A security upgrade at the Capitol Complex wasn't improperly awarded even though it wasn't given to the lowest bidder, a Kanawha County judge has ruled.
McClanahan Construction of Poca was the lowest of three bidders at $3 million for a project to install a security fence around the Governor's Mansion and convert two parking lots north of the state Culture Center into a bus terminal. But the second-lowest bidder, Wiseman Construction, was awarded the project at $3.4 million after McClanahan told state officials it couldn't comply with a 120-day deadline to complete the project.
"Wiseman was the lowest qualified responsible bidder because it confirmed that it was 'ready, able and willing to timely furnish the labor and materials required to complete the contract,'" Circuit Judge Joanna Tabit wrote in an order signed Sept. 9. "By its own candid admission, [McClanahan], could not satisfy this minimum requirement."
McClanahan was disqualified for submitting a nonconforming bid, on the grounds it indicated it could not comply with a 120-day deadline to complete the project. The company said Metro Masonry of Barboursville was citing a six-month to one-year backlog in obtaining limestone veneer.
Wiseman had also cited Metro Masonry for the limestone, however, it never reported it couldn't meet the 120-day deadline, Tabit ruled.
State Purchasing Division employees didn't have a duty to investigate limestone suppliers, the judge wrote.
McClanahan had claimed in a lawsuit against the state that Wiseman was given extra time to find a materials supplier for limestone and given the name of another limestone subcontractor. The day McClanahan filed a protest over the contract being given to Wiseman, state employees contacted Wiseman to confirm it could meet the 120-day deadline using Metro Masonry. Wiseman responded that it had found another limestone supplier.
Phil Melick, a lawyer for McClanahan, argued that state employees shouldn't have thrown out McClanahan's bid when it notified them about Metro Masonry's backlog. Instead, the state should have responded to a letter from McClanahan asking to be provided with the names of limestone suppliers its contractor used for the project's budget estimate.
Tabit ruled, though, that state purchasing officials didn't have a duty to communicate with McClanahan before the bid was awarded.
When the purchasing employees contacted Wiseman, it was to confirm it could comply with the 120-day deadline, Tabit ruled.
The judge's order didn't mention Melick's argument about a June 10 memorandum from the Division of Protective Services, which stated McClanahan's bid was accepted. Melick said that the document wasn't provided to him until he filed a Freedom of Information Act request with protective services, as it was not included in the purchasing division's files.
Tara Lyle, with the Purchasing Division, testified last month that she simply threw the document away because it was an error.
Although the judge ruled against McClanahan, she did not sanction the company for not complying with a prior order, as attorneys for the state had requested.
The judge had previously agreed to have Wiseman halt work at the Capitol while she considered McClanahan's lawsuit upon the posting of a $300,000 bond. Attorneys for the state said McClanahan should be sanctioned for not posting it. Bonds are often put in place to discourage frivolous filings.
Tabit denied the request and said the state got what it wanted when McClanahan didn't post the bond and Wiseman was able to continue working.
"Thus, the State Defendants actually benefited from the Plaintiff's failure to post bond," Tabit wrote.
Reach Kate White at kate.white@wvgazette.com, 304-348-1723 or follow @KateLWhite on Twitter.