Second Class Mr. Contractor
A sequel to my Second Class Mr. Citizen post. Part of an irregular series on how thoughtless, shallow decisions trash both the public interest and real human beings.
Confession
The roughest parts of commentary writing are the moments when you find out you didn't have the whole story when you were so sure you did. That happened to me recently. So I'm going to self-flagellate by putting my sin up in the bright marquee lights for a few paragraphs before I get back down to the drudgery of being right all the time :)
Three weeks ago, I misread a statute and accused the Valley County Commission of breaking bidding law. They didn't. They bent it plenty, but I erred in calling their actions illegal. Editor Tom trained me to read statutes and never trust anybody else's interpretation. It's beautiful advice and it has saved me from many errors. Except this time.
So apologies to the commission—on one point. Until successfully challenged (more on that below), they acted within the law. But they slid through a loophole that they shouldn't have and worse, didn't need to. It can be credibly argued that they robbed one contractor to favor another. That is the tale this post tells.
NEW READER or forgot to complain about what I said about something? Find past posts HERE
Since it looks like I'm going to be writing about the Commishes a bunch in the near future, it's time I gave them a nickname, like I did McCity, so I don't have to keep writing out Valley County Commission. —I got it! VcComm! What else?
Tomi's Timeline In A Sentence (all quotes figurative): County buys building in Cascade for offices, names it Cascade Annex > VcComm hires consultant to draft Scope of Work, puts project out for bid > Only one bid received for $451K, VcComm collectively faints > one commissioner says, 'wait, I know a guy...' and brings back an estimate of $250K. > VcComm chats about it behind closed doors. Back in public session they announce 'problem solved!' They pass a resolution invoking the loophole, which tells Contractor #1 to take the considerable business expense he sunk into his proposal and shove it. > next meeting, two commishes vote to hire Contractor #2 but the third member rightly says, 'this smells as bad as the last time I tried to cook kale,' and votes 'no'.
Maybe all this procedure stuff is boring, but not if you are in Contractor #1's shoes. This Substack devotes itself to showing how poor and arrogant decisions hurt not only the public at large in a philosophical sense, but how it trashes real human beings, one of whom one day might be you, dear reader.
When Contractor #1's bid came in, VcComm had three options. The one they took allowed them to throw Contractor #1 under his truck-and-tool-trailer and bring in their own guy. Since the difference between the two estimates was $200,000, that would definitely be the course anybody would take all things being equal. But when you have a price difference of almost half, sumpthin' ain't right. 1. Did the guy who bid on the original specs not know how to bid a public job? 2. Or was the job he bid not the same job the other guy bid? 3. And is it possible that the consultants so screwed up the original specs, that contractor #1 over bid because they weren't clear? If Contractor #2 priced the same specs, as VcComm claims, did he do it on different terms? Yes, that's very possible. VcComm doesn't show the slightest interest in clearing the air.
See where the public who's paying for this project ends up? In the dark.
Jilted Contractor #1 is understandably pissed. So much so, that he got the state contractors' association to file a complaint with the Idaho Attorney General. If he gets a favorable result from the AG, it encourages him to sue. If he wins, guess who pays that bill (hint: not the individual county commissioners). Where is the public? In the dark...and on the hook.
I suppose any citizen could demand to see the original specs and the drawings that were filed by contractor #2 and try to figure it out themselves. Believe me, that kind of 'transparency' is typical of public agencies. It's like the doc saying "here are your X-rays, your thoughts?"
Here's what the public does know. There's $200,000 difference in two bids. Contractor #1 is a known, licensed builder who has done work for McCity. "He’s really good at keeping costs down," complimented a city official in a 2023 news story. Does that sound like a guy who would over bid a job by almost double out of incompetence? Contractor #1 does not have any personal tie to any commission member, so far as the public knows. Contractor #2 was hand picked by a member of the commission because of a long-standing professional relationship. That is on the record.
VcComm has a case of HAL Syndrome. In the post that contained my fact-stumble, I exposed an accelerating tendency of government bodies to appoint themselves as moral authorities to the public, much as the super-computer HAL did in the sci-fi classic 2001: A Space Odyssey. Competitive bidding practice was instituted to protect the public from Cronyism and Corruption. But warding off the two Cs becomes secondary to The Mission, once our local HALs bead into what The Mission is.
Impossible? No. Impractical? Hardly. Not even inconvenient
VcComm claims the conditions in a section of the current courthouse are so dire that they didn't have a nano-second to spare to evacuate employees to the Annex. That's why they dished on Contractor #1. They didn't have time for public process or explanation. VcComm can only bypass standard public process if they can demonstrate that obtaining bids would be 'impossible' or 'impractical'. Do you, dear readers, think they can make any of those claims stick in court? Me neither.
Public works bidding law has an 'informal' option with no time-consuming public notice requirement and expedited response times. It's known as Category B in the trade. On July 1, the project cost cap rose to $250,000. If VcComm had chosen the informal option starting the day they opened the original $451K bid (see a legal timeline I calculated in Links) that allows for the consultant to correct its fallacies, get bids back and award a contract only two weeks after they awarded this bogus one. Contractors #1 and #2 could both have bid. VcComm only had to invite a third bidder. Getting three bids back is not required. They were guaranteed at least one bid receipt. No lawsuits. No secrecy. No defensible loss in expediency.
Best of all, Contractor #1 would have had a fair shot at recouping the investment he made bidding a bungled spec...instead of being left holding the cement bag and the prospect of suing. So it's a mystery why a public body that is far less of a stranger to bidding process than I was before two weeks ago, decided to hang the public out to dry with this unnecessary, risky approach. Did VcComm take the loophole because they didn't like Contractor #1 and wanted to find a way to get their guy in there? Now THAT would be illegal. With VcComm's mouth clamped shut, citing "pending litigation" (their own fault), the possible speculation is endless—and warranted. Only they can set the record straight.
And They. Ain't. Sayin'.
Links/Downloads
Scroll down for the Afterthoughts after these commercial breaks:
Would you like to a)tell me how wonderful I am b)tell me to crawl back where I came from c)tell me about your shish kabab recipe? (no pictures please, we do enough skewering around here in the interrogatory sense). Write me a private email! Send your bribe observations to: tomigrote@substack.com. I promise I won't out your trash talk to your church congregation.
Know somebody who would be interested in this Substack? If you got this as an email, forward it. Tell the recipient to look for links within the post to subscribe for free. Or say something about it on social media and include the web address tomigrote.substack.com. Thanks so much for helping spread the word about this completely volunteer effort.
Afterthoughts, Observations and Authentications
• Schmoe or saint? I don't know anything about Contractor #1 other than what I could find on the public record. Fair public policy should not factor in popularity. That's especially reassuring to somebody like me.
• All statutes are poorly written. It's almost as if statute writers in the Legislative Services Office take special training on bad language crafting. I wonder if there are professional awards for Most Obtuse, Most Convoluted, etc. But most are still clear enough for laypeople to see basically what the law's intent is. Not IC 67-2805: Procurement of Public Works Construction. It's like the legislature put all the paragraphs on separate index cards, threw them up in the air and wrote the statute in the order that they picked them up. It's so bad that the Idaho State Bar Association and the Idaho General Contractors Association each wrote a manual to spare their members my agony: the 'credibility-robbing misread'. Of course, I didn't find out that the manuals existed until after I shot my mouth off. Live. Learn. Even past age 70.
—and figuring out what option belongs to what category in 67-2805 is like playing pin the tail on the donkey. The statute lays out two categories, but really there are three...and option three looks like it belongs under option two. And one clause that really belongs to two is under option #1...
• I hope eventually to write enough on real-time adventures in public contracting and the laws that ‘govern’ it to spin off a little Layman's Guide. Public Construction takes no back seat to Big Finance and Big Politics in the sleezy underground world of vacuuming up public funds. It was through an experienced reader that I learned about 'change orders.' This is a sweet little hustle contractors use to get the low bid award. They bid cheap but build in generous allowances for the inevitable changes in plan. It's part of the reason public construction projects these days always end up in the stratosphere relative to the estimated cost. Is this the technique Contractor #2 used to get $200,000 under Contractor #1? Probably not brazenly, but...possible. Wanna bet me that $250,000 isn't the finished cost of the Annex Project?
• This isn't the first time I have refused to sit still for the 'too long timeline' excuse. It's astounding the speed at which a polity can move if it wants to. Boards gamble so often on the public's low knowledge and diffidence to the laws they are governed by. They get so used to the lack of oversight, even the formerly conscientious are seduced by impunity. The result is seeing public process as an expendable nuisance (let's just get this done, the shortcut is a justifiable trade-off nobody will notice) or an implicit trust in staff (laziness). It's a syndrome everybody falls into when the focus is on the narrow picture in front and not the broader public purpose. People who are called to jury duty watch a truly inspiring video reminding them of the vital role they may have to play if they are selected. I always thought our public officials would benefit from regular exposure to a similar pep talk.
• Tomi can play hurt. This post proudly brought to you by my left hand and right thumb. I broke my right hand hiking last week. Shout out to Maya and Peter at the CMC Urgent Care Clinic in Donnelly and the St. Luke's orthopedic and surgical staff for an astounding turnaround. I hold the skilled and cheerful health care workers in our communities in highest regard. They aren't all cheerful and they aren't all highly skilled in my experience. But I got the cream this go-round. It brought back many memories of my "the newspaper must go on" days. I put out papers with a broken leg propped on the desk along with my keyboard, in a recliner with a broken rib and the keyboard tilted on my lower stomach. I've produced some quite exotic classified sections under opioids after back surgery. And yet none of that was as challenging as typing has been without my dominant hand. It sucks!
Sorry to hear about your busted hand Tomi….sounds like no fun at all! Nice job in spite of that on this piece. It looks straight forward enough to provide a lesson learned for VcComm. In my opinion as a life long construction dude, this thing really stinks. It will be interesting to see what the final cost of this project is.
I think you nailed it with this statement, “Public Construction takes no back seat to Big Finance and Big Politics in the sleezy underground world of vacuuming up public funds.”