
The combination base bid for the Leesburg and Madison projects ranged from $21.501 million from Visser Brothers to more than $25 million from Gibson-Lewis.
Base bids for the Jefferson project ranged from $7.085 million from Visser Brothers to $7,997,100 from DJ Construction Co. Inc.
Claypool's eight base bids ranged from $7.199 million from MKS to $7,885,439 from Larson Danielson.
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