O’Donnell lawsuits cloud bidding eligibility

By Marie Rohde and Joe Lanane

As Milwaukee County prepares to spend $6.6 million to repair the O’Donnell Park garage, questions are emerging as to whether the county should — or can — hire contractors involved in the original project.

Fifteen-year-old Jared Kellner was killed and others were injured when a 13 1/2-ton decorative concrete panel dropped from the outer wall of the garage June 24. The lawsuits filed by Kellner’s family and others injured in the accident charge that four contractors were responsible for incident.

Those lawsuits could take years to be resolved.

Jeffrey Beiriger, the executive director for the American Subcontractors Association of Wisconsin Inc., said it would be dangerous to preclude a contractor from project eligibility before the court cases are resolved.

“To say of a contractor, ‘You may have been liable’ may not be good enough to bar them,” Beiriger said.

“There are always two sides to a story. Usually there are four or five. Let’s not race to judgment until we hear all the facts.”

But Mordecai Lee, a University of Wisconsin-Milwaukee political science professor specializing in ethics and government, said Milwaukee County could face problems if one of the four contractors named in the lawsuits were to bid on and win the work to fix the troubled garage.

O’Donnell Park Parking Structure Facade Removal, Project No. O114-11415, 910 E. Michigan St., Milwaukee

Good public policy dictates government agencies accept the lowest qualified bid for projects. But most have policies on ethics and conflicts of interest when potential contractors are being sued for past work, Lee said.

Lee said the county should not hire any of the contractors to fix the garage unless they are cleared of the allegations.

“Ethics statements and conflict of law statements are good ideas, but what happens when they bump up against the competitive bid law?” Lee said. “The situation with the O’Donnell Park is a gray zone.”

According to its ordinances, the county has broad authority to reject bidders. The ordinance lets the director of public works reject bids if county lawyers advise it would be in the county’s best interest.

This is not the first time the county has identified a conflict of interest, said Jack Takerian, director of Milwaukee County’s Department of Transportation and Public Works.

“I can’t say I remember one where it was a case that was to this magnitude and something that happened this quick,” he said of O’Donnell. “But from time to time, we’ll have a firm that was involved in a lawsuit that is bidding on work.”

Bids for the construction portion of the O’Donnell Park repairs will be released in the next two weeks, said Greg High, director of the county’s architectural and engineering division.

“As far as bids for construction go, if we become aware one of the contractors is involved in the litigation in that tragedy,” he said, “we’d certainly work with corporation counsel to see if it makes sense to award them that contract.”

Timothy Schoewe, acting Milwaukee County corporation counsel, said he isn’t sure the county can by law unilaterally bar someone from bidding on a contract.

“These are just allegations,” he said.

Beiriger said preventing a contractor from bidding on public work is a complicated process.

“If a governmental agency is going to automatically preclude a contractor from bidding,”  he said, “they have to go through a debarment process and there would be an appeal process.”

Such processes are not used often, Beiriger said, and the public owner would have to prove the contractor’s actions were egregious.

“They’d probably have to show that the contractor knew the work they did was going to be a problem and went ahead and did it anyway,” he said. “Most agencies donít want to go through that while the litigation is still going on.”

The debarment procedure could prejudice the court case, he said.

Of the four contractors named in the lawsuits — Advance Cast Stone Co., Random Lake; J.H. Findorff and Son Inc., Madison; C.D. Smith Construction Inc., Fond du Lac; and Dietz Drafting and Design Inc., Burlington — only Gary Smith, president of C. D. Smith, could be reached. He said his firm is interested in bidding on the repair work.

“Sure, we’d consider it, but we haven’t seen anything advertised yet,” Smith said. “We look at everything that makes sense for our business.”

Lee said the conflict for the accused contractors may be a gray area, but an architectural firm whose design work was barred represents a clear-cut conflict.

Wiss Janney Elstner Associates Inc., Northbrook, Ill., was barred from working on the garage repairs because the firm was hired as an expert witness for the plaintiffs in the lawsuits against the contractors.

“The architect should not be allowed to testify as to what caused the problem,” Lee said, “and then be hired to fix it.”

Roy Wagner, a construction law specialist, said the question of the contractors is more nuanced.

“My suspicion is this would be a unique question, and it would not surprise me if there would be limited (legal) guidance,” Wagner said. “I assume the county will be extra sensitive to the project’s historical criticism.”