Re: Renewable Water Resources, REWA (recently Western Carolina Regional Sewer Authority), its procurement of construction services for its planned $40 million Piedmont Regional Wastewater Treatment Plant, selecting its source of that procurement without using competitive sealed bidding
In 1925, following a lawsuit about the City polluting Conestee Lake with raw sewage, the General Assembly's Act 362 created Greater Greenville Sewer District as a special purpose district. 85 years later, the Authority has evolved to become REWA, operating in three counties, spending $62 million a year on operations, governed by a Commission of nine Commissioners.
In 1982, the General Assembly enacted § 11-35-50 requiring REWA to adopt a procurement regulation that has the force of law.
In 2008, REWA did so; Section 4-1O4 of that Regulation enables REWA to procure construction services from a construction manager at risk (CMAR). A CMAR is different from a conventional construction contractor. By law, a CMAR is selected by and contracted by negotiation, a subjective process. In the design-bid process, the contract language is prepared prior to receipt of bids and the construction contractor is selected using the competitive sealed bid method, an objective process with price being the only selection criteria from among responsive bids, a significant difference.
Prior to September 5, 2008, REWA issued an undated Request for Qualifications by September 5, 2008 as the initial step to select its source of procurement of the captioned $40 million of construction services from a CMAR, a step permitted by but not required by Section 3-103(2)c.
January 15, 2009, REWA noticed, not in The Greenville News, Request for Qualification 138-1-13-2009 by February 20, 2009.
Section 3-102(2) requires REWA to issue a Request for Proposals to procure CMAR services and Section 3-102(3) requires public notice thereof. REWA failed to satisfy either requirement.
April 7, 2010, 15 months after January 15, 2009, REWA signed an initial 500-page CMAR procurement contract with a Denver firm. That contract requires the CMAR to deliver the plant, not yet fully designed, to REWA by a date not yet established. REWA is to compensate the CMAR by reimbursing its costs plus a fee not yet established, with complex maximums for different segments of the work, the total not to exceed an amount not yet established. If the CMAR's final total bill is less than that amount. REWA expects to somehow receive 60% of the difference. The initial contract contemplates two future amendments; they and additional amendments can change anything in the initial contract.
If REWA procured without issuing and noticing a Request for Proposals as required by its Regulation Section 3-102, that procurement was unlawful. Even if lawful, REWA's use of a CMAR was unwise, unjustifiable, and detrimental to good government and to the free market system.
REWA is likely to defend its CMAR decision, asserting that it saved money. Probably REWA will assert that if it had used the competitive sealed bidding method to select its source of procurement, the work would have cost $X. There can be no basis for $X other than an estimate by REWA, it wanting to reward its friends and punish its enemies.
June 25, 2007, REWA unlawfully procured $7 million of construction services for an office building by negotiation without the required public solicitation.
I suggest that REWA Commissioners are operating a rogue agency.