Toal skewers County for procurement due process failures, refuses to dismiss case
By RON AIKEN
Throughout the 68 pages of transcripts obtained by Quorum from an April 4 civil court hearing between Richland County/McClam & Associates and Richardson Construction, former South Carolina Supreme Court Chief Justice Jean Toal — now a circuit court judge — repeatedly chided county attorney Ned Nicholson for presenting arguments she characterized at various times as “disingenuous” and “foolish” whose logic “shocks the conscience.”
Toal ruled against the dismissal of the the suit, which was brought by Richardson Construction against the county and McClam & Associates (the highest bidder that won the award) after Richardson’s bid, the lowest, was deemed non-responsive after the initial award for Shop Road Extension project. (Read the history of that troubled procurement process here.) The suit sought a temporary injunction in December against the award, but that motion was denied by Judge DeAndrea Benjamin on Dec. 21. That decision was appealed and remains in appellate court.
By Richland County ordinance, non-winning bidders in solicitations may protest an award decision. That protest is then heard by the County’s procurement director, and appeals of that decision may be taken to the County’s five-member procurement review panel.
When Richardson protested the initial award (immediately rescinded) in October, the County had been without a procurement director following the resignation in May 2016 of former director Cheryl Patrick. The county also did not have (and does not have) a fully constituted review panel featuring representatives spelled out by ordinance as requiring representatives from five specific areas of interest in procurement decisions. Richardson’s argument in its suit was that it had been denied due process because of these factors.
When asked by Toal to explain the charge that Richland County is “denying (Richardson) any legitimate due process because you haven’t got these things in effect,” Nicholson told Toal that the county already had cleared up one of the concerns.
“Your Honor, I can tell the court on behalf of the County there is a procurement director for the County names Curt — Chris Younts. Y-O-U-N-T-S,” Nicholson said.
Nowhere on the Richland County’s website was Yount’s hiring announced, and a Freedom of Information Act by Quorum showed Younts had been hired April 3, one day before the hearing.
“So it wasn’t until after (Richardson) griped about this thing that y’all even got around to appointing a permanent procurement director; is that correct,” Toal asked Nicholson.
“Well, Your Honor, they were… . The procurement, the director position was vacant before they, before this,” Nicholson said.
“Uh huh,” Toal replied. “And it didn’t get appointed until after they raised questions about the absence of a procurement director when (Richland County) argued, ‘Hey, (Richardson) can’t even go to court because (they have) this remedy to exhaust in the County?”
Nicholson attempted to reply but was sharply cut off.
“It’s an empty remedy because (Richland County doesn’t) have a procurement director to appeal to nor (does Richland County have) have a full procurement review panel,” Toal said.
Nicholson said the review panel does have three members, which constitutes a quorum, and thus should be allowed to decide the protest.
“Well, you know, that’s just not acceptable, Mr. Nicholson,” Toal said. “I’m gonna tell you that right now.”
“You’ve got one of the most serious bid controversies that the County has been involved in in a long time. This Jushi plant is a big new investor relocating here, all right, there’s an accelerated timetable, and you needlessly — and I say you, meaning the County — the County needlessly puts in something that could end up being a big legal question about this instead of going ahead and appointing some people to the review panel.
“Politics or nothing else should interfere with putting some people in there to perform these duties; otherwise, you don’t have due process for these people. You’ve got three out of five. (Richardson is) gonna argue if they take this, if they’re not given satisfaction in these proceedings, they’re going to be arguing til the cows come home ‘I had a burden of persuasion that was impossible to meet because I didn’t have a full procurement panel.”
Toal wasn’t done, saying the argument for a quorum as being satisfactory did not constitute an adequate remedy for Richardson.
“That’s the kind of thing that gets people frustrated with local government is they foolishly complicate with needless legal issues things that ought to be pretty easy to deal with,” Toal said. “Why complicate it by deciding whether or not a quorum is satisfactory? Why not go ahead and have a full panel so there’s no question that these people have got a full due process procedure as is provided in the regulations?”
Nicholson said that was a question for County Council to answer, but remained firm.
“Our position is that we have enough (members of the review panel); that three can decide it,” Nicholson said. “That is legally sufficient.”
Toal was not impressed.
“That argument just really is not a persuasive argument to me,” Toal said. “(Richland County has) a big procurement controversy pending and in the face of that they want to rely on some legal technicality about quorums instead of going on and filling out the commission that’s supposed to hear these procurement controversies?”
“That is a foolish, foolish course of action on your client’s part and it’s typical of what happens sometimes in this county that things that seem very clear and easy to do are getting wrapped around the axle and all kinds of legal arguments and proceedings when the practical thing to do would be to simply go on and do the right thing and appoint the panel.
“You’ve got people that decline to act. This is a county of hundreds of thousands of people and there’s not a limited number of people who could fill these positions.”
In her ruling, Toal decided that the civil suit against the county may proceed and that Richardson has a right to due process, a process Toal said the county has not offered Richardson.
“It shocks the conscious to have a process that clearly indicates five people qualified on the basis of different expertises and that’s what (Richland County’s) ordinance very definitely says, and yet the County has not done anything of recent years (to fill the positions),” Toal said. “(The panel has) one person from back in 1993. I don’t even know what the terms of these people are. They’ve got two other people that (Richardson Construction attorney Kathleen McDaniel) can’t tell what their qualification category even is.
“(Richland County isn’t) providing (Richardson) an adequate remedy when you don’t respond (to questions), that the administrator does not give a final ruling, there’s no setting of any hearing on this thing, that’s not — just sitting back and being mum and not communicating when (Judge Benjamin) said the remedy to be pursued is before your procurement panel, that’s not — I mean, you’re putting them in a Catch 22 that I’m not prepared to counter.”
When Nicholson suggested that the County’s administrative process could move forward if Richardson dropped its appeal, Toal snapped back.
“No,” Toal said. “No sir. They’re not required to do that under the law.”
“I don’t think you can box them in because you don’t like it that they filed a lawsuit, and it shocks my conscious to hear it said, ‘Oh, we’ll give them the administrative process but only if they drop this lawsuit. That — there’s something very, very wrong about that.”
Nicholson countered that the appeal process halted the administrative procedure and allowed the County to move forward with McClam regardless of the suit’s outcome.
Toal took exception.
“I find it’s disingenuous, to put it mildly, that the argument is made that, ‘All right, everything stops because of this appeal to the court of appeals’ and yet (Nicholson) also advanced the projection that the only thing (Richardson) can get is damage awards, they cannot get any review of the contract itself, so you go forward with McClam.
“If that is truly your legal position, then it really is very disingenuous to say, ‘Hey, all right, I can go forward with McClam under all circumstances, but (Richardson has) an avenue to get damages for knocking them out as a responsive bidder and there’s nothing in the world about the award to McClam that is interfered with by (Richardson’s) pursuing that, I don’t get that argument.”
Reached Friday, McDaniel was pleased with Toal’s ruling.
“We’re happy that our case remains alive and our appeal will be heard,” McDaniel said.
McDaniel said the issue of fairness and Richland County’s compliance with its own laws was the issue at stake.
“Counties can’t benefit from their own bad acts,” McDaniel said, referring to the county’s inability to fill the positions of director — Younts, in fact, resigned April 28 after just 20 days on the job — and procurement review panel. “Due process is guaranteed by law.”
Reach Aiken at (803) 200-8809. Email him at firstname.lastname@example.org. Follow him on Twitter @RonAiken and @QuorumColumbia and like Quorum on Facebook.