The board issued a rescission letter Friday afternoon, apparently at the behest of the governor’s office and deputy commissioner of Commerce and Insurance.
Dan Howell, executive assistant to Bradley County Mayor D. Gary Davis, said Saturday morning, “We believe the board’s stoppage action was an overreaching of its authority. Fortunately the governor’s office and deputy commissioner of Commerce and Insurance agreed and were very instrumental in getting the board to send a rescission letter and reverse this injustice against the storm survivors of Cleveland and Bradley County. That letter was sent to the Mayor’s office at 4:25 p.m. Central Time on Friday.”
Howell said he understood the licensing board’s work stoppage letter came as a result of a complaint filed by two Bradley County contractors who submitted bids for the monitoring portion of the debris removal.
“Their bid was higher and their company did not meet FEMA guidelines,” Howell said.
Federal Emergency Management Agency spokesman Greg Hughes said in a recent interview his agency reviewed the bids and the contracts to ensure they met FEMA requirements.
The specifications of the request for proposal were stated in accordance with FEMA rules.
“We review that (the contract) before the decision is made on who will get the work,” Hughes said. “That’s a normal part of our process that’s required.”
Though FEMA did not select the contractor, had local preference been given to a contractor without experience, then FEMA could have objected and disqualified the contractor.
“That’s a possibility,” he said. “When we review the contract specifics, we would look at that. If somebody does not meet the contract specifics, we would communicate that to the agency that made the decision on the contracts and a contractor could be disqualified at that point.”
Howell said, “The work stoppage letter apparently focused on the removal of approximately 70 tree stump balls identified as being in the right of way. They are partially out of the ground and would be lifted with a grappling hook into a truck and the hole backfilled. The Contractor Licensing Board ruled this activity is ‘contractor work’ and requires a license.”
However, the board’s attorney has stated there is “no classification” for debris removal in the TCA contractor code, according to Howell.
“In order to ensure there is no further interference in the storm cleanup process, Bradley County and Unified Recovery Group agreed to amend the portion of the contract relating to tree stump removal,” he said.
The board issued the cease and desist notice to Unified Recovery Group that threatened the company with fines of up to $5,000 a day if it continued work. The notice, written by the board’s Assistant General Counsel Jenny Gray on behalf of executive director Carolyn Lazenby, was issued June 8.
According to the letter, “It has come to the attention of the Board ... that Unified Recovery Group made an offer to ‘engage in contracting’ within the state without first obtaining a contractor’s license. The letter did not identify who made the complaint.”
The rescission letter was issued June 10 after, according to the letter, “It has come to the attention of the Board ... that Unified Recovery Group responded to the notice to cease operations by executing a change order to the contract with the city of Cleveland and Bradley County.”
Bradley County Attorney Joseph Byrd explained the process of reviewing federal procurement statutes and state statutes regarding licensing contractors.
On May 3, after he finished editing the requests for proposals, Byrd concluded debris removal was not a category that required a contractor’s license.
On May 11, in response to an email inquiry from Rob Renner, Byrd said he again reviewed federal rules, state statutes and Board for Licensing Contractors rules and spoke with attorneys Dan Davis and Smith Day from Unified Recovery Group, and Gray.
All the attorneys agreed given the current regulations, statutes and rules, it appeared there is no category of contractor’s license for debris removal contracts in Tennessee.
On or about May 18, Byrd said he received a telephone call from Gray, who informed him that because of a “tip” from a licensed contractor emailed to the director, the Board for Licensing Contractors was considering discussing the issue of requiring a contractor’s license for debris removal during its business session at its next meeting.
“I told Ms. Gray that I would be glad to provide a perspective from Bradley County, but she indicated at that time she did not even know if it would be added to the agenda for discussion,” Byrd said.
Then about two days later, Gray informed Byrd the issue would be on the board’s regular agenda on May 24.
“I offered to write a letter and (said) I would consider attending if she thought the board would desire to hear from me,” Byrd said. “She responded that the letter might be helpful but did require me to attend.
“On Monday, May 23, I communicated with Ms. Gray after she read my letter and she suggested that it would be helpful if I would attend the business session and invited me to attend the board’s meeting to inform the board of my perspective and answer any questions that its members might have.
“She then informed me that the meeting was in Memphis (not Nashville as I had assumed) and that Bradley County would not be mentioned specifically because the discussion was a general discussion for the board to consider its opinion about requiring a contractor’s license for debris removal. She indicated that she was going to use Bradley County’s RFP as a sample but would redact Bradley County out of its contents.”
Gray said Byrd attended the board meeting to describe the scope of the contract at her invitation during a general discussion by the board. She said Byrd did not represent a specific county. The discussion centered around what type of license was needed, if a license was needed.
“This is a general question I put before the board because one board member can’t decide about license issues. It’s not appropriate. It needs to be the full board,” Gray said.
At the time of the meeting, she said no complaints had been filed against the county or contractor.
She said it appeared there were areas of work that required a license in the Heavy Construction category. But, there was also talk about amending the contract because it contained provisions that weren’t applicable.
“I told the board it was my opinion to not make a finding about a contract that may or may not be amended so if the same contract was put in front of them at the next meeting with those provisions taken out, they might find differently,” Gray said.
“They may have made a motion and voted on it, but I don’t think they did. They may have, but either way, that doesn’t bind them for something in the future if a complaint was filed because, again, it might be presented a little bit differently with more information. This was not a complaint or informal conference or anything like that.”
Byrd said Gray spoke privately to him and suggested the board could construe three areas of the RFP to require a contractor’s license, and asked his opinion with regard to removal of storm deposited soils; removal of debris from canal/waterway; and backfilling after stump removal.
The first two did not apply to Bradley County as it has no beaches for deposited soils or canal/waterways involved and the third area, in his opinion, did not fit any category of license.
When the board began to discuss debris removal, Gray informed the board Byrd was present to provide any information possibly helpful to the discussion.
At no time was Bradley County or Unified mentioned specifically in the discussion and even when Byrd introduced himself, “I did not identify myself from a specific county. The transcript of the meeting will verify my statements.”
He said the chairman called on him twice to answer questions of the various board members.
“While Bradley County and Unified were never mentioned in their opinion and the members could not decide among themselves which kind of license should be required, the board eventually voted on a motion expressing the opinion that debris removal as the Board understood it required a contractor’s license,” Byrd said.
“I understood that the primary basis of their opinion related to removal of FEMA eligible stumps that have 50 percent of the root ball exposed and would require back fill.”
Unified Recovery Group House Counsel Smith Day said Saturday the scope of work in Bradley County is typical of what FEMA classifies as “Category A” debris removal. FEMA has construction categories it labels “C, D, E, F, G.” These categories are not part of Unified’s contract scope.
“A change order with minor changes was executed on June 9,” he said. “It was done to modify scope items that the board felt could be considered construction related, even though FEMA would not.”
Day said Unified has done previous work in Tennessee related to a flood disaster in another county. There was some difference in the scope of work since flood disasters tend to generate less vegetative debris than tornadoes, unless the flood is accompanied by high winds as in a hurricane.
“Unified is proud to serve Bradley County and the city of Cleveland and has enjoyed working with all of the fine people we have met,” he said.