Lockport Union-Sun & Journal Online

May 29, 2013

Judge throws out ramp suit

Also criticizes city's handling of bids, case

BY JOHN J. HOPKINS john.hopkins@lockportjournal.com
Lockport Union-Sun & Journal

Lockport Union-Sun & Journal — A state supreme court judge has thrown out a lawsuit filed against the city in which a Sanborn-based company sought to be named the lowest bidder for the municipal parking ramp demolition contract.

While the city appears to be victorious in the lawsuit filed by Scott Lawn Yard Inc. of Sanborn, the judge had harsh words for the city and its actions.

State Supreme Court Justice Richard S. Kloch Sr. threw out the case based on a technicality: Scott Lawn failed to name Empire Dismantlement Corp. — the lowest responsible bidder — among the defendants. That was a fatal flaw, Kloch wrote in a three-page ruling issued Tuesday.

Despite Kloch’s decision, city officials are playing a waiting game before moving ahead with the $1.17 million project.

City Attorney John Ottaviano said he was “cautiously optimistic” following Kloch’s decision.

“They have 30 days to file an appeal if they don’t agree with the decision,” Ottaviano said. “And they also might try and re-commence the action this time naming Empire Dismantling as a respondent.”

In his decision, Kloch noted that the city, common council and Mayor Michael Tucker were all named defendants. The decision by Scott Lawn and their attorney John Bartolomei not to include Empire would be a “derogation” to that company if he ruled in favor of Scott Lawn, Kloch said.

The judge cited a similar case in which a sporting goods store’s lawsuit against the City of Buffalo was thrown out by an appellate court because the alleged successful bidder wasn’t included in the lawsuit.

“I conclude that Empire Dismantlement Corp. is a necessary party, inasmuch as there is no question that the relief sought ... would inequitably affect its rights,” Kloch wrote.

Scott Lawn officials allege that a company representative arrived at City Hall around 1 p.m. April 5 to file their bid, but was misinformed by an employee in the city engineering department where to take it. The Scott Lawn employee ended up at the project engineer’s Buffalo office and was directed to go back to Lockport.

By the time the employee arrived back in Lockport, he was 40 minutes late. Scott lawn’s bid was $190,000 lower than the “winning” bid submitted by Empire.

Kloch noted that the difference “represents nearly $9 for every man, woman and child” living in Lockport. He also wondered if “other problems” exist in the city’s bidding process.

“The nuances of the discussions between the city employee and Scott representative are the unknown in this equation,” Kloch wrote. “What is known is there seemed to be little interest in serving the people who will be paying the contract price — namely, the taxpayers.”

Citing client-attorney privilege, Ottaviano said there are details about the case that did not come out in court and that he still cannot divulge.

“We were mindful, obviously, of getting the best price and following the general municipal law,” Ottaviano said, “but there were questions about the bid itself” beyond numbers written over white out on the Scott Lawn bid, an issue brought up by the defendants in court.

Another question that remains unanswered was how Scott Lawn’s bid was revealed if it was late. Scott representatives claim the engineer hired by the city opened their bid, but city representatives say it was the Scott Lawn employee who actually revealed the bid.

“That just compounded the problem,” Ottaviano said. “In my 20 years, it was a bizarre set of events that don’t normally occur.”

A message left at Bartolomei’s office seeking comment was not returned by press time.

Kloch also scolded the city for an apparent “let the people eat cake” attitude during a previous court appearance.

“The statutes with reference to expenditure of municipal finds for public projects are for protection of taxpayers, not benefit of contracts,” Kloch wrote. “It is this first basic fact that respondents seemingly can not grasp.”

“I’m not sure we conveyed all the facts to the judge as we know them,” Ottaviano said.

With the possibility for Scott Lawn to appeal, it’s likely that demolition will not begin until that 30-day window is closed, Ottaviano said.