Bid dispute clouds $7.6M Lottery building project

CHARLESTON, W.Va. — A $7.6 million renovation of the West Virginia Lottery’s headquarters building in Charleston has been put on hold after the agency decided against awarding the construction contract to the company with the lowest bid.

Maynard C. Smith Construction Co. of Charleston filed a complaint in Kanawha Circuit Court against the Lottery Commission and state Purchasing Division last week, seeking to block the state’s decision to award the project to Wiseman Construction Co. Wiseman submitted a bid that was $174,000 higher than MCS Construction’s.

Judge Jennifer Bailey has scheduled a hearing at 8:30 a.m. Thursday to consider MCS Construction’s request for a preliminary injunction. 

“We stand fully by our claims,” MCS lawyer Phil Melick said Wednesday. “The state should be directed to award this contract to MCS Construction, which will save the people of West Virginia $174,000.” 

In March, Lottery officials initially selected MCS Construction for the renovations, but rescinded a proposed contract after Wiseman complained that MCS failed to include references in its bid proposal. 

The state Purchasing Division’s bid instructions require contractors to name three references. MCS Construction acknowledges that it didn’t include any references, but the contractor noted that the state failed to attach a required form — used to submit references — to bid documents.

Three of the six contractors who bid on the Lottery building project did not submit references. Wiseman included a page of references. 

On March 24, the Lottery awarded the project to Wiseman. The agency never checked Wiseman’s references, according to MCS Construction’s complaint.

MCS protested the Lottery’s decision, but state Purchasing Director David Tincher rejected the appeal last week. 

In its complaint, MCS Construction argues that the state should waive the reference requirement. The contractor calls the omission a “minor irregularity,” and says the Lottery should have notified the company about the missing references and allowed MCS to submit the names before awarding the contract.

“[MCS Construction] has a clear legal right to have the contract awarded to it,” MCS lawyer Melick wrote in the complaint.

In response, the Lottery and Purchasing Division say rules are rules: Wiseman followed them, and MCS did not, the agencies assert.

“It is undisputed that [MCS Construction] did not comply with all mandatory requirements,” wrote Kelli Talbot, a senior deputy attorney general who’s representing the state agencies in the dispute. “Clearly, common sense dictates that the state would prefer to award the contract to the lowest bidder. However, the lowest bidder in this case was disqualified.”

Reach Eric Eyre at [email protected], 304-348-4869 or follow @ericeyre on Twitter.