Another businessman who reached his boiling point over the city’s purchasing practices is suing Augusta’s government.
Tony Ammar filed suit in Richmond County Superior Court on April 14 on behalf of his company, Ammar Construction Co., against the city and its procurement director, Geri Sams.
The city notified Ammar on Sept. 3 that his company was the low bidder on a job to do repairs at the Henry Brigham Center.
Ammar said he started to prepare for the job, obtaining a performance bond — which cost $925 — and lining up workers.
Eight days after he was awarded the bid, Ammar received a letter from Sams that said his bid was deemed “noncompliant.”
Ammar appealed unsuccessfully to Sams, the administrative services committee and Augusta commissioners.
Several other businesses have contended in lawsuits that they’ve faced the same frustration with the city’s procurement practices, particularly over Augusta commissioners’ refusal to waive any violation of the “materiality provision.”
That provision, noted in every bid request, states that a proposal will be thrown out if any error is discovered. That includes everything from a signature in the wrong place to the inability to obtain bonding.
Ammar’s bid was thrown out because of the way he filled out a form that is supposed to be submitted by subcontractors. Ammar had no subcontractors, according to his lawsuit.
“The form, the ‘Subcontractor’s Affidavit,’ does not include any blank lines or other designated place for a general contractor to complete the information (when) there are no subcontractors,” the lawsuit contends.
The repair project was put out for bid again recently. The bid proposals are to be opened May 18; until then it won’t be known whether the city might have saved money by waiving the alleged error in Ammar’s proposal.
LATE LAST MONTH, the city won a federal court battle against three other businesses and the Association for Fair Government. In awarding the city summary judgment, U.S. District Court Judge J. Randal Hall wrote:
“The city should not interpret this decision as endorsing the quality of its procurement operations. In fact, the record in this case suggests otherwise. The court empathizes with the plaintiffs’ understandable frustration with the city’s poor administration of the procurement process.
“However, the court will not, in the words of the Supreme Court, ‘constitutionalize’ these disappointed bidder disputes when the law does not allow such action.”
Thompson Building Wrecking, CSRA Testing and Artistic Design challenged the city’s practices as inconsistent and applied unfairly. The lawsuit also alleged the city is needlessly spending millions of dollars by rejecting the lowest bids over technicalities.
Hall wrote, “The reasonable inference that may be drawn from the evidence is that the city sometimes enforces the materiality provision and sometimes does not. Sometimes the enforcement favors minority-owned companies, and sometimes it favors nonminority-owned companies. In other words, at worst, the city is inconsistent in its application of the materiality provision, regardless of race. The record does not evidence purposeful race discrimination or enforcement based upon any other impermissible purpose.”
Therefore, he found there was no constitutional violation. If there is any issue with due process, that should be decided under state law by a Georgia court, he wrote.
City officials are working on proposed changes to the procurement ordinance to address some aspects of the materiality provision, said Andrew MacKenzie, the acting city general counsel.
Details on providing a local vendor preference are being worked out by the commission’s administrative committee.
The procurement department staff has already taken steps to improve some of the required forms to simplify the paperwork, MacKenzie said. More changes are being worked on to reduce the amount of paperwork and the chance for errors, he said.
There is no question that state law allows a local government to waive technical errors, but Augusta commissioners have chosen not to do so for the sake of consistency, MacKenzie said.
“The balance is tough,” he said.
– by Sandy Hodson, Staff Writer – Wednesday, April 28, 2010 – The Augusta Chronicle – Source URL: http://chronicle.augusta.com/news/government/2010-04-28/builder-sues-city-over-bid-dispute