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Mar. 28 – EXCLUSIVE: Cummings informs Savannah-Chatham Schools they’re suing, a case that could cost millions

By Lou Phelps, Savannah Business Journal

March 28, 2017 – Sources have provided the SBJ with letters between law firms representing Cumming Construction Co., informing the Savannah-Chatham County Public School System that they are going to sue, in light of being denied the opportunity for an appeal hearing.

The national construction firm received the highest ratings of four finalists seeking to be the Project Management company over the next round of SCCPSS ESPLOST construction projects, and they were they were the recommended firm by the five members of the independent Purchasing Evaluation Committee.

But, Supt. Thomas Lockamy ignored the work of the committee, and its recommendations, and instead recommended the Board of Education stay with Parsons, the current project management firm.  And, the Board voted for Parsons, except for School Board President Jolene Byrne who abstained, stating that she had requested a number of documents from the Administration that were not provided to her, and she therefore did not have sufficient information on which to vote.  She specifically had asked for the ranking sheets completed by each of the five Evaluation Committee members.

There are two legal letters between Cumming and the SCCPSS Administration.  The first asks for a hearing to resolve the issue, asking the Board to re-consider their decision.  That was denied by Supt. Lockamy, on his own, and not brought to the Board for a decision.

The second letter is a notice of intent to sue, and addresses a legal response from SCCPSS’ legal counsel.

Cumming indicates the firm intends to sue each of the School Board members personally, as well as sue the system. 

Cumming’s law firm, Walker, Hulbert, Gray & Moore, LLP of Perry, GA., penned a March 24 letter, informing the public schools of their intent to sue.  SCCPSS is represented by Bouhan Falligant in this matter.  Walker, Hulbert's letter that responds to Bouhan Falligant's letter that denies the hearing, states:

“With regard to litigation, we are very familiar with the recent Georgia Supreme Court opinions regarding sovereign immunity, including the Court's instruction therein that, "[o]ur decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities."  Georgia Dept.  of Nat. Res. v. Ctr.  for a  Sustainable Coast Inc., 294 Ga. 593, 603, 755S.E.2d 184, 192 (2014); Olvera v. Univ. Sys. of Georgia's Bd. of Regents, 298 Ga. 425, 428, 782 S.E.2d 436, 438 (2016).

“Thus, the application of sovereign immunity leaves Cumming with no choice but to sue public officials in their individual capacities for which they may be held personally liable. Additionally, sovereign immunity does not preclude claims for mandamus relief against public officials in their official capacities. SJN Properties, LLC v. Fulton Cty. Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015).

“Thus, we do not share the same opinion as Mr. Holliday that sovereign immunity forecloses all legal remedies available to Cumming. In fact, it has been our recent experience (after Sustainable Coast) in litigation with governmental entities and their public officials that sovereign immunity i s not an impassable bar as we have overcome it before. Nor do we share the opinion that "any cases predating Sustainable Coast concerning suits against government entities in the bidding context" are no longer applicable. It remains to be seen what today 's Court will do with City of Atlanta v. J.A. Jones Const. Co., 260 Ga. 658, 658, 398 S.E.2d 369, 370 (1990) and its progeny. Yet, one thing i s for certain. Such litigation will be extraordinarily expensive for the taxpayers and exhaustively time consuming as merely raising an immunity defense is no longer an automatic ticket to a direct appeal and avoidance of discovery. See, Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016)(A denial of a motion to dismiss on immunity ground s is not a directly appealable collateral order).

“Again, we hoped to avoid this path and we remain open to exploring alternative avenues of resolution. However, if the District and its public official s stay their course, Cumming has no other alternative than to seek relief in the courts against those public officials both in their official and individual capacities and Cumming has instructed us to begin drafting suit.

No New Information on Vanguard

In prior news coverage, the SBJ has reported that one of the sheets – obtained under an Open Records Request – had a math error on it.  Without that error, Cumming would have had even higher results, and there would have been an even larger gap between their total number of points and those of Parsons.

Further, Parsons listed as its subcontractor ‘Vanguard,’ a firm owned by Sylvester Formey, a long-time Savannah businessman.  However, there the name of the corporation that the SCCPSS Communications Director/Asst. Supt.  Kurt Hetager provided for ‘Vanguard’ – the business name that Parsons submitted for ‘Vanguard’ on its RFQ forms - is not a valid or active Georgia corporation.  Attempts to contact Formey have been unsuccessful.  

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