By David Hedges, Publisher
thetimesrecord.net
The long-delayed Mt. Zion water extension project cleared one hurdle Monday when a judge refused to grant a permanent injunction requested by a contractor unhappy that his bid was not considered.
But another hurdle popped up when a second contractor filed his own request to stop the project until questions about bids are cleared up.
No date has been set for a hearing on that request, filed Friday by Arnoldsburg contractor Ron Lane.
Lane, who said earlier he would not take legal action against the PSD or its members, said he had no choice but to do just that.
"I really didn't want to do it, but they told me I had no other options because (project engineer) Jim Hildreth is an agent of the PSD," Lane said at the conclusion of Monday's hearing, which he attended as an observer.
"I was the low bidder and I was awarded the project not once, but twice," he said.
The $5.2 million project includes two contracts, each one now the subject of court proceedings.
Lane bid on a contract to install 21 miles of water line.
Monday's hearing involved a request for an injunction filed by a bidder on the other contract, to install a 100-000-gallon storage tank.
Attorneys representing Welding Inc. claimed the company's bid for the tank should have been considered during bid opening July 2.
The bid has never been opened because the company failed to send a $25 postage fee to Hildreth.
Five attorneys were on hand for the 90-minute hearing conducted Monday afternoon by Judge David Nibert in Calhoun Circuit Court, including two from the Charleston firm of Bailey and Wyant that represent Welding Inc.
The other bidder, Mid-Atlantic Storage Systems Inc., was represented by Leonard Knee of Bowles Rice McDavid Graff and Love, also of Charleston.
Spencer attorney Tom Whittier represented the Mt. Zion PSD, while Hildreth was represented by Drew Patton of Spencer.
Welding Inc. obtained a temporary injunction the day before Thanksgiving to stop the project until the court could hear the arguments. The courthouse was closed the next two days for Thanksgiving and then for the weekend.
Because the company did not file a $10,000 bond with the court until the following Monday, the Mt. Zion PSD had a special meeting on Saturday night during the Thanksgiving holiday and awarded contracts for the tank to Mid-Atlantic and the water line to the next lowest bidder after Lane, Bruce Allen Inc.
At this week's hearing, attorney Kelly Morgan said her client, Welding Inc., had obtained a copy of the project plans from the W.Va. Contractors Association, and did not need one mailed by Hildreth.
Even so, she said her client submitted a check for the $100 fee for plans required by Hildreth.
At earlier Mt. Zion PSD meetings, Welding Inc. officer Bruce Caswell said Hildreth was the only engineer in the state that required the fee. At Monday's hearing, his attorneys admitted there were a few others who did the same.
Attorneys representing the PSD, Mid-Atlantic and Hildreth claimed the law allowed the engineer to charge the $25 fee. And since it was spelled out in advance, and Welding failed to pay the fee, Hildreth had no choice but to reject the company's bid.
"He (Caswell) did not choose to do things as required in the bid documents," Whittier said.
Whittier said if the project had to be rebid, Hildreth estimated that bids might be $800,000 higher.
He said a loan closing was set for Dec. 21, and if that deadline was not met, bids would expire Dec. 30.
Morgan claimed that Hildreth tried to manipulate the bid process.
"There appears to be other underlying motives as to why Jim Hildreth won't allow certain bidders to bid on his projects," she said. "This is not a one-time isolated incident."
She said Hildreth tried to steer work to companies that use certain subcontractors, including some in which he had a financial interest. She offered a printout from the W.Va. Secretary of State's Web site that listed Hildreth as an officer of one of the companies.
Patton called the allegations against his client "hearsay" and said they should not be considered in the request for an injunction.
He defended Hildreth's decision to reject Caswell's bid.
"The requirements weren't met and his bid was tossed," Patton said. "That's just what happens when you don't meet the legal requirements."
Whittier said there were criminal penalties if the PSD did not follow the bid requirements.
"The district wanted to do things right," he said.
At the end of the hearing, Nibert refused to make the injunction permanent.
"These people need water and that outweighs all other interests in the case," the judge said in making his ruling and dissolving the temporary injunction.
Nibert said Welding Inc. could still pursue a claim against the PSD for damages.
Morgan said after the hearing that a decision had not been made in that regard.
"We'll have to determine that in the future," she said. "There are many factors to look at."
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