News

County OKs Ecusta contracts over Lapsley's objections

By Bill Moss, Published: September 20, 2023

Henderson County commissioners voted 4-1 to grant a $10 million contract to construct the first six miles of the Ecusta Trail on Wednesday but not before Commissioner Bill Lapsley vigorously objected to the decision by the chief project engineer and the NCDOT to reject the lowest bid for the job.

The consulting engineers for the trail and the NCDOT recommended the second highest bidder — $250,000 more than the low bidder — after determining that the lowest bidder and one other contractor had failed to comply with the bid solicitation instructions.

Lapsley described the mistake of two of the bidders — not returning all the original bid documents — as "an insignificant issue" not serious enough to warrant disqualification.

"I don't think it's the DOT's job to make this final decision," he said. "This board is."

He criticized other aspects of the bid process, including:

• The bid opening occurred at the offices of the consulting engineers' office in Asheville, which he called "extremely rare." It should have taken place at Henderson County offices, he said.
• The project engineer overstepped his authority, Lapsley said, in rejecting the bids of two contractors as "irregular." "I don't think the engineer had the right to make that decision unilaterally without this board's decision."
• Even if two bids were determined to be noncompliant, "we should have gotten a full report from the engineer with those numbers."
• The "irregularity" that caused two bids to be rejected "did not materially impact their bid."

"So here we are, Henderson County, put in a position of looking the other way and saying, well, you know, do we accept the grant money and go on and do this project and don’t make a hullabaloo over $250,000,” he said. “I just think it's a shame and I don't think it's right. I think the DOT and the way this is handled has put this board in an extremely awkward position."

Lapsley favored rejecting all the bids and rebidding the job, though he acknowledged "more likely than not that's just going to not only stall things but it's going to create some angst between this board and NCDOT and it's going to potentially jeopardize the grant process, and that's not good. None of this is good.”

Joel Seltzer, the lead engineer for the construction job, said the direction to return all the documents was boilerplate common to all DOT bid solicitations and included language warning that failure to do so would disqualify the bidder.

"The instructions for bidding contained within the contract proposal state three times that bidders must return the entire contract proposal with their bids and failure to do so would render their bid as being irregular and therefore not considered," Setzer said his letter to the county recommending the bid award to NHM Constructors Inc. "I consulted with NCDOT officials and determined we were not allowed to consider the two irregular bids."

In defense of the decision by Setzer and the NCDOT, County Engineer Marcus Jones  pointed out that following instructions precisely is an important part of the contractor-owner relationship.

Commissioner Daniel Andreotta said the rules were the rules, and that the DOT engineers had enforced the process as it was laid out for all bidders to read.

“I've seen bids get open in the bid-opening meeting," he said. "They would go through the numbers and they would tend to say at this moment XYZ company is the low bid. We will now go through the bid package, etc. And they tended to hold to the guidelines that were put out. ... You have to ask yourself if, in the bid process, this company or any company on their own decided what they could and didn't have to comply with, would that carry over to when it was time to do $11 million worth of project work? That possibility exists."

Commissioner Michael Edney, an attorney, established by questioning Setzer that the instructions were standard NCDOT boilerplate.

“Black and white reading of it, they didn't comply, whether it's material or whatever,” he said. “I'm gonna accept the recommendation of the professionals that we hired to get us to this point.”

“True, this is grant money,” chair Rebecca McCall said. "But also because of the fact that it's grant money we definitely need to stick to the guidelines of the DOT even though it is a Henderson County project.”

Lapsley also objected to and voted against a contract for the design and engineering of Ecusta Trail West — the segment from the French Broad River to the county line. The engineering firm recommended to guide the work on the western leg is the same as the one that managed the construction bid, Johnson, Mirmiran & Thompson Inc. (JMT).

“I've lost confidence in this project engineer after what we just discussed, and I'm not in a position to support them for this next phase,” Lapsley said.

Commissioners McCall, Edney and Andreotta voted in favor of the county engineer's recommendation.

"I want to see consistency in this project," she said. "I don't want to disrupt the project in any way. We've been 15-plus years talking about this. I want to see it in move along as quickly as possible.”