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Court Issues Split Decision on PA Bridge Bids

Tuesday, May 2, 2017

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A panel of federal judges from the Third Circuit Court of Appeals ruled last week that while the Delaware River Port Authority was remiss in rejecting a bridge-painting bid from contractor Alpha Painting and Construction because of an alleged paperwork error, a district court judge was also incorrect to have mandated the awarding of the contract to Alpha.

Baltimore-based Alpha sued DRPA last year over a contract that the authority, which reports to the governments of Pennsylvania and New Jersey, awarded to Corcon Inc., of Lowellville, Ohio, and Bayside, New York.

About the Suit

The suit, filed in August, claimed that Alpha had the low bid for the contract for Phase Two of a three-part blasting and recoating job on the Commodore Barry Bridge, but was passed over in favor of Corcon, whose bid was just over $10,000 higher and, Alpha argued, included a “material, incurable defect.”

Commodore Barry Bridge
Mike LaMonaca, CC-BY-SA 2.0, via Flickr

A panel of federal appeals judges ruled that a lower court's judge should not have automatically awarded Phase Two of the Commodore Barry Bridge painting job to Alpha Construction just because the Delaware River Port Authority was remiss in rejecting Alpha's bid.

DRPA argued that it had rejected Alpha’s bid because the contractor was “not responsible,” having omitted from the bid documents, including OSHA Form 330, detailing any workplace incidents in recent years. Alpha argued that it had followed up on the bid, inquiring with DRPA as to whether any additional documentation was necessary after it was first submitted, and that DRPA had said none was.

Alpha said in the suit that it filed a protest, but was denied the opportunity to argue its case to DRPA.

District Judge's Ruling

In a four-day trial last fall, Judge Noel Hillman, of the U.S. District Court for the District of New Jersey, ruled that DRPA had acted arbitrarily in denying Alpha’s bid without giving the contractor opportunity to submit documentation that it said was missing. (Alpha had argued that, in addition to following up, it did submit the documentation that DRPA said was left out.)

Hillman mandated in his ruling that DRPA award the $17 million contract to Alpha; DRPA appealed. Third Circuit Court Judges Theodore McKee, Marjorie Rendell and Julio Fuentes heard the case Feb. 3, and issued their ruling April 6. It was made public Friday (April 28).

The Appeal Ruling

In their ruling, obtained by PaintSquare News, the appeals judges affirmed Hillman’s ruling that DRPA had “acted arbitrarily and capriciously,” but vacated the portion of the ruling that said DRPA must award the contract to Alpha. The case will be sent back to the district court for a “more limited injunction.”

Byrne Courthouse
Jeffrey M. Vinocur, CC BY-SA 3.0, via Wikimedia Commons

Judges Theodore McKee, Marjorie Rendell and Julio Fuentes, of the Third Circuit Court of Appeals, in Philadelphia, heard the case Feb. 3, and issued their ruling April 6.

The Third Circuit panel cites precedent in ruling that a district court "should not direct an agency to award a contract to a specific bidder 'unless it is clear that, but for the illegal behavior of the agency, the contract would have been awarded'" to that party.

The panel notes that Alpha "seemed to be a safe contractor," given only one OSHA violation in the past three years, and would appear to be capable, given SSPC QP-1 and QP-2 certifications. However, it says DRPA never made a legitimate determination either way as to Alpha's capability and responsibility regarding the job, so the contract should not have been awarded directly to Alpha by the court. A more appropriate injunction, the panel says, would be one that aims to "undo the illegal action and return Alpha to competition."

DRPA did not immediately return a request for comment Monday (May 1).

Three-Part Job

The Commodore Barry Bridge opened in 1974 and carries traffic between Chester, Pennsylvania, and Bridgeport, New Jerswy. DRPA says the bridge carries 6.5 million vehicles each year. The nearly 14,000-foot-long bridge is made up of 49,000 tons of structural steel and is coated with urethane alkyd paint, according to the authority.

The contract in dispute is the second phase of a three-part bridge rehab that was first announced in 2014. Phase 1, which commenced in 2015, involved the New Jersey approach spans, and was awarded to Corcon despite apprehension from at least one DRPA board member about the low cost of the contractor’s bid.

The Phase 2 contract was awarded last summer, before the suit stalled the project. It includes the Pennsylvania approach spans. Phase 3 will involve the main span over the Delaware River.

Contractor Background

According to court documents, lawyers for Alpha argued that DRPA may have favored Corcon because of a working history and because of a film project the company was working on in relation to work on DRPA bridges. An engineer for DRPA told the court that the authority had no financial stake in the film.

Corcon has done work on many major bridges in the northeast, including the Verazzano-Narrows Bridge and Brooklyn Bridge, both in New York, and the Benjamin Franklin Bridge, another DRPA bridge.

According to OSHA’s enforcement database, Corcon has faced a total of five violations in the past five years, stemming from three different inspections. In the same time period, a joint venture of Alpha and Liberty Maintenance faced seven violations, from three different inspections. Alpha on its own has no record of recent violations.

Editor's note: An earlier version of this story included an incorrect figure in describing the discrepancy between Alpha Painting's bid and Corcon Inc.'s bid for the Commodore Barry job; according to court documents, the difference was $10,200. PaintSquare News apologizes for the error.

   

Tagged categories: Bidding; Bridges; Contractors; Contracts; Government contracts; Laws and litigation; Lawsuits; North America; Program/Project Management

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