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Construction bidding dispute headed back to court

When Middleton officials stipulated that only members of a particular trade group could build a proposed public works garage using a method known as tilt-up concrete, the city limited the number of companies that could compete for the work.

But the exclusion was not as great as has been portrayed by the Associated General Contractors of Wisconsin, which is suing the city over a decision to not award the project to the lowest bidder. In legal filings, the AGC has raised doubts about a bid provision specifying that any contractor hired to do tilt-up concrete work on the project be a member of the Tilt-Up Concrete Association.

The AGC has pointed out that the membership page of the Tilt-Up Concrete Association’s website lists only one contractor that has its headquarters in Wisconsin: Madison-based Newcomb Construction Co. And it was Newcomb Construction that won the contract for the public works building, even though Fond du Lac-based C.D. Smith Construction Inc. submitted a lower bid that called for the structure to have steel walls.

In legal filings, the AGC, which lists C.D. Smith as a member, has argued that the requirement concerning the Tilt-Up Concrete Association eliminated competition and essentially ensured that only the one company could bid on the tilt-up concrete alternative.

But Mitch Bloomquist, managing director of the Tilt-Up Concrete Association, said the website is not up to date and at least one other contractor with headquarters in Wisconsin is a member: Campbellsport-based C.E. Doyle LLC. He also said nothing prevents out-of-state companies from doing tilt-up work in Wisconsin.

There also are former association members in Wisconsin that could rejoin if they started paying dues again, Bloomquist said. Among them is Plain-based Kraemer Brothers LLC, which is an AGC of Wisconsin member and was one of nine companies to bid on the proposed Middleton public works building.

Kraemer Brothers was a member of the tilt-up association from 2001 to 2007, Bloomquist said. Calls to Kraemer Brothers and AGC of Wisconsin representatives were not immediately returned Thursday afternoon.

Questions over whether Middleton officials undermined the purpose of public-bidding laws are at the heart of the AGC’s lawsuit against the city. AGC officials pointed out Newcomb Construction’s bid of nearly $9.4 million exceeded C.D. Smith’s by about $59,000.

City officials have responded in legal filings by contending that they chose Newcomb Construction because it was the only company to respond to an option in the bid specifications that allowed for the use of tilt-up concrete. Because no other companies bid on that option, city officials have contended that Newcomb Construction was the lowest bidder by default, at least for that method of construction.

Cari Anne Renlund, a lawyer for Newcomb Construction, said the case is about how much discretion city officials have when awarding construction contracts.

“Does the city of Middleton get to select the kind of project Middleton wants for its municipality?” she said. “Or do the aggrieved bidders get to choose?”

AGC representatives, according to court documents, have responded by arguing that the real purpose of bidding laws is to ensure that taxpayers get the best deal possible. They also contended that Newcomb Construction did not meet a contractual requirement to submit a base bid calling for the project to be built using steel walls. The eight other companies that bid on the project, six of which are AGC of Wisconsin members, submitted the required base bid.

The construction of the building is on hold while Dane County Judge Peter Anderson decides if a temporary restraining order placed on the project March 19 should be made permanent. A hearing on that matter took place Monday in Anderson’s courtroom, and city officials had expressed hope the dispute would be resolved that day.

But the judge postponed the decision to May 5, saying he wanted more time to review the stacks of documents that have been submitted in the case.

Middleton officials have said they are under pressure to get the project underway, mainly because the city has a contract with Meriter Health Services that requires the city vacate its current public works building by March 1. Matt Fleming, a lawyer representing the city, said Middleton officials are reaching the point when they won’t have enough time to meet that deadline.

City officials have defended their choosing of the tilt-up concrete option by saying it will produce a more durable and energy-efficient building. As the name suggests, the building method involves taking concrete slabs and tilting them up into position at a construction site.

Bloomquist said tilt-up concrete is popular in many southern states but remains uncommon in Wisconsin.

“Newcomb has been around for a long time,” he said. “Why other contractors haven’t picked up on it, I don’t know.”

About Dan Shaw, [email protected]

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at [email protected] or at 414-225-1807.

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