Jan. 23—FAIRMONT — Although weather might have broken above freezing after the weekend's snowstorms, for the roughly 700 students at East Fairmont Middle School nothing much has changed.
Class is still held in a building with a broken heating system, with staff forced to use electric heaters and hallway fans doing their best to keep the temperature barely above 60 degrees.
Meanwhile, at the Marion County Courthouse, Hranec Mechanical Corp. and the Marion County Board of Education tussled over the process which awarded the contract to fix the school's heating system to Emcor, a mechanical and electrical construction company.
Hranec's goal was to have the court order the Marion County Board of Education to change its selection for the East Fairmont Middle School's HVAC contract to Hranec. Attorney Edmund J. Rollo represented Hranec, the plaintiff. Kenneth Webb and Peter Markham from the Charleston-based law firm Bowles Rice represented the Board of Education. Two attorneys from Emcor were also present to represent the company.
The case revolved around two key points. The creation and application of a qualitative matrix used to judge contractor submissions and a lawsuit Hranec was a part of against the Jackson County School Board.
Early on Rollo went straight to dominate the narrative. Despite efforts from Webb to object, Rollo was able to successfully frame the use of the matrix as an attempt to place a "thumb on the scale" in favor of Emcor.
"I believed it was a method to eliminate competition," James Decker, a construction administrator for Thrasher, which was hired by the school district to provide consulting on architecture and construction. "It was impossible to do the math, the qualitative scores were so low that mathematically, others were ruled out."
Rollo used testimony from Decker, as well as Hranec's lead estimator, Fred Meucci, to argue that the matrix the school board used to determine who would get the contract was fatally flawed at best, and corrupt at worst.
Meucci testified that the use of the matrix was out of step with the process Hranec typically engages in when working on projects with other clients. Decker also testified that the matrix was one descended from a similar one provided for a project at North Marion High.
He said that the matrix used in that project drew so many complaints and skepticism from contractors that the matrix was changed and updated for the East Fairmont Middle project. He added that during a pre-bid meeting, other interested contractors left the process after learning a matrix would be used again.
However, while Rollo enjoyed early domination over the narrative, Webb sowed the seeds which would let him retake the initiative during his turn to present the school board's case. First, he had to get through cross examining Rollo's witnesses.
The first major crack in Rollo's case was Meucci's error in filling out an important document that was part of the bid process. One of the contractor documents required for the bid asked bidders if they were ever involved or instigated any legal action or lawsuit over a contracted project.
Meucci answered no, despite the fact that Hranec was the plaintiff in another lawsuit against the Jackson Board of Education in 2019. Meucci testified he misunderstood the question, believing it asked if the company had ever had a lawsuit filed against it. However, in his cross examination, Webb characterized it as a misrepresentation, or a lie.
When it was Decker's turn to be cross examined, Webb focused his questions on what reasonable grounds an owner has to eliminate a bidder from competition when considering who the owner wants to carry out the work on a construction project.
Much of Rollo's justification in asking Marion County Circuit Court Judge David Janes to award the contract to Hranec lay in arguing that Hranec had the lowest bid, which under West Virginia state law, requires a public body like the school board to adopt. However, Webb attacked that justification by pointing out through his questioning that lowest bid doesn't necessarily mean lowest cost, which is a reasonable justification for dismissing a bid as an owner.
Webb also brought up the litigation question to Decker. Despite his attempts though, Webb couldn't pin Decker to a yes or no answer, with Decker saying that the question Meucci answered was vague. He also reiterated he thought the process was grossly unfair to Hranec.
After lunch, Webb forced Rollo to abandon his thumb on the scales framing. He asked Decker to name someone specific who had placed their thumb on the scale in order to favor Emcor. Decker was unable to do so. The framing took a further blow when the attorney for Emcor asked Decker directly if Emcor had done anything or influenced anyone to tip the scales for Emcor. Decker again said no.
Rollo did not mention the thumb on scale theory again for the rest of the hearing.
Webb began the Board of Education's defense by placing Administrative Assistant L.D. Skarzinski, in his position as master of facilities, on the stand. Skarzinski provided the context which Webb hinted at in his cross examination of Meucci and Decker. The matrix existed because of past experiences with contractors, with one experience in particular.
"East Dale change orders where on the mind of the Board of Education, when the matrix was created," Skarzinski said.
The change orders for a project at East Dale Elementary resulted in a $1 million cost overrun for the school district. Eager to avoid such overruns again, the district adopted the matrix as a way to concretely determine who would best be suited to take on a particular project.
Skarzinski testified that the matrix was also approved by the State Board of Education, and was developed in conjunction with Thrasher. Partial scoring, which had been a feature of the earlier version of the matrix, became a subject of contention during the previous cross examinations, however, Skarzinski said that the removal of the partial scoring was actually recommended by the State Board because that would have looked prejudicial.
While Skarzinski may have dealt a blow to Rollo's control of the narrative, Marion County school treasurer Scott Reider seized it and refused to give it back despite Rollo's best efforts. Reider explained that he had called the references Hranec provided, but instead of finding positive recommendations, he found at least three negative reviews, with Reider testifying one reference told him Hranec had said at one point, "We'll be there when we get there," in response to an urgent maintenance call for a school.
"When you have teachers and students in a building, time is of the essence," Reider said.
Rollo also questioned Reider on his qualifications. Much of Rollo's arguments centered around the School Board's assigned technical review committee's inability to adequately assess an HVAC project. However, Reider stood his ground and asserted that a "finance guy" was absolutely necessary when dealing with a multimillion dollar project.
Reider even turned Rollo's questioning back on him, capitalizing on a moment when Rollo earlier conceded that finances were important in large scale projects. Reider used the opening to explain that due to previous experiences working in the school system, he had enough exposure to compare a bid against what is known about the finances of an HVAC project.
Finally, School Superintendent Donna Heston took the stand. Her testimony was the culmination of every single point and argument made throughout the course of the day. Earlier, Skarzinski revealed that Meucci had in fact also answered a question about litigation in an interview with school officials. Meucci paused and hesitated when delivering his denial. That raised red flags for Skarzinski.
Heston confirmed Skarzinski's account, and also confirmed that the school board had known about the 2019 lawsuit against Jackson County School Board when they considered Hranec's bid. Meucci's failure to be forthcoming on the lawsuit also harmed other parts of Hranec's bid. Heston testified the school system was skeptical about the man hours Hranec claimed would take to complete the project. The issue with the lawsuit further fueled those concerns.
Despite the strong testimony from members of the school district, Rollo was tenacious to the very end. He did manage to make it clear that portions of the bid process had been unclear or poorly executed, such as one instruction that promised preferential treatment for early submission of a bid.
However, Hranec received no such treatment, either through partial points or any other form, for doing so. Skarzinski and Reider were unable to answer to Rollo's satisfaction what that piece of language in the instructions meant exactly, and it took Heston speaking directly to finally clear it up. However, Heston stopped short of saying that Hranec deserved to get any preferential treatment for early submission.
After a long day of testimony, no final decision was made. By the end of the day, it was clear the case had taken on a dimension of he-said, she-said. Preferring to avoid a snap judgment after the extensive testimony, Judge Janes gave Rollo until next Monday at 4:30 p.m. to deliver his proposed findings and conclusion. He extended Webb the same courtesy.
"I will do the best I can to make a fair decision," Janes said.
Reach Esteban at efernandez@timeswv.com
