LISBON — The Lisbon School Department last week awarded a multimillion-dollar construction project to a company that was not the lowest bidder.

Now that lowest bidder may be headed to court to stop the project.

Superintendent Richard Green acknowledged the chosen construction company will cost the school system more — between $15,300 and $77,500. But he and School Committee members like the relationship that company has with the project’s architect.

The lowest-but-losing bidder believes school officials are breaking state law by ignoring the competitive bid process they set up and going instead with a construction company just because they like it better.

“This isn’t just about this particular job we’re bidding. This is about the industry and what it’s setting for a precedent for the industry,” said Kevin French, co-owner of Landry/French Construction.

At issue is a contract to build an addition onto the Lisbon High School gym and renovate the school’s locker rooms, a project that had been in discussion for decades. Voters in June approved spending $5.7 million in local funds to pay for it. 

Soon after that vote, the school system began soliciting construction bids. It pre-qualified bidders, allowing companies to bid only if they met the school system’s requirements. Seven companies were pre-qualified and made offers.

Landry/French had the lowest base bid at $4.49 million, $75,000 less than the next-lowest bidder, Ledgewood Construction in South Portland.

Landry/French was also the lowest bidder on a series of seven alternative plans that included project extras, including scoreboards, gym equipment and the creation of a new traffic pattern. Depending on the alternative plan chosen, Landry/French was between $15,300 and $77,500 lower than the next-lowest bidder, Ledgewood.

No alternative plan has been chosen, but Green said a new traffic pattern was important to the School Committee and would definitely be part of the project. On the three alternative plans that included the traffic pattern, Landry/French was between $15,300 and $18,500 lower than Ledgewood.

Normally, school systems and other public entities choose the lowest bidder, but on Oct. 29, the project’s architectural firm, Scott Simons Architects of Portland, emailed the bidders to tell them school officials had chosen Ledgewood.

French was shocked.

He believes state law required that public schools award significant construction projects to the lowest bidder, and the school system’s own bidding instructions said it planned to award the contract that way unless there was a problem with the bid.

French knew there was no problem with the bid — he’d submitted and signed everything as required and his bid was under the budget approved by voters. And since the school system pre-qualified all of the bidders, ensuring that everyone met the same requirements, he believed there was no problem with his company.

“This process with Lisbon was to be open and simple. Read the bids and move forward with the construction,” he said.

On Oct. 30, French’s lawyer, A. Robert Ruesch, wrote a letter to the superintendent formally protesting the school system’s decision and asking that the contract award be suspended until it could be reviewed. He said the school system’s choice of Ledgewood suggested the competitive bid process was “secondary to other unspecified considerations, back-room deals or favoritism all at the expense of the taxpayers.”

If the School Department proceeded, Ruesch said, he would seek a court injunction to stop it.

The school system’s lawyer is looking into the situation.

Green, the superintendent, said he’s the one who raised the question of experience with the architect. Both Landry/French and Ledgewood have worked with Scott Simons Architects and seem to have a good relationship with the firm, he said. He asked the architectural firm at the end of the bid process which contractor it had worked with more. The firm said Ledgewood.

Green said he felt the contractor-architect relationship was “critical” and believes it’s worth spending more money for that. School Committee members voted unanimously for Ledgewood on his recommendation.

“They all were qualified,” Green said. “It just so happens the two bids were very close in the actual amount and one of the key factors we looked at was the relationship with the architect.” 

School Committee member George Caron said he voted for Ledgewood because the company worked on the Brunswick police station, and he liked the look of that building. He also was swayed by the fact that Ledgewood and the architect liked each other.

He was surprised anyone protested the School Committee’s decision

“Our policy says in general we have to go with the low bid. Those two words, ‘in general,’ are the key words,” he said. 

Green said the school system is allowed to go with someone other than the lowest bidder because the project is using only local funds. He believes it does not have to abide by the rules that govern state and federal money.

“We wouldn’t be having this conversation because we would have been forced to take the lowest bid,” he said.

French, however, believes the school system is governed by state law regardless of how it’s paying for the project.

A director at the Maine Bureau of General Services, which oversees statutory regulations of the state’s competitive bidding process, agreed.

On advice of counsel, the bureau declined to comment publicly on the situation. In an email to French, Joseph Ostwaldt, director of the division of planning, design and construction, said state law allows no exemptions for locally funded projects. 

“Regardless of any authority purportedly stated in local School Board or Town of Lisbon regulations, the State of Maine Statutes regarding public school projects of this size are the governing requirements,” Ostwaldt wrote in his email. 

The school system has said that its project bid documents also made it clear that Lisbon retained the right to accept or reject any bids. However, Ostwaldt said, the provision is similar to one put in standard state bidding documents, designed only to allow the rejection of all bids in an over-budget project and to resolve bid irregularities.

Ostwaldt’s opinion is not legally binding.

Matt Marks, CEO of Associated General Contractors of Maine, also believes the school system should have accepted the lowest bid. His group represents contractors throughout Maine, though neither Landry/French nor Ledgewood are members.

When the school system pre-qualified bidders, he said, it acknowledged that they all met requirements. If the school system wanted to make work experience a factor, he said, it should have done so then.

“It doesn’t make any sense to me,” Marks said. “Why did you pre-qualify all those folks?”

He believes price should have been the only determining factor after the companies were pre-qualified. If there’s an allowed exception, he said, “it’s very gray.”

Marks called both construction companies very reputable, with a history of working well with a variety of architects and engineers. He was uncomfortable with the school system’s decision to chose a company based on its relationship to another company.

“To me that sends up a whole bunch of red flags,” he said. “I would offer a (word) of caution to any town that that’s a qualification. That certainly is going to send a message to the construction industry that having a relationship, a pre-existing relationship, with an architect is a determining factor, and that shouldn’t be the case.”

French said he knows and likes Ledgewood, and he has no qualms about its ability to do the work. His protest, he said, has nothing to do with the company and everything to do with fairness.

An injunction, he said, is his last resort. He’d rather not go that far.

“We’re hoping the school reconsiders their decision to move forward with the second bidder and that they reverse the decision and do the correct thing,” he said.

A School Committee member said the issue is expected to be brought up at a committee meeting Monday.

A representative for Ledgewood declined to comment on the situation. Scott Simons Architects did not return requests for comment.

This story was edited at 10:10 a.m. Nov. 11 to remove a statement from Kevin French in which he relayed a conversation with Superintendent Richard Green. Green denies the conversation happened. French said he misspoke.

ltice@sunjournal.com