Report says bidder on police lab sought insider information

Company's actions caused state agency to pick rival contractor

May 05, 2004|By Michael Dresser | Michael Dresser,SUN STAFF

After an investigation clouded by accusations of conflict of interest, a state Board of Public Works official has found that a Baltimore contractor may have "compromised the integrity" of the bidding for a contract to build a new state police crime lab in Pikesville.

Warren K. Wright, procurement adviser to the board, reported to General Services Secretary Boyd K. Rutherford in March that Roy Kirby Jr. had made inappropriate attempts to obtain insider information about the state's process of selecting a builder for the long-awaited facility last fall.

The confidential report, obtained by The Sun, formed the basis for Rutherford's decision to throw out a low bid by Kirby's company and to select a rival contractor whose offer was $3.1 million higher. The department plans to ask the board to take the unusual step of awarding the contract today even though Roy Kirby & Sons has a protest pending before the Board of Contract Appeals.

The report details a series of contacts between Kirby and state officials regarding the General Services Department's decision to cancel an earlier round of bidding in which his firm also emerged as the recommended vendor. Wright concluded that Kirby appeared to have been trying to improperly influence the selection process and intimidate state officials.

The report states, however, that Wright was assisted in reaching that conclusion by the General Services Department's general counsel, Julia P. Davis, at a time when Kirby and the agency had several disputes.

William M. Huddles, Kirby's attorney, called Davis' involvement a clear conflict of interest and a violation of state procurement law. "Julia Davis gave Warren Wright bad legal advice," Huddles said. "She was leading him around by the nose telling him what the law was."

Wright's report appears to rely almost entirely on interviews with state officials involved in the procurement process. Nowhere is there any statement indicating that Wright attempted to interview Kirby. Wright said he would have no comment.

Wrongdoing denied

Rutherford yesterday denied there was anything inappropriate about Davis' involvement in the investigation and defended Wright's decision not to seek Kirby's side of the story. He said the department wanted to know only how its selection process might have been affected by Kirby's contacts. "The intent of Kirby was not at issue," Rutherford said.

The secretary said he will urge the board to move forward with the crime lab because of the urgent need for the facility and the rising cost of building materials. He acknowledged that the decision to delay the award last fall was his responsibility and had nothing to do with bidder misconduct.

Rutherford explained that there were "defects in our procurement process."

The secretary contended that his decision was intended to save taxpayers' money, but it will apparently have the opposite effect. Kirby's offer was $21.9 million in the first round of bidding and $20.7 million in the second. The department will urge the board to award the contract today to P. J. Dick of West Mifflin, Pa., for $23.8 million.

Huddles said he would attend the meeting to oppose Rutherford's recommendation and to contest Wright's assertions. The lawyer expressed confidence the appeals board would dismiss Wright's conclusions if Kirby's case is allowed to proceed.

Today's meeting could also raise questions about the conduct of Huddles, an attorney who was Gov. Robert L. Ehrlich Jr.'s choice to head a task force on procurement law reform. Wright wrote that Huddles made comments during a Feb. 17 phone call that seemed to be "a warning or attempt at intimidation."

`Worst possible light'

Huddles called Wright's comment absurd. "There's no question in my mind he put the worst possible light on what I was telling him for the purposes of justifying his conclusion," the lawyer said.

Huddles contends that top General Services officials were biased against Kirby because of payment disputes over an unrelated project.

Wright's probe of Kirby's actions was requested by Rutherford after the contractor left a voice mail for an agency official saying his company was filing a protest over the cancellation of the first round of bidding but would withdraw it if the firm won in the second round.

Phone calls questioned

Kirby said his message was nothing more than a "courtesy call." But Rutherford expressed concern the call may have been inappropriate.

"Some of the phone calls from Kirby or his representatives could be taken as attempts to intimidate or coerce the recipient of the calls," Wright said.

Huddles noted that the contacts Wright criticized took place after Kirby had been recommended by the selection panel and came only after Rutherford declined to present the original contract to the public works board.

"We were attempting to redress a wrong. We weren't attempting to influence the selection process," Huddles said.

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