The Park Project was bid on January 13, 1998. Upchurch Construction was low. Bear Brothers was second. Bear claimed the Upchurch bid was unethical and therefore illegal. A month-long fracas commenced.
As background, you need to understand that the “wet trades” (i.e., masonry, hard tile, concrete finishing, plaster, etc.) in Montgomery were (and still are) a disaster, that work having been largely relinquished to the minorities. The masonry work on both the RSA Union and Tower was a tragedy, as has been mentioned earlier. Because a park monument could hardly have inferior brick work, John Gandy and I determined that we should restrict that trade to reputable masonry subcontractors from other cities. Thus our bids for the park were taken with the restriction that the masonry work had to be done by one of the five subcontractors we listed, none of whom were from the Montgomery area.
In that connection, there was the problem that the project masonry work was small but complex, and would be at least 100 miles from any of the five we named. There was the dubious honor of being named, but aside from that, none of the masonry contractors wanted the job. Except one.
The one was Masonry Arts of Birmingham which had package-bid the precast concrete erection, the stone work, the sidewalk pavers, and the masonry work. They offered a single price, all or nothing. Masonry Arts thought that theirs was the only masonry bid available from our qualified list, and thus the package quote would give them a free ride on four different trades. During the bid period both Bear and Upchurch struggled to break the Masonry Arts monopoly, but no other approved mason would quote either one. Bear Brothers gave up and used the Masonry Arts price for the four trades. Upchurch, who knew it would be low if they could find a second masonry bid, was determined to outwit Masonry Arts and would not give up.
The Upchurch bid was $2,136,000 and Bear’s bid was $56,000 above that. As required by the State Building Commission rules, both faxed to me their list of major subs within the first hour after submitting their bids. The Upchurch list named Garrett Masonry of Bessemer as masonry subcontractor.
The Masonry Sub
The faxed-in lists of subcontractors were public record and Bear Brothers immediately demanded a copy. “Little Clyde Bear”, as we called him, went ballistic when he saw the Garrett name on the Upchurch list, because David Garrett had refused to give him a price. Clyde called Garrett and demanded an explanation. Taken aback, Garrett denied that he had given anyone a bid. As a result Clyde turned his wrath from Garrett to Upchurch. He called me to claim that, because it named Garrett, the Upchurch bid was fraudulent and therefore invalid. This was an argument that I had never heard before, and my skepticism made Little Clyde even more furious.
It seems that Garrett had told Upchurch that he would not bid the job, but at considerable urging, agreed to do the work if Upchurch was low bidder and was awarded the contract. Based on that understanding, John Merijanian, the Upchurch project manager, took off the masonry work and prepared his own masonry bid. I was grateful that someone had the gumption to break the Masonry Arts monopoly, and took the position that our bidding terms only mandated who must do the work, and included no mandate as to who actually turned in a bid price.
In a rage at my refusal to reject the Upchurch bid, Clyde Bear turned to Ron Blount, RSA’s construction representative, whom he had befriended on the RSA’s Hunt Childcare job. Apparently Ron had already developed an animosity toward Upchurch, and he took the Bear position. In a totally outrageous step, Blount called David Garrett, accused him of unethical bidding and virtually threatened the man. Ron and I became antagonists over the issue and our already strained relationship became even more timorous. Yours truly took the position that performance of work by a prequalified sub was the only requirement of our bid. Ron vehemently disagreed.
To resolve our dispute, I suggested that we take the matter to the State Building Commission for adjudication. I intimated that I would abide by the Building Commission’s ruling, and Ron reluctantly agreed. The meeting took place on January 29th, and the Building Commission Director ruled that I had made the correct interpretation. Now Ron Blount was furious. To assuage Ron’s feelings, the Building Commission Director and I agreed that, in view of assertions by Clyde Bear, Upchurch should show evidence of Garrett’s willingness to do the work before the contract could be executed. Upchurch was delighted with the outcome of the meeting.
Ron Blount knew he had been defeated, but would concede to an Upchurch award only if I would arrange a meeting for him and me with Ken Upchurch and John Merijanian to “clear the air”. The meeting was held in PH&J’s conference room and was as ugly a scene as I ever attended. Ron was abusive and arrogant as he castigated the Upchurch pair over the affair. Ken and John sat there and endured the punishment, both of them hoping that this would help Ron Blount get over his defeat. I just sat there appalled at the behavior of my clients’ representative. Later I called Ken to apologize for Ron’s unwarranted outburst.
Award To Bear Brothers?
Alas! When Merijanian contacted David Garrett to secure the necessary commitment, Garrett had changed his mind and now refused the job being handed to him on a silver platter. It seems that his competitor, Masonry Arts, had made ugly calls and had pressured other Birmingham contractors to harass Garrett. All that, plus the call from Ron Blount, had proved to be too much for the mild-mannered Garrett. A dejected Merijanian called me and reported the development. I agreed to give him a few more days to come up with yet another acceptable mason.
Ron Blount was delighted when I relayed the news of the Garrett refusal. He said the job should now be awarded to Bear Brothers. I appraised Ron of my earlier commitment to Upchurch giving them a final few days to cure their problem, and declared that in good conscience, I could not recommend an award to Bear Brothers simply on the strength of Garrett’s refusal. “After all,” I reminded Ron, “the Building Commission rule to list subs was instigated only to protect subs against bid-shopping–the exact opposite of what we have here. “In fact,” I continued, “we rarely know which subs bid a job; we only know who performs the work.” After a stony silence from Ron, I blurted, “I will prepare the contracts for a Bear award only if you, as RSA representative, direct me to do it!” Ron swelled up and said, “Then I hereby direct you to do it.”
As soon as Ron left I called Merijanian to give him the bad news. Merijanian relayed the news to Ken Upchurch who took his turn to become furious. The two of them rushed to my office and threatened to sue Ron Blount for interfering with their business. The situation was deteriorating.
On February 16, the contract forms went out from PH&J to Bear for signature and attachment of performance bonds. Two days later Ron presented them to Dr. Bronner for his execution. Because the award was to other than the low bidder, Bronner smelled a rat and told Ron that the RSA would hold a hearing on the matter.
Within a few days, Upchurch managed to secure a commitment from Pyramid Masonry Contractors of Atlanta, one of the five subs which we had originally listed. Lord knows what they had to agree to pay Pyramid to get them to promise to come to Montgomery for such a small amount of work. With that flank covered, Upchurch then employed Attorney Bill Coleman, who wanders in and out of these chronicles like a bad penny. Upchurch was ready for a fight.
The formal hearing was conducted on February 24th by the RSA’s General Counsel, Bill Stephens. However, as it turned out, the day before the inquiry held almost as much intrigue as the hearing itself. On the eve of the proceeding, I received eight separate phone calls from the various principals in the drama.
The morning of the 23rd began with a call from Stedmann McCollough, Director of the State Building Commission. Sted said he had been invited by Bill Coleman to attend and testify as to his earlier ruling to Ron and myself over this matter. Sted had lost his notes and asked the date of our meeting and what he had ruled. I was astounded by the request, but well able to remind him.
A short time later I received a call from Ron Blount who reported that, in view of the threat from Ken Upchurch, he had hired an attorney. Blount was like an enraged bull that had been cornered. He went on to say that he felt the RSA hearing was an affront to him and that he would not attend. That conversation left me flabbergasted.
Next was a call from Bill Stephens who asked where in the construction contract did it say that he must be the arbitrator. I cited the pertinent paragraphs and agreed to provide him with the Building Commission’s rules for dispute resolution.
My fourth call was from Little Clyde Bear, who reported that he had hired lawyer Tabor Novak to represent Bear Brothers, and further that Ron Blount had invited them to attend the hearing. You should recall that Novak, who represented PH&J in the mid-80’s, was no favorite of mine.
After lunch Bill Stephens called again, this time to report that Ron Blount was still trying to coerce Bronner into signing the Bear contract. That action had infuriated Stephens who had advised Dr. Bronner, “Hell no, do not sign anything until after the hearing”. This was shaping up to be an absolutely enthralling day.
A few minutes later David Atkins, PH&J’s contract specialist, came to my office to report a call from Little Clyde Bear asking where was his contract executed by Dr. Bronner. Collaboration between Ron and Bear was written all over this maneuver.
Then Bill Stephens–who was to conduct the RSA hearing–called a third time to ask me if there was any reason that Bear and Novak should not attend. Stephens had just found out that the Upchurch lawyer had invited Building Commission Director McCollough to attend and he was miffed over that usurpation of his authority. “Well,” I replied, “Upchurch and their lawyer will surely be there and Bear should be also. Why not Sted McCollough?”
Around 3:00 PM, Sted McCollough called back to review the testimony he was going to offer on the following day, going to great pains to insure that he would not offend Ron Blount. “Won’t make any difference,” I reported, “Ron has refused to attend.” That news astounded the Building Commission Director. After a few gasps of disbelief, he asked me what I had learned from all this. In reply, I told him that I had learned that my mouth was too big and that I should strive to keep it shut.
The Day of The Hearing
The hearing was almost anticlimactic. Everyone there got to speak his piece, but with Ron Blount absent, most of the fire went out of the controversy. Bear seemed to give up on its spurious argument that the Upchurch bid was illegal, and instead their attorney Novak advanced the position that my letter to Bear (the one Blount directed me to write) giving notice of award to them did, in fact, constitute an award.
The meeting adjourned and the sullen participants filed out. Everyone in attendance was sure that Bill Stephens would rule against them. A few hours later, Stephens called me to report his finding and to request that new contracts be prepared naming Upchurch as general contractor.
I was jubilant, feeling that I had been vindicated a second time. Two days later the new contracts were complete and executed by Ken Upchurch, and delivered to Ron Blount’s desk for processing by RSA. Still seething, Ron refused to apply his routine signature indicating that the documents were in proper order. The papers went on to David Bronner who signed them anyway. Park construction was finally underway, but who knew what vengeance Ron Blount would try to extract?
On March 9th, two weeks after the hearing, Ron Blount, Ken Upchurch and I met in PH&J’s office for the prescribed pre-construction conference. Ken was conciliatory. Ron slapped a tape recorder on the table and launched as ugly a tirade as I had ever heard him utter. He almost trembled as he spoke from typewritten notes, proclaiming that Ken was unethical, that he disliked him, and that he, Ron, would not help him during construction. His words were an obvious threat.
“Little Clyde” Bear and his project manager, Rush Stallings, were also sore losers, and proceeded to bad-mouth PH&J (yours truly in particular) all over town. For two months I received call after call from friends in the industry reporting the ugly and defaming things being said by the Bear pair. It was painful, because young Stallings was the son of one of my wife’s best friends. And especially painful, because I hated to end 45 years of good relations with Bear Brothers Construction on such a sour note.
-Charles Humphries (“Peril and Intrigue Within Architecture”)