The state School Building Authority has jettisoned most of its previously proposed overhaul of how construction companies are chosen for the projects it funds, SBA officials say.
SBA board members did finally approve Friday extensive policy changes, including more easily allowing SBA dollars to fund schools with fewer students.
But SBA officials said most of the earlier suggested changes to a key part of the construction company bidding process were removed from the proposals before Friday’s vote.
These changes would have eliminated consideration of things like companies’ references and their years of experience.
Currently, county school systems compete twice a year to persuade the SBA board to fund their proposed school-related projects.
Once the SBA board awards a school system funding — sometimes millions of dollars for building a new school — the school system must advertise that it’s requesting bids from construction companies.
Companies that submit bids say how much they’ll charge to do the work. But the school system doesn’t have to simply award the contract to the company that says it can do it the cheapest.
SBA policy includes “18 points” of consideration, beyond price, that school systems must consider to determine whether companies are qualified for such an important task.
These 18 points include, among other things, years of experience, performance on similar projects, references and recommendations.
The previously proposed bidding changes would have erased the required consideration of those factors, though past performance only on SBA-funded projects would’ve still been considered. Other of the 18 points would have been preserved in different ways.
Following pushback and a legal review from the state Attorney General’s Office, SBA officials recommended Friday to the SBA board keeping 16 of the 18 points.
Board members concurred in a voice vote. Steve Burton was the only clear no, and Chris Morris was the only board member absent.
The two points of consideration that were removed considered a construction company’s “history of compliance with fringe benefit contributions” like health insurance, and whether the company has an apprenticeship program.
“My staff, the field representatives that we have here, could not differentiate between buildings that were built with [companies] with apprenticeship programs or those not having apprenticeship programs,” SBA Executive Director David Roach told the board members Friday. “So we could not assume a correlation between poor performance and a lack of apprenticeship or a lack of fringe benefit contributions.”
Without a lack of correlation, Roach said, those two criteria won’t hold up in court, if challenged. He said Senior Deputy Attorney General Kelli Talbott said that if a consideration can’t be defended, it shouldn’t be retained.
The Attorney General’s Office has in the past declined to share publicly its legal opinion of the proposed policies.
In early June, the SBA posted the entire set of proposed policy changes online for public comment, despite not having completed the legal review. The SBA has no in-house attorney, despite routinely distributing over $50 million annually to school building, renovation and repair projects.
Roach had used a 2015 court case to argue to SBA board members, school superintendents and companies that the 18 points needed changing.
In the case, Kanawha Circuit Court Judge Jennifer Bailey overruled state employees’ earlier choice to throw out the lowest-cost bid on a West Virginia Lottery Building renovation project.
The state workers had said the lowest-cost company didn’t follow the bidding instruction to provide references, but the Lottery’s bid forms didn’t include a section to list references, and state employees never checked the references.
The state Supreme Court agreed with Bailey.
Citing the case, Roach said the 18 points could allow for a contract award decision that is “based upon an ambiguous ‘requirement’ set forth in the bid documents that was of no consequence.”
But in the same case, the Supreme Court rejected arguments that “when specified construction services are sought from licensed, bonded contractors, an agency must make the award to the low cost bidder.”
The justices noted state law instead favors the “lowest [cost] qualified responsible bidder,” and “responsible” means having the “skill, judgment, and integrity” and “financial resources” needed to get the job done.
“I’m past that case,” Roach said Friday.
“Originally,” he said, “we were trying to be very objective, and we felt [the 18 points] were very subjective and we felt — maybe through our lack of knowledge — but we thought in a court of law that subjective material is more difficult to defend, more loopholes, more avenues to not get what you want, and we thought they weren’t critical.”
After the legal review, Roach said “we put back in what we could defend.”
Now, Roach said the SBA will move forward with seeking legislators’ approval for yet-unspecified new rules to help the SBA enforce the new policies.
“The board wants us to be able to debar, give consequences, to poor contractors or poor performance of contractors and architects,” he said.