Ben Geren Aquatic Park work may go to Flintco

Sebastian County officials have responded to an opinion issued Aug. 5 by the Arkansas Attorney General's office that some believe gave Sebastian County the right to continue on with seeking a construction manager at-risk to manage construction of the Ben Geren Aquatics Center.

Tulsa-based Flintco Constructive Solution may be the company to manage the work.

The county's response was requested in an e-mail sent by Justice of the Peace Danny Aldridge on Aug. 8 after the AG's opinion was initially unclear on whether using a construction manager at-risk was legal or not.

"Dan, the AG's opinion about using a 'Construction manager at risk' seems a little confusing to me," Aldridge wrote to Prosecuting Attorney Dan Shue, who serves as legal counsel to the Sebastian County Quorum Court. "As a member of the Quorum Court I ask that you review the ruling and give me a simple answer to what it says. I would like to see your review and response PRIOR to the next QC meeting. I do not want it dropped on us at that time."

In a letter to Aldridge and County Judge David Hudson, Shue said his understanding of the opinion was that using a construction manager at-risk was legal, within certain parameters.

"From Arkansas Attorney General Opinion 2013-051, we learn two things: (1) 'counties are not only authorized, but are required to contract for "construction management" services without competitive bidding' and (2) 'both the so-called "public works law" [A.C.A. § 22-9-201, et. seq.] and the Arkansas Constitution [Article 19, Section 16] require competitive bidding on the construction work."

In the letter to Aldridge and Hudson, Shue refers to a letter he wrote on May 20 to Hudson, a letter that had not previously been released to the public. In the letter, Shue "alerted" Hudson to the 2008 Arkansas Supreme Court case of Gatzke v. Weiss, which confirmed that competitive bidding was required under Arkansas law, even if a construction manager at-risk was hired for the project.

"Given the above, the Attorney General's Opinion is valid as far as it goes–Sebastian County may hire a construction manager; however, I believe once the construction manager at risk is retained, each of the trade contracts would be subject to the competitive bidding requirements of A.C.A. §22-9-201 et sec. and Article 19, Section 16 of the Arkansas Constitution."

The opinion referenced in the letter was Attorney General Opinion 2012-005, which dealt with the construction of a new county jail to be built in Arkansas. The request for an opinion, made by Rep. John Vines of Hot Springs does not specify which county, though Greene County in far northeast Arkansas did begin a jail expansion project last year using a construction manager.

The opinion, prepared by Deputy Attorney General Elisabeth Walker, specified that using a construction manager was legal as long as the individual sub-contracts were competitively bid.

Aldridge has previously confirmed, as has Hudson, that sealed bids would be used for the various sub-contracted sections of the project.

"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."

With the construction manager at risk now appearing to be legal, the decision regarding who will be hired to oversee construction of the Ben Geren Aquatic Center could be front and center at Tuesday's meetings of the Fort Smith Board of Directors and the Quorum Court.

According to Fort Smith Deputy City Administrator Jeff Dingman, the city and county, who are constructing and operating the aquatic center through an interlocal agreement, are in contract negotiations with Flintco, one of five firms to be interviewed for the construction manager position.

"Really, we haven't sat and really discussed a fee with them. We have a draft of a contract that we haven't even shared with them yet. But even if everything goes smooth, it would take a miracle to basically get it done in a day," Dingman said, adding that if a contract were to be signed either Thursday (Aug. 14) or Friday (Aug. 15), both bodies would be able to vote on the contract on Tuesday (Aug. 20).

Should an agreement not be reached with Flintco, he said the city and the county were prepared to make an offer to Lenexa, Kan.-based Prosser Wilbert Construction.

"Flintco is the one we're negotiating with, but it's not a done deal until it's a done deal,” Dingman said.