PERRYSBURG — A lawsuit has been filed by an area contractor against the city for passing over the company’s low bid for a fire department renovation project.
The civil suit was filed June 18 by Nick A. Nykulak on behalf of his client, KCS Contracting, against Perrysburg Mayor Tom Mackin, Law Director Kathryn Sandretto and the city.
The suit claims Perrysburg Council should have awarded a Perrysburg Fire Station improvement contract to KCS Contracting, of Holland, as the lowest responsible bidder.
KCS also filed a temporary restraining order on June 18 to halt work on the fire department project until the lawsuit is settled.
The case, originally assigned to the Wood County Common Pleas Court, has been moved the the U.S. District Court on a motion by the defendant, who stated the claim involved a federal question.
Court documents state council based its decision to give the contract to the Lathrop Company “on false assertions and unsubstantiated hearsay.”
In the process of justification of the award, council “failed to conduct an investigation into the financial responsibility of its lowest responsible bidder;” and excluded “KCS from the bidding process based upon speech and discourse protected by the First Amendment to the United States Constitution.”
KCS is attempting to recover the bid and other costs and damages incurred during the bid process together with its lost profits by not being awarding the contract, the documents state. It is also asking the city to pay all costs from the lawsuit, including attorney fees.
At its May 4 meeting, council unanimously awarded the contract for the fire station improvement project to the Lathrop Company, the second lowest bidder, at $205,455. The lowest bid came from KCS Contracting for $185,393.
“We are looking for the lowest and most responsive and responsible bidder. The lowest bidder was, in fact, KCS Contracting. However, when it comes to the most responsible bidder, city council is permitted to look at both finance and past performance, according to the Ohio Revised Code,” Sandretto said at the meeting.
The service committee agreed 3-0 in April to recommend to council it award the contract to Lathrop based on them being “the most responsive and most responsible bidder,” as noted in the committee minutes.
Sandretto had based that determination on credit scores and liens against KCS Contracting.
Keith Michalski, owner of KCS Contracting, addressed council at the May 18 meeting, echoing points also addressed in a bid protest letter from Ross, Brittain and Schonberg, a labor and employment specialists law firm representing KCS. The bid protest letter obtained by the Sentinel-Tribune is dated May 7.
Michalski said that there are no pending or outstanding tax liens against KCS. He did acknowledge four tax liens which were disputed, resolved and released. He indicated that the liens were disputes about incorrect tax amounts assessed by the state.
Council members were provided with photo evidence of alleged workmanship errors found by the inspectors from the City of Toledo on a subcontracting job KCS Contracting did for general contractor Parke Brothers’ Andover Place Apartments project in 2019.
“Having reviewed information regarding KCS Contracting, they are not the most responsive and responsible bidder,” wrote Sandretto, in recommendations to the council.
While the bid was the lowest, it did not include the additional cost of supervision by an inspector, which Sandretto suggested in her legal review would be necessary.
Michalski, in a bid dispute and presentation, prior to the filing of the suit, said that the statement and photos were used out of context.
Council President Jonathon Smith introduced the option of further discussion of the issue during the June 1 council meeting. Councilwoman Deborah Born made a motion to reconsider the award, but it failed to receive a second.
The fire department construction will include interior alteration to dormitory walls, doors, a toilet shower room and an equipment room. The Lathrop Company also built the newest fire station.
Requests for comment were made to Sandretto and the city attorney’s office.