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Judge Rules Bridge-Bid Suit May Continue

Thursday, July 12, 2018

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A suit filed in 2016 in reaction to a bridge-painting contract award in the Philadelphia area will continue, after a federal judge in New Jersey last month denied the Delaware River Port Authority’s motion to dismiss the case.

District Judge Noel Hillman ruled June 22 that parts of an amended complaint filed last September by Alpha Painting and Construction, of Baltimore, are valid, meaning that the case should not be dismissed at this time.

Case History

Baltimore-based Alpha sued DRPA in August 2016 over its award of the Commodore Barry Bridge Phase Two blasting and recoating project to Corcon Inc., of Lowellville, Ohio. Alpha said in the suit that it was the low bidder and should have been given the contract but was passed over for Corcon, whose bid was $10,200 higher. Alpha also claimed in the suit that Corcon’s bid included a “material, incurable defect.”

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

Work on the Commodore Barry Bridge, between Chester, Pennsylvania, and Bridgeport, New Jersey, is stalled while the suit continues to work its way through the court system. 

DRPA argued that Alpha had not submitted certain necessary documentation with its bid, including OSHA Form 300, logging workplace injuries and illnesses. Alpha contended that it was not given a proper opportunity to remedy the paperwork issues before its bid was rejected.

Judge Hillman ruled in September that year that DRPA was wrong in its denial of Alpha’s bid, and ordered the authority to award the contract to the Baltimore firm. In 2017, on an appeal filed by DRPA, a panel of federal appeals judges sent the case back to Hillman’s court in New Jersey, arguing that while he was correct in ruling in favor of Alpha in the case, he should not have automatically awarded the bid to Alpha, but should have “returned” the firm “to competition” for the job.

When the case returned to Hillman’s court, the judge ruled that DRPA should re-open the job for bidding with Alpha included; Hillman also gave Alpha the opportunity to file an amended complaint, which the firm did last September. Alpha argued that DPRA had violated its rights to due process and equal protection, and had violated New Jersey and Pennsylvania state sunshine laws when it met privately to make its decision to award the Barry job to Corcon. DRPA moved to dismiss the claims.

Sunshine Law Claims Dismissed

Hillman ruled last month that DRPA was correct in moving to dismiss the argument related to the sunshine laws, because DRPA is not subject to the states’ open-government rules. While the New Jersey state legislature has worked to ensure that its sunshine law applies to DRPA, the Pennsylvania general assembly has not done the same, Hillman said in his opinion, and with one of the two states overseeing the authority exempting it from sunshine laws, the rules can’t apply to its meetings and decisions.

“Nevertheless, despite the Court’s own belief that the world would be a better place if DRPA were held accountable under the same sunshine laws virtually every other governing body in the country is, that decision is for another sovereign and branch of government,” Hillman wrote.

Gavel
© iStock.com / AVNphotolab

District Judge Noel Hillman ruled that parts of the amended complain from Alpha may proceed.

The arguments related to due process and equal protection, however, hold more water, according to the judge. The due-process argument centers on the idea that DRPA deprived Alpha of its due-process rights when it rejected its bid without the opportunity to supply the documents missing from its bid. The equal protection argument is based on the idea that DRPA was prejudiced in favor of Corcon, specifically that the authority accepted Corcon’s bid despite injury-related data missing from its initial bid, and “unilaterally modified Corcon’s bid in its favor.”

Corcon had performed Phase One work on the Commodore Barry and work on the Walt Whitman Bridge, also owned by DRPA, which was documented in the film Bridge Brothers; Alpha implies in its suit that DRPA could have been motivated to award the Phase Two contract to the Ohio firm because of the publicity the film had the potential to bring.

Hillman ruled in the June opinion that DRPA’s motions to dismiss these two aspects of the new, amended complaint were not compelling, and that the suit should continue.

A DRPA representative and an attorney for Alpha did not immediately respond to a request for comment on the ruling Wednesday (July 11).

Bridge Work Stalled

The Commodore Barry Bridge opened in 1974 and carries traffic between Chester, Pennsylvania, and Bridgeport, New Jersey. 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 three-part Commodore Barry rehab project remains stalled while the fight over Phase Two continues to make its way through the court system. DRPA is moving forward with projects on the Walt Whitman, Betsy Ross and Benjamin Franklin bridges this year, and is performing deck repairs on the Barry.

   

Tagged categories: Bidding; Bridges; Contracts; Government contracts; Lawsuits

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