Victoria County acted under a legal exemption when bypassing bid laws in the wake of Hurricane Harvey, though the move has continued to spark questions about whether it was the best practice to do so.
Victoria County commissioners Monday discussed the steps taken to address remediation and repairs to county buildings after Harvey.
The discussion was scheduled after County Commissioner Gary Burns said at the commissioners’ Aug. 5 meeting that he had continuing concerns about how the county handled the bidding process. After the hurricane hit, the county voted to exempt itself from state bidding laws and contracted with the Virtus Group, a Kansas-based company now called Commercial Restoration Company, to do remediation and repair work at the Victoria Regional Airport, rather than put any of the work out for bid.
Kevin Cullen, the county’s attorney, and Eric Magee of Allison, Bass and Magee, a private Austin-based law firm that represents the county, were present Monday to address the issue.
Under Texas Local Government code 262.064, a county can exempt itself from usual bidding law – which states that all work of $50,000 or more has to be put out for bid – in the case of public calamity, if it is “necessary to make the purchase promptly to relieve the necessity of the citizens or to preserve the property of the county.”
Cullen said the decision for a court to grant itself an exemption is a discretionary act. That discretion allows the county to make a “judgment call” and decide what is appropriate to do under the circumstances.
“One person might say yes, and another person might say no, and it doesn’t mean that either one of them are wrong or right,” he said.
The county voted unanimously Sept. 11, 2017, to authorize the exemption indefinitely to hire the Virtus Group and approved a contract with the company to make repairs to the airport and other county buildings one week later.
Burns, who previously said he thinks the exemption “was abused” because the county continued to act under the emergency exemption after the immediate work was addressed, requested Monday’s discussion.
“I’ve said this before: We spout transparency in government,” he said. “This doesn’t mean only on our time schedule or when it suits our purpose. We work for our citizens, not each other.”
Not all counties affected by the storm used the no-bid exemption.
DeWitt County Judge Darryl Fowler said DeWitt’s commissioners court “provided for a 90-day window to utilize the ‘no-bid’ process” if any of the exemptions outlined in the Texas Local Government code applied.
DeWitt County did not sustain any significant damages following the hurricane, however, and did not need to use the services of any contractors, Fowler said.
Burns told the court he spoke with a legal representative from the Texas Association of Counties to ask about how the county handled the process and was told, “Whenever there is no immediate danger, it’s good procedure to go ahead and revert back to the bid process.”
Burns also referenced a Sept. 6 email to the county from Kevin Yandell, a claims examiner formerly with TAC, in which Yandell wrote, “At this point we are nearing the end of the emergency services phase (dryout/demolition) and are transitioning into the reconstruction phase. Although I highly recommend asking Shawn Jernigan’s crew to assist with the reconstruction, I understand bid laws and the local political environment should be considered. Victoria County is responsible for selecting, contracting and paying the contractors.”
“It’s just more gray area,” Burns said.
Burns also referenced an Advocate story that quoted a state government expert explaining that when Texas counties choose to bypass legal bidding laws and act by way of an emergency exemption, it can lead to enormous financial and political problems.
Professor Donald Kettl, a government expert and professor at the University of Texas at Austin Lyndon B. Johnson School of Public Affairs, said state bidding procedures are “designed to protect a county and its residents from paying too much and getting too little in quality and from undermining the trust of the process in regard to how money is being spent.”
Magee said the statute is not “gray” but is written to give counties discretion.
“They can’t write a statute that’s going to say, ‘Here’s what you’re supposed to do if you get a Category 4 hurricane and your roof’s flown off the building and water is leaking in from the ceiling and damaging the wood floor,’” Cullen added.
County Commissioner Kevin Janak, who said since February he has been working with a small group of people to fact-check information and review invoices related to the work, reminded the court Monday that the Virtus Group stopped doing work for the county in February and projects still need to be completed.
The formation of a forensic task force to examine spending processes was postponed at the Aug. 5 meeting to allow Janak and the small group to finish the work they have started. Janak said Monday he plans to present something during the Aug. 19 commissioners court meeting.
“The county is in great shape,” he said.