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VOL. 35 | NO. 44 | Friday, November 4, 2011




2 courts back TDOT suspension of contractors

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NASHVILLE (AP) - Two courts in Nashville have backed a decision by state transportation officials to bar two guardrail companies that were implicated in corruption investigations from bidding on projects.

Lu Inc. and Tennessee Guardrail contend in separate lawsuits that their suspensions weren't proper.

Lu Inc. owner and president Novice Cole has acknowledged giving a Tennessee Department of Transportation supervisor $30,000 as the TDOT worker oversaw a 2005 Interstate 65 widening project in Nashville. Cole has not been criminally charged and claimed in his lawsuit that the suspension of his Kingston Springs-based company violated terms of a 2006 agreement he reached with TDOT, according to The Tennessean.

The state argued before Davidson County Chancellor Russell T. Perkins that Lu's suspension was required to preserve "public confidence in the integrity of the department' s bidding and contracting processes" and was based on evidence of irregularities" committed by Cole.

In his lawsuit, Cole noted the payments to the TDOT supervisor occurred in 2005, and he held that a one-year bidding suspension should be overturned. He contended the 2006 settlement with TDOT keeps the state from punishing him for anything the state knew about at the time of the agreement.

In arguments on Oct. 14, Assistant Attorney General Frank Borger-Gilligan said the 2006 settlement only resolved specific allegations that guardrail posts were improperly cut and that the state was improperly billed.

"The underlying issues are different," Borger-Gilligan said. "The basis of the current suspension involves allegations of bribery."

Knoxville-based Tennessee Guardrail filed the other lawsuit.

Company Vice President Kevin Eugene Peel and company founder Allen Roy DeFoe are accused of destroying records requested by a federal grand jury in 2006.

The department's decision to suspend the company was because Peel remains a company officer. The department has declined the company's request for an administrative hearing on the charges.

"We believe this suspension violates Tennessee Guardrail's constitutional rights because its employee was indicted; Tennessee Guardrail was not," Nashville attorney Courtney Smith argued for Tennessee Guardrail at an Oct. 26 hearing before U.S. District Court Judge Kevin H. Sharp.

Sharp ruled for TDOT, noting "the Government has a strong interest in the integrity of its contractors and of the officers whose conduct may be imputed to those contractors, as well as the proper expenditure of public funds."

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