Wichita bid board delays decision on airport terminal appeal
11/05/2013 10:18 PM
08/05/2014 9:20 PM
A Wichita general contractor says the city hasn’t been fair about the bids for the new Mid-Continent Airport terminal project. The city says the contractor knew the rules, failed to comply with them and deserves to lose the bid for the $100 million terminal.
It’s a legal confrontation that could be headed for court, as two of Wichita’s biggest commercial builders face off over one of the city’s richest projects in the past few years.
After about an hour of testimony Monday, the city’s board of bids recessed the third appeal in the case until today as it weighs whether Dondlinger/Hunt should get another shot at the airport project. The hearing will reconvene at 1 p.m. at City Hall for a two-hour executive session, but it’s not clear whether a verdict is expected today.
Wichita-based Dondlinger & Sons Construction and Indianapolis partner Hunt Construction are protesting their disqualification from the terminal bid. Dondlinger/Hunt’s bid of $99 million was the lowest submitted, and $2 million lower than Wichita’s Key Construction and Michigan-based Wallbridge. But city officials have ruled that the Dondlinger team did not make a good-faith effort to land enough federally required disadvantaged-business subcontractors for the project, and are primed to turn the project over to Key/Wallbridge.
Dondlinger wants the bid board to uphold its appeal and either award the firm the terminal contract, or agree to rebid it — actions city officials say will jeopardize the Federal Aviation Administration’s $53 million funding match and effectively kill the terminal project.
FAA officials have concurred in writing with the city’s decision to award Key/Wallbridge the terminal contract, and have argued, again in writing, against any restoration of the low bid to Dondlinger.
Deadline an issue
Central to the debate is the deadline for landing those disadvantaged subcontractors, at or more than 7.11 percent of the terminal project’s work. City officials and attorneys say the deadline is clear: the Feb. 24 bid opening date.
But Dondlinger officials argue that as the low bidder, they were required to certify only that they’d commit to meeting the goal — a goal they say they meet today with the addition of two disadvantaged-business contractors whose deals were inadvertently omitted from the original bid, and two more who have become certified as disadvantaged subcontractors.
However, Pat McCollum, the city’s project manager for the terminal, told the bid board that the two late certifications — Contect and Central Plains Stucco — didn’t apply for certification from the Kansas Department of Transportation until after the bid opening.
And the airport’s special counsel, Polly Jessen, asked the bid board to overturn the Dondlinger appeal, calling some of the Dondlinger arguments “disingenuous.”
During the testimony, Wyatt Hoch of Foulston Siefkin in Wichita, representing Dondlinger, argued that federal law gives the city wiggle room to accept post-bid documentation on Dondlinger’s roster of disadvantaged business subcontractors.
“This should have never reached the question of good-faith efforts,” Hoch said.
There was some legal finger-pointing: Hoch questioned whether the bid board could render an impartial decision on the appeal, since it has already unanimously recommended that Key/Walbridge build the terminal.
“Across the street to the north,” he said, “they call that a due process problem.”
But Jessen and McCollum dismissed the arguments, calling them “selective reading” of federal regulations.
Jessen said prospective bidders are required by law to point out “ambiguities” in bid documents, a frequent Hoch complaint, before they submit a bid. She said that signing a formal bid submission constitutes acceptance of the bid documents.
“It’s a little late in the process to start pointing to ambiguities in the bid documents,” she said.
Hoch did win the recusal of a bid board member, Deputy Wichita City Attorney Brian McLeod, who represented the city in earlier legal proceedings surrounding the terminal bid. The four remaining board members — public works chief Alan King, city finance director Kelly Carpenter, city budget officer Mark Manning and Megan Buckmaster from the city manager’s office — will make the decision.
Assistant City Manager Cathy Holdeman normally sits on the bid board, but city officials are awaiting a legal opinion on whether she is another appellate stop available to Dondlinger after the bid board rules, City Manager Robert Layton said.
McLeod sat on the board throughout the hearing, then agreed to recuse himself after a meeting between the city and Dondlinger’s attorneys.