LEWISTON — A superior court judge has ruled that the Lisbon School Department violated state law in awarding a $5 million construction project to the next-lowest bidder rather than the lowest bidder, Landry/French Construction.
On Monday, Justice Nancy Mills issued a restraining order barring Lisbon from awarding the contract to Ledgewood Construction and proceeding with any work on the new gymnasium unless done by Scarborough-based Landry/French.
On Tuesday, company co-owner Kevin French said he had no choice but to go to court after the Lisbon department awarded the contract to the second-lowest bidder. “I would have been crucified by the industry if I backed down on this,” he said, because it “would have set a precedent that, on any public job, you can do whatever you want to do,” referring to Lisbon’s decision not to award the project to the low bidder.
French said the court ruling made it clear that it is “unlawful” for Lisbon to have done what it did, and he was pleased with the decision. But, he said, “the true people who should feel good about this are the taxpayers of Lisbon.”
Lisbon Superintendent Richard Green and French have scheduled a meeting for Thursday to “try and clear the air,” Green said, largely because the “architect and owner’s rep have shared that they’re concerned how (the court challenge) is going to affect the start-up of the project.”
The School Committee on Monday will meet to consider the court order. Green said he would recommend that the committee “not appeal the decision and that we abide by the court’s decision and then issue a contract and then move forward from there.”
He said the committee could choose to accept that recommendation or not, but he hopes for approval so the district can move forward with a contract and schedule a construction kickoff meeting, perhaps as soon as next week.
His recommendation will be that the committee take the base bid from Landry/French to build the gym, at a cost of $4.5 million, and accept that company’s price on the bid’s alternate No. 4, with a zero-dollar deduction for HVAC controls.
He will further recommend that the committee not accept the remaining Landry/French bids on alternates, which include smoke curtains, gymnasium equipment and construction of an alternative traffic pattern at the school. The committee will rebid or renegotiate those additional costs, Green said.
Green said the court process has put construction four weeks behind schedule. Once the contract is awarded, Green said he didn’t expect to have any difficulty working with Landry/French and that “to be honest, the focus is going to be on the architect and the general contractor at this point.” And, he said Landry/French’s “performance and fees and everything else, the change orders, everything is going to be watched pretty closely by the community.”
On Oct. 29, the School Committee awarded the $5 million job to Ledgewood, based in South Portland. Its bid was between $15,300 and $77,500 higher than the Landry/French low bid, depending on the options chosen. French immediately objected by email, and then filed a more formal objection through his attorney, Robert Ruesch. Despite these objections, Lisbon issued a formal notification of contract award to Ledgewood, and Landry/French filed for a temporary restraining order to halt that award.
“We went to court for an injunction to stop the process,” French said, expecting school officials would “come back to the table and discuss the matter with us.”
But the court went further and issued an order awarding the contract to Landry/French, he said.
“I hated to go to this level” to challenge the award in Cumberland County Superior Court, French said. “I feel bad for the taxpayers that they had to go through this and watch it.”
Despite some criticism about his challenge on social media, he’s prepared “to just go ahead and build the job and prove to everyone that this whole thing was unneeded and we will do a heck of a job in the end,” he said. “Everybody is going to be watching this.”
In her ruling, Mills outlined the history of the bid process, noting that Landry/French had “fully complied with defendant School Department’s instructions to bidders,” and that of the seven bids received, Landry/French was the “low, qualified bidder.”
Despite that standing, the School Committee awarded the contract to Ledgewood, based on its understanding that Ledgewood had a “stronger portfolio of experience with school construction” than Landry/French, and that Ledgewood had better “on-time/on-budget references for its recently completed projects” and that Ledgewood and Portland architect Scott Simons enjoyed a better working relationship than Simons had with Landry/French. These impressions were based on a conversation between the school’s business manager, Catherine Messmer, and the architect’s project manager, Ryan Kanteres, among others, but the architect has since distanced itself from these statements.
In her ruling, Mills pointed out that the School Committee’s decision to award the contract to Ledgewood was based “squarely on the opinions of a person (Kanteres) who did not appear before the School Committee and who offered no testimony to the court” during the hearing for a temporary restraining order on Nov. 26.
During that hearing, the School Department and Landry/French each agreed that state law governs the contract award, a law that requires “any contract for the construction, major alteration or repair of school buildings involving a total cost in excess of $250,000 … must be awarded by competitive bids.” Mills wrote that state law also requires that “unless there are valid reasons to the contrary, contracts shall be awarded to the lowest responsible bidder.”
In her order, Mills ruled that since both Landry/French and Ledgewood were qualified bidders on the project and that each had set Dec. 8 as the effective date of their bids, reversing the bid would not delay construction, as the School Department argued it would.
Her ruling dismissed the School Department’s argument that issuing an injunction would overturn a good-faith decision of the School Committee, noting that the request for temporary restraining order did not challenge the character of committee members. Instead, she ruled, “The public’s interest in having defendants (School Department) follow a statute enacted by the Maine Legislature that applies to this contract far exceeds the public’s interest in ratifying a decision of a local School Committee.”
Asked Tuesday whether the court battle would make it more difficult to work with the School Department on what will be a long-term construction project, French said he didn’t think so. “We’re going to go in and act professional and do what we do best and build. I’m hoping we can put this whole situation behind us and act in good faith.”
He added, “What’s the most troubling piece of this whole thing is the comments that we have poor on-time/on-budget completions. That is just so false.” He said that this claim was made based on what were said to be phone calls with references he provided as part of the pre-bid qualification application, but that “not one” of those references was contacted.
He said he’s always had a good relationship with the project architect and with Ledgewood. That there’s any bad blood between the companies, French said, “is a hundred percent false and if Ledgewood was asked, they would say the same thing about us. We’re both good companies.”
Ledgewood Construction declined to participate in the lawsuit to argue that it be awarded the contract, and has declined comment on the contract challenge.
Calls to architect Scott Simons and owner’s representative David Lewis for comment were not returned.
The Lisbon School Committee will meet at 7 p.m. Monday, Dec. 8, at the Town Office to consider the contract and Green’s recommendations.
Editor’s note: This story has been updated to reflect Superintendent Richard Green’s clarification that he made no recommendation to the School Committee on which bidder to award the contract, and to reflect Green’s clarification that it was the architect’s representative who provided an opinion about the working relationship between Scott Simons and Landry/French. Simons disputes that assertion.