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Clock ticking on contruction group’s lawsuit

By: Dan Shaw, [email protected]//May 8, 2014//

Clock ticking on contruction group’s lawsuit

By: Dan Shaw, [email protected]//May 8, 2014//

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Bret Newcomb could forestall further legal action against his company by pushing ahead as quickly as possible with the construction of a Middleton public works building.

But the real motive for his haste, he said Thursday, is to accommodate the city’s schedule. Middleton is under contract with Meriter Health System to vacate the current public works building by March 1.

That schedule was endangered when the Associated General Contractors of Wisconsin filed a lawsuit March 18 questioning city officials’ awarding of the project contract to Newcomb’s family business, Madison-based Newcomb Construction Co. Inc., even though the company had not submitted the lowest bid. The nearly $9.4 million price Newcomb Construction submitted to build a concrete structure, which city officials concluded offered better value to taxpayers, was about $59,000 higher than the low bid for a steel building submitted by Fond du Lac-based C.D. Smith Construction Inc.

Newcomb said he and others on his side in the lawsuit are well aware that Wisconsin case law gives judges the ability to decide that construction on a particular project has advanced enough that ordering a rebid would not be in the best interest of taxpayers, even if bidding laws were violated. Still, he said, his primary motive is to make up for lost time.

In the nearly seven weeks since the lawsuit led to the project’s being placed under a temporary restraining order, Newcomb has been preoccupied with legal matters, he said. Only with a Dane County judge’s lifting of that order Monday has Newcomb been able to concentrate on construction again, he said.

“We are currently working out details with the city to keep the project on schedule,” Newcomb said. “This will be a challenge given the 6 ½-week delay.”

Matt Fleming, a lawyer representing the city of Middleton, said that even though the city’s deadline for vacating its public works building is still many months away, Wisconsin winters leave only so much time for construction.

“You want to take advantage,” Fleming said, “of all the good weather you can get.”

Representatives of the AGC of Wisconsin also are aware that they are running out of time to force the dispute to trial. The association could decide as early as Friday whether to continue or drop the case, said Bob Barker, executive vice president of the organization.

Barker said he is trying to get the trade group’s board to meet as soon as possible to make a decision.

“It has to do with probabilities,” he said. “Have we made our point? Did we get anything out of what we’ve done?”

The AGC did succeed Monday in persuading Dane County Judge Peter Anderson to conclude that the bidding procedures used to award the Middleton contract were “probably unlawful.” Still, Anderson declined to place an injunction on the project, reasoning in part that such a decision would subject Middleton taxpayers to unnecessary harm if his doubts about the city’s bidding methods were proved unfounded at trial.

The ruling eliminated the temporary restraining order and meant Newcomb Construction could resume work on the Middleton structure Tuesday. Newcomb said the company already added nearly $500,000 worth of materials and labor costs to the $514,274 it spent on structural steel and other expenses before the project was placed under the temporary restraining order.

While those new expenditures may be meant to keep the construction on schedule, they also help ensure Newcomb has no reason to fear losing the contract.

“We are happy for the city of Middleton and its taxpayers,” Newcomb said, “that the project has resumed.”

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