A Texas-based contractor has filed a lawsuit against the Arkansas State Highway and Transportation Department over the department’s cancellation of a $77.6-million bridge contract for alleged failure to document disadvantaged business enterprise involvement efforts. The department has made a claim against the contractor’s bid bond.
The contractor, Roanoke, Texas-based Johnson Bros. Corp., had in January submitted a very low bid to replace a bridge carrying highway I-40 over the White River between Little Rock and North Little Rock. The second-low bid came in about $40 million higher.
Filed in the Pulaski County circuit court of Arkansas in Little Rock on March 9, Johnson Bros. names as defendants the state's highway commission, the commission members individually and the department's chief engineer. The petition requests judicial review of February administrative decisions that found the contractor's efforts to involve DBEs in the project insufficient, reject the bid, make a claim under the bid bond and ban the contractor from rebidding on the project.
The petition also claims that the highway commission took no action on a petition to review the department's decision and request for injunctive relief.
State officials had conditionally awarded the contract to Johnson Bros. Corp. based on the company’s low bid.
The second-lowest bid, $116.7 million, had submitted by Overland, Kan.-based Massman Construction Co., according to a a report by the Arkansas Democrat-Gazette. The bid information apparently is no longer available on the highway department website listing of other bid tabulations.
According to the Democrate-Gazette’s account of the bids on Jan. 16, the highest of four bids was $198.7 million, submitted by Conti Enterprises Inc., Edison, N.J.
Johnson Bros. President Frank Renda responded in a letter to Arkansas Online arguing that the company was instructed by the department to submit the documentation after discussions over the significant variance between its bid and the highest bid.
Good-Faith DBE Efforts
The department claims that Johnson Bros. was required
to provide documentation of good-faith efforts to obtain minority business participation when bids are submitted, and state officials apparently say that the company submitted those documents more than two weeks later.
The department’s DBE involvement goal for the project was 8%, according to court documents. Johnson Bros. states in the petition that it achieved less than 5% involvement. The petition claims that on February 2 the department's DBE Good Faith Effort Committee determined the contractor's efforts were insufficient. When the contractor submitted the case for administrative reconsideration, it states, the department's chief engineer upheld the original finding, canceled the bid, banned Johnson Bros. from rebidding, and made a claim under the bid bond on February 8.
Johnson Bros. did not respond to ENR's requests for comment.
In a Feb. 13 Arkansas Online article, state highway department spokesperson Danny Straessle states that the project will be rebid and may be re-evaluated to make it more appealing to bidders.
On February 25, Straessle wrote in an email comment to ENR, “It is my understanding there is an ongoing conversation with the contractor and the AHTD at this time has no comment.”
Department officials also state in the February 13 article on Arkasas Online that Johnson Bros. had yet to remit its nearly $4-million proposal guaranty, which the Standard Specifications of Highway Construction state the department may request if the contract awardee does not meet DBE involvement or good faith effort reporting requirements after the bid is accepted. Johnson Bros. argues in its complaint that the bid was never accepted, because the department later announced that all bids for the project were rejected. The complaint includes a request that the court reverse the department's decision and find that it has no right to make a bid bond claim.
No one disputes the need for a new bridge. Approaches to the current structure were covered in water during a record 2011 rainfall, and a few months later the Arkansas Highway Commission authorized its replacement.
According to the U.S. Dept. of Transportation's National Bridge Inventory data, the bridge experiences average daily traffic of 30,000, more than half of which consists of trucks. An April 2014 inspection found that the bridge's structures and deck were in fair condition and met “minimum tolerable limits to be left in place,” but its channel control was deemed to be in poor condition. The bridge is not scour critical, but its status is listed as “structurally deficient.”
