Suit accuses Seals, Collier of rigging Shop Road bidding process ‘to line the pockets’ of favored contractors
By RON AIKEN
Richland County Administrator Gerald Seals, penny tax procurement director Dale Collier and former County Transportation Director Rob Perry conspired with two separate non-compliant vendors to steer subcontracting work on a $20 million-plus penny tax project to the minority firm Taylor Brothers Construction, Inc., and in the process cost taxpayers $3 million more than was necessary, unnecessarily delayed a project critical to the county’s economic future and willfully contradicted the county’s governing procurement ordinances to support favored contractors, civil court documents filed May 10 on behalf of Richardson Construction allege.
Richardson’s newly amended complaint, originally filed in December, expands the list of defendants to include Taylor Brothers along with Richland County and McClam and Associates and includes more than 300 pages of documents, letters and emails to support its claim of a conspiracy (links included at bottom of article).
“Richland County, operating by and through Gerald Seals and Dale Collier, among others, conspired with officers and representatives of (C.R.) Jackson, Taylor Brothers, and McClam to rig the Richland County bidding process for the Shop Road project in an effort to line the pockets of these companies — primarily Taylor Brothers and McClam — to the exclusion of Richardson Construction,” the suit reads.
This was accomplished, the suit alleges, by
- allowing C.R. Jackson to amend its bid and increase its bid price after bids were opened and made public;
- allowing C.R. Jackson to correct “substantive deficiencies” in its bid after bids were opened;
- steering the Shop Road project to a bidder that included Taylor Brothers Construction;
- refusing to allow Richardson Construction to correct a “minor scrivener’s error”;
- awarding McClam the contract even though McClam’s bid not meet DBE/SLBE requirements;
- applying different procurement standards to Richardson than it did McClam or C.R. Jackson; and
- refusing to comply with requests about the constitution of the procurement review panel and obfuscating due process with unnecessary administrative delays.
The allegation of a civil conspiracy between Seals, the County, and Richland PDT (the group that runs the penny tax program) to ensure Taylor Brothers Construction got a piece of the Shop Road Extension project is an explosive new development in a troubled award process critical to the new China Jushi plant. The project already has been delayed months due to mostly self-inflicted setbacks on the part of the County, setbacks that included (among other embarrassing episodes) the recommendation of a vendor whose minority participation requirements were not met when the bids were opened and which only were achieved weeks later through direct collusion between County staff and Taylor Brothers — a practice forbidden by County ordinance and the very reason Seals ruled Richardson’s bid non-responsive in the first place (Seals argued that according to code, bids cannot be altered or corrected after being opened even for something as simple, in Richardson’s case, of writing down the wrong subcontractor’s name on a form).
LOWEST BIDDER, BIGGEST LOSER
Richardson Construction, the lowest bidder on the project at $21.7 million when the bids were opened in September, originally filed suit against the County in December over its disqualification as a responsive bidder after its efforts to avail itself of due process through prescribed County channels — a protest to the County procurement director and an appeal to the procurement review panel — were unsuccessful because the position of procurement director had been unfilled since May 2016 and there was no duly constituted procurement review panel as required by County ordinance.
While Richardson failed to get a temporary injunction issued by Judge DeAndrea Benjamin in late December to halt the award to McClam and work eventually began on the project earlier this year, Richardson’s lawsuit against the County was given fresh life last month when Circuit Court Judge Jean Toal denied the County’s motion to dismiss Richardson’s case and chastised the County vigorously for its failure to provide Richardson due process.
Following that victory in court and after receiving more documents through the discovery process, Richardson attorneys Kathleen McDaniel and Richard Detwiler expanded the suit last Wednesday to allege a civil conspiracy as the reason it was denied the award (of the three bidders, only Richardson had not included Taylor Brothers as a subcontractor).
“On information and belief, this decision (to award McClam) was based on the County’s desire to steer subcontracting business to Taylor Brothers,” the suit alleges. “On its face, Richardson Construction’s bid was more than $1.12 million lower than (C.R.) Jackson’s bid and more than $2.87 million lower than McClam’s bid.
“Nevertheless, as will be shown, Richland County — through various procedural gyrations contrary to its own ordinances and regulations — conspired with McClam and Taylor Brothers to steer the bid to McClam who was by far the highest bidder.”
In the original complaint, Richardson argued the County had not followed its own procurement ordinances in awarding the project to McClam, specifically the requirement that each bidder meet the minimum Disadvantaged Business Enterprise (DBE) and Small and Local Business Enterprise participation requirements (7 percent and 4.3 percent, respectively, of the total award).
After Richardson was immediately ruled non-responsive for inadvertently writing the wrong subcontractor’s name on its bid (a “non-material” mistake, Richardson’s attorneys argue), the offer quickly went to the second-highest bidder C.R. Jackson ($22.8 million) despite Jackson’s bid failing to meet the minimum minority participation levels when it was opened and still failing to meet them even after staff secured the participation of the Taylor Brothers.
Despite hiding those problems from Council and despite Perry misrepresenting a Department of Transportation opinion about the quality of Jackson’s bid to Council in an effort to get Council’s support, the bid had to be pulled the day the vote was to be taken when in yet another blow to the County’s credibility in this process, outright bid fraud was discovered by Richardson Construction while reviewing C.R. Jackson’s packet (Jackson had claimed one of Richardson’s subcontractors as having agreed to perform work for Jackson when they had not). When this was quickly brought to the County’s attention, Seals and staff had no choice but to strike the item from the agenda and disqualify the bid.
“(C.R.) Jackson’s original bid only provided for 1.7 percent SLBE participation — nowhere close to the required 4.37% requirement,” the suit alleges. “Nevertheless, Richland County facilitated directing Jackson’s SLBE work to Taylor Brothers to improve Jackson’s bid post-opening so that it could meet the 4.37% requirement.”
Instead of re-bidding the project due to the problems with two of the three lowest bidders, Seals chose on his own to recommend the only bidder left — McClam and Associates ($24.5M). Though Seals told Council in a letter of recommendation written Dec. 2 and personally in executive session at Council’s meeting Dec. 6 that McClam was the only responsive bidder for the project and therefore should be given the job, bid documents withheld from the public and from Council at the time (and only revealed through a Freedom of Information Act request after Council voted to approve McClam) show that McClam also was non-responsive at the time bids were opened because it counted the same pot of money allocated to the Taylor Brothers twice because Taylor Brothers qualifies as both an SLBE and DB — a practice not allowed by Richland County.
In fact, as Quorum exclusively has reported, when the Taylor Brothers inquired about this before bids were opened, emails between the County Office of Small Business Development director Brenda Parnell and Collier make very clear the same money could not be used to satisfy both DBE and SLBE categories.
“Brenda Parnell’s statement made before bid opening that one subcontractor’s work cannot (emphasis theirs) be used to satisfy both the SLBE and DBE requirements is consistent with the Richland County Procurement Code,” the suit states. “Gerald Seals’ letter of December 2, 2016 makes it clear that the ‘fix’ was in to find a way to direct as much work as possible to Taylor Brothers.”
Because of the alleged complicity, Richardson is seeking damages from each.
“This conspiracy by and among Richland County and its officials, (C.R.) Jackson, McClam, and Taylor Brothers was intended to and, in fact, has caused injury and damage to Richardson Construction, as well as to the taxpayers of Richland County,” the suit reads. “On information and belief, the actions of these Defendants were wilful and wanton, entitling Richardson Construction to an award of punitive damages against McClam and Taylor Brothers.
“For itself, Richardson Construction is informed and believes that it is entitled to judgment against the County, McClam and Taylor Brothers and an award of special damages including lost profits and consequential damages, together with punitive damages to be assessed against McClam and Taylor Brothers, all in amounts to be determined by a jury.”
No hearing of the case has yet been set. An appeal of Judge Benjamin’s denial of Richardson’s temporary injunction to stop work in December remains unheard but alive in appellate court.
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.