Lockport Union-Sun & Journal Online

May 23, 2013

Spurned bidder's suit going forward

By Joyce M. Miles
Lockport Union-Sun & Journal

Lockport Union-Sun & Journal — Demolition of the city parking garage remains on hold for at least another two weeks after a judge on Thursday ordered a hearing on the competing claims of the city and a rejected contractor.

In answer to the city's request that a temporary restraining order preventing work on the garage be lifted, and Scott Lawn Yard Inc.'s lawsuit against the city be thrown out, State Supreme Court Justice Richard S. Kloch Sr. ordered a June 5 hearing. The complexity of the claims demands one, he said.

Scott Lawn Yard Inc. sued after the city rejected its apparent low bid for the parking garage job. The Sanborn-based contractor offered to do the work — dismantling of the existing garage and construction of a surface parking lot in its place — for $987,000 but the city awarded the bid to Grand Island-based Empire Dismantlement Corp. for $1,177,000.

City Attorney John Ottaviano said that's because Empire Dismantlement's bid was on time and Scott Lawn's was not. He said the city followed state General Municipal Law which, in a section pertaining to bidding, says bids are to be opened and read at the time and place where the municipality previously publicly advertised that they would be.

Regarding the parking construction job, bids were due at the City Clerk's office prior to the scheduled 2 p.m. April 5 opening.

Scott Lawn's bid was not presented to employees of CRA, the engineering firm hired by the city to manage the demolition project, until about 40 minutes past the deadline, according to both sides.

Scott Lawn insists an employee tried submitting its bid at City Hall around 1 p.m. April 5 and was misinformed by an employee in the city engineering department where to take it. The Scott Lawn employee ended up at CRA's Buffalo office and was directed to go back to Lockport.

The city denies any of its agents misdirected the Scott Lawn employee — and insists the company, an experienced bidder for municipal work, should have known exactly when and where its bid was due from reading the published notice to contractors.

Even so, in affadavits filed with the court last week, city and CRA employees said they took steps to accommodate the apparently lost Scott Lawn employee.

Engineering department secretary Judy Ritchie did not say she told the employee to take the bid to Buffalo, but she did say that when she realized he might have gone there, she tried to alert his employer — unknown to her at the time, since the employee didn't identify himself when they spoke — by calling down the list of 10-plus contractors who'd requested bid specs.

About 2:10 p.m. April 5, after nine bids for the demolition/construction job had been opened, CRA employees said they were made aware by Mayor Michael Tucker that a prospective bidder was coming in from their office.

CRA Project Manager Michael Marino said he told Tucker at the time that, per the published notice to contractors, the prospective bidder was late and his bid should not be received. He and CRA Construction Manager Dan Kolkmann agreed to stay put at City Hall and meet the Scott Lawn agent, "as a courtesy," Marino said.

Once they did meet, the CRA employees did not open the Scott bid, the Scott agent did, they added; that's how it became known that Scott Lawn had bid less than Empire Dismantlement.

Kloch, having read all the affidavits before court, peppered city attorney Ottaviano with questions including why he referred to Empire Dismantlement as the "lowest responsible bidder." Was he implying that Scott was not a responsible bidder?

Ottaviano suggested he has questions about the "legitimacy" of the Scott bid, in part because typed figures had been whited out and revised figures written in.

Kloch scoffed at that, insisting hand-made corrections are fairly normal in bid documents.

Ottaviano switched gears and suggested a responsible bidder is merely one who meets the bid submission deadline — which Scott Lawn did not.

"When you deviate from (the state law) you invite problems," he insisted.

Repeatedly, Kloch asked why the city didn't take the Scott bid for the cost savings. By his calculation, the $190,000 difference between the Scott and Empire Dismantlement bids works out to $9 "for every man, woman and child in the city," he said. Doesn't the city "care" about that?

"Your honor, I cannot let the ends justify the means," Ottaviano replied.

The judge also wanted to know why city agents, who'd been informed the lost Scott employee was on his way to the bid opening, didn't hold up the opening for his arrival.

"We followed the bid specs to the law," Ottaviano said. "There's case law that says if a bid is one minute late, we can reject it. ... (Scott Lawn) was negligent in the person they used to deliver their bid. We don't take responsibility for that."

"You don't think the city misdirecting him is a problem?" Kloch asked.

Ottaviano again denied that any city agent had misled or misinformed the Scott employee, and the judge decided a hearing on the sides' opposing versions of the story is required. June 5 is the date agreed to by the attorneys, Ottaviano and Scott Lawn's counsel John Bartolomei.

In the interim, the restraining order on parking-construction work, issued May 1 by Kloch, remains in effect. Before the Scott suit, the city expected work would get under way around May 6 and be done by early August.