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Madison contractor questions legal fees

A construction contractor and the city of Middleton together scored a victory in court over the Associated General Contractors of Wisconsin, but that result cost the company about three times as much.

Bret Newcomb, president of Madison-based Newcomb Construction Co. Inc., likened his company Tuesday to an innocent bystander that got caught up in a bidding-procedure dispute between several members of the AGC of Wisconsin trade group and Middleton officials. Yet, he said, when the dust settled, Newcomb Construction’s legal bill far exceeded the city’s.

Newcomb declined to say exactly how much the law firm DeWitt, Ross & Stevens SC is billing his company. He did confirm, though, that it was about three times the $92,424.83 that another firm, Murphy Desmond SC, charged Middleton for defense work in the same case.

“We both fought the same battle,” Newcomb said. “That’s why we were shocked when ours was three times as high as theirs.”

Newcomb said he is trying to negotiate for lower fees. Calls to the DeWitt, Ross & Stevens lawyers who worked on the case were not immediately returned Tuesday afternoon.

The AGC of Wisconsin sued Middleton and Newcomb Construction on March 18 over city officials’ decision to not award the contract for a proposed public works building to the lowest bidder. Newcomb Construction was chosen even though its bid of about $9.4 million was about $59,000 higher than a bid submitted by Fond du Lac-based C.D. Smith Construction Inc.

Of the nine companies that competed for the contract, C.D. Smith and five others are members of the AGC, and the trade group was allowed to sue on their behalf. The AGC initially persuaded a Dane County circuit judge to place a temporary restraining order on construction of Middleton’s public works building but failed at a later date to get an injunction placed on the project.

In denying the AGC’s request for the injunction, Dane County Judge Peter Anderson concluded that Middleton officials had probably violated public-bidding laws but said he doubted a proper observance of the rules would have produced a different result. Part of the AGC’s complaint had centered on a contract provision requiring companies submit a base bid calling for the construction of a public works building with steel walls.

Newcomb Construction did not fulfill that requirement, but instead was the only company to submit a bid calling for the use of tilt-up concrete, a construction method allowed under alternative contract specifications.

AGC representatives argued that Newcomb Construction’s failure to submit a base bid should have meant it forfeited its ability to win the contract. If the trade group’s members knew their proposals for steel-walled buildings would have to compete against an alternate design, they might also have submitted a bid calling for the use of tilt-up concrete.

Anderson said that argument likely has merit, but that he doubted a proper observance of bidding procedures would have elicited more bids for the alternative design. He cited testimony in which representatives of the AGC member companies said they had never thought a concrete building could come close to competing on price with a steel one.


About Dan Shaw, dshaw@wislawjournal.com

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at dshaw@wislawjournal.com or at 414-225-1807.

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