An attorney general's opinion released late today (Aug. 5) regarding the use of construction managers at-risk on county projects has left more questions than answers.
Sen. Jake Files, R-Fort Smith, had requested the opinion in June at the request of Sebastian County Justice of the Peace Danny Aldridge, who had questioned whether the county was legally able to use a construction manager at-risk to construct the Ben Geren Aquatics Center, which is a joint project being developed with the city of Fort Smith.
Files asked, "In light of [Gatzke v. Weiss, 375 Ark. 207, 289 S.W.3d 455 (2008)], please offer me an opinion on how construction management contracts are able to be entered into by county government without advertising and selecting on lowest bid or if they are even able to be entered into at all.
"If your opinion is that county government cannot enter into a construction management agreement, what is the remedy for those counties who are entering into those contracts illegally at this time, and what is the remedy for those that have been entered into previously and completed?"
In response, Deputy Attorney General Elisabeth Walker issued an opinion that apparently indicates Sebastian County may use the construction management process to build the water park.
"In response to your first question, therefore, counties are not only authorized, but are required to contract for 'construction management' services without competitive bidding. If a county wishes to procure these professional services, in other words, it must do so by following the procedures outlined in A.C.A. §§ 19-11-802–805, which involve evaluating the entity’s qualifications and negotiating a contract It bears noting, however (as the enclosed opinions also point out), that both the so-called 'public works law' and the Arkansas Constitution require competitive bidding on the construction work. The question whether a county has observed these laws in connection with any particular contract is one of fact, and thus outside the scope of an opinion from this office.
"A response to your second question is unnecessary in light of the foregoing."
Files and County Judge David Hudson were unavailable for comment regarding the opinion. However, Matt Campbell, a former researcher and staff attorney for the Arkansas Supreme Court and an attorney at Pinnacle Law Firm in Little Rock, said it appears from his understanding of the opinion that Sebastian County's use of a construction manager is legal.
"It doesn't tell you it's illegal. Under A.C.A. §§ 19-11-802–805, that whole subsection, the county in theory would have to do a no-bid contract and follow the procedures in that law. But then they throw in there other things that might apply, but that's outside the scope of we're doing here. Based on this opinion, it is not (illegal)."
What may help Sebastian County stay within the letter of the law, Campbell said, was the fact that the county is working through an interlocal agreement with the city of Fort Smith to fund and operate the facility.
"As far as working with the city, that's sort of my guess on how they might be getting around it. If it was just a county project, it would be a bit more straight forward on the constitutional grounds."
Even still, he said the entire opinion may have come out differently had Files asked the question differently.
"Maybe. That's probably why the opinion just says that the rest of it is too fact-intensive to give an opinion on. Had Files written the question much more specific to that project with some details, then they might have been able to force an answer one way or another."
Reached for comment late today, Aldridge said the opinion was too confusing for him to provide a statement on its meaning at this time, but he did say he feels confident he has pushed Hudson and the rest of the Sebastian County Quorum Court toward more transparency.
"The judge had agreed to have a sealed bidding process (for the various project segments), even if we use a construction manager, to be opened in public and adhere to the guidelines that are called for with sealed bids."