NR-S files response to Klemetsrud lawsuit

The New Rockford-Sheyenne School District filed its response to Klemetsrud Plumbing and Heating’s lawsuit regarding the boiler replacement project on Tuesday, Aug. 31. The district maintains that Minot Plumbing and Heating will “best serve the public interest” by being allowed to replace the school’s antiquated boilers, and argues that the district has the authority to choose the “lowest and best bidder,” a decision based on other factors besides money.

In its 14-page response, the school district referenced N.D. Attorney General’s opinion 2002-F-04, dated March 27, 2002, which stated that it is “widely accepted” that public authorities have discretion to consider the quality or character of the materials or work proposed by bidders, with courts “generally taking the position that the terms ‘lowest responsible bidder,’ and ‘lowest and best bidder,’ or their equivalent, do not mean that the awarding officials are required to let the contract to the lowest money bidder, even though he or she is financially responsible, but may award the contract to a higher bidder if in their honest judgment the materials, articles, or work that he or she proposes to furnish are better in quality or more suitable to the intended purpose than the low bidder’s.” (emphasis added)

The NR-S Building Committee met on Aug. 5, at which time the boiler bids were discussed. While no one from the Transcript was present at the meeting, draft minutes the district filed with the court state, ‘Further discussion was held on the merits of each financial firm that submitted a bid proposal. Concern was expressed by building committee members over the quality and past performance of Klemetsrud Plumbing and Heating. It was noted by the committee that long term service, communication and support is of the utmost importance and vital to a project of this monetary amount.”

The footnotes of the school district’s response included the following additional information about the nature of the concerns. The footnote reads, in part, “These past concerns include a project that some of the board members were familiar with that took place in Sheyenne, North Dakota...In short, Klemetsrud was non-responsive to requests, failed to perform repairs, and provided an overall unsatisfactory product and service. The board did not believe that Klemetsrud’s performance on this past project rendered them well-suited to perform work on the NR-S school building when compared to the other bidders...”

The specifics of the Sheyenne project are expected to be provided to the court in written findings or affidavits directly from the board members.

The unapproved minutes also indicate that the committee decided to leave recommendation to the full school board to select the bid award.

School officials maintain that Prairie Engineering reached out to the other contractors to obtain information about past boiler projects performed and school districts with whom they worked only after building committee members raised concerns about Klemetsrud’s past performance and quality.

Prairie Engineering then reviewed the references provided by the other three contractors, and recommended to Superintendent Jill Louters that the district choose “the lower bidder,” namely Minot Plumbing and Heating.

The draft minutes of the Aug. 9 school board meeting were also provided to the court as part of the district’s response. According to those minutes, “Discussion was held on the bidding process, project timeline and district needs both present and future. Board decision was Minot Plumbing and Heating most closely meets the needs to the district now and going forward.”

Beyond arguing that the school board acted within its discretion to choose Minot Plumbing and Heating, NR-S surmises that timely completion of the project is at risk should the temporary restraining order be granted.

Louters stated that she did not see any correspondence from Klemetsrud’s attorney until Aug. 19, three days after Prairie Engineering issued a Notice-to-Proceed to Minot Plumbing and Heating, in which the firm was authorized to request materials needed and mobilize in preparation of a forthcoming formal contract.

“Klemetsrud has not provided any evidence that the public will benefit from having this project continued,” the response notes.

In fact, NR-S argues, the public may be at risk. The school building only has one operational boiler, which was manufactured in 1967 and is antiquated. District officials say that should the temporary restraining order sought by Klemetsrud be granted, that they would be prohibited from even repairing the boilers until the case is settled.

Spending the winter months in a building with a heating unit in need of replacement has the potential to cause “substantial harm to the students in the NR-S district,” they concluded.

The case has been assigned to Judge Troy LeFevre. The Transcript will keep readers abreast of developments as the case advances through the court.