So far I have not seen my brother-in-law on all fours, between all fours. I am told he was a frequent flyer when it came to making trips under the table during meals as a youth. It embarrassed my wife, so much so that it made her want to crawl under a much harder object—a rock—to escape humiliation. However, a bulk of the time Ben was left to ponder the universe under maple, oak, plywood or just plain, hard plastic.
When it comes to the intricacies of under-table shenanigans, good old Uncle Ben can certainly draw on early-life experiences. Still, what the Utah Department of Transportation did would probably make even his jaw drop to the dust-infested landing of a familiar, or not-so-familiar, eatery. UDOT managed to sift $13 million under that sheet of maple, oak, plywood or just plain, hard plastic.
According to Executive Director John Njord, this undocumented settlement was apparently executed to avoid a heated freeze. In the race to win the bid for a $1.1 billion I-15 rebuild project in Utah County, the joint venture of Flatiron/Skanska/Zachry (FSZ) was second to Provo River Constructors. FSZ is claiming UDOT made some adjustments, which prevented the team from landing the gig. So, in an unusual showing of no hard feelings, and to avoid “costly” delays, Njord and UDOT handed FSZ 13 million hard-earned taxpayer reasons not to take the agency to court, even though Njord claimed victory if the issue would have received a few hits from the judicial gavel. The kicker is all this was done without the knowing of Utah Gov. Gary Herbert and the state legislature. Njord later apologized for his lack of communication.
When I heard of what went down I initially wanted to take a chainsaw to this table of dirty contents, but needed some legal expertise. I turned to our monthly law columnist, Larry Caudle.
“I have never seen a monetary settlement of a bid protest and, frankly, I doubt it is legal under the state’s procurement laws,” he said in an e-mail. “It’s been awhile since I had something in Utah and, therefore, I have to look at the relevant statutes.”
So he looked, and a minute later came back with this:
“It looks like it was surely within UDOT’s legal authority to settle the protest in the manner it did. I have never heard of such a settlement. Typically, a department that agrees with the protest will simply cancel the award and re-bid. If it disagrees with the protest, it will deny the protest and fight it.”
So, wait, Njord was confident that the disagreement would end in UDOT’s favor, so why the $13 million slip, and why—even if it was temporary—the secret?
UDOT was perhaps most fearful of that delay the litigation would cause. Certainly, with some material prices being extremely volatile, I could understand a certain level of concern in putting off the project. Then you have the motorists, who could be beyond volatile, applying pressure to relieve the traffic tension in the area. So why not short-list the contractors and re-bid? How much more time would that take? A couple of weeks; perhaps a month?
Many in Utah should be watching the clock in anticipation of a state audit on the matter. However, Senate President Mike Waddoups, who sits on the four-person committee that determines which audits to approve, said that could take the longest of all to execute.
Really? Wasted is $13 million that could have been used on a small, yet much-needed, road, bridge or storm-water project, and the holder of the Great Salt Lake is content to act like nothing happened. If they honored the suspicious, this chain of events would be dressed to the nines.