Lockport Union-Sun & Journal Online

May 17, 2013

Witnesses contradict suing bidder's claims

By Joyce M. Miles joyce.miles@lockportjournal.com
Lockport Union-Sun & Journal

Lockport Union-Sun & Journal — The City of Lockport’s formal reply to a spurned contractor’s lawsuit was filed Thursday in state Supreme Court.

City Attorney John Ottaviano’s response to the suit by Scott Lawn Yard Inc. includes sworn statements from a city employee and two engineering consultants who tell a markedly different story than the one offered by a Scott Lawn agent regarding what happened the day bids were opened for a city parking garage demolition/surface parking lot construction job. Finger pointing and litigation quickly followed that bid opening.

Ahead of Scott Lawn’s suit, the Common Council awarded the parking-construction job to Empire Dismantlement Corporation on a “lowest responsible bid” of $1,177,000.

Scott Lawn Yard Inc. vice president Scott Miller cried foul, claiming his company lawfully earned the job, as the lowest bidder among 10 submitting contractors. Scott Lawn’s bid was $987,000.

That a Scott Lawn employee, Christopher Juliano, missed the city-set 2 p.m. April 5 deadline for submitting bids, Miller’s lawsuit blames on an unnamed city employee who, he asserts, misinformed Juliano where bids were supposed to be filed. 

Juliano claimed that, about an hour before the deadline, he tried dropping off Scott Lawn’s bid at the city engineer’s office at City Hall and was told to instead take it to Conestoga Rover & Associates, the contract engineering firm handling the parking-construction job, in Buffalo.

In a sworn statement, the city employee, engineering department senior account clerk Judy Ritchie, says she did not tell Juliano that.

Sometime after 1 p.m. April 5, as she returned to City Hall from her lunch break, Ritchie said she encountered a man in the City Hall lobby who asked her whether she worked in the engineering department. She confirmed that she did “and he said that he had left a bid package on my desk,” her statement said.

Ritchie said she told the man that CRA was handling the parking construction project and asked him whether he wanted the firm’s phone number. The man said he already had the number and walked away from her, according to Ritchie’s statement.

Ritchie did not find a bid package on her desk when she arrived back at the engineering office. She said she confirmed from a published advertisement that bids were supposed to go to the City Clerk’s office, then went outside City Hall to try and find the man. When she did not, she obtained a listing of prospective bidders and started calling them to try finding the man, according to her statement.

“I headed back to my office to continue calling contractors and I was approached by an unknown man who said he saw me in the parking lot looking for the man I had spoken to. The unknown man said he saw the person leave that I was looking for and gave me the contractor’s name, Scott Lawn Yard,” Ritchie said. “I immediately called the office of Scott and spoke with a woman whom I informed that I believed a man from Scott left City Hall with Scott’s bid to go to the CRA office in Buffalo. I also informed the woman to please immediately contact the man and inform him that the bids are being received at the City Clerk’s office and not CRA’s office.”

CRA staff confirmed that a bidder came to the Buffalo office and was directed to go back to Lockport.

In her statement, Ritchie said the man she’d encountered previously came back to the engineering office around 2:45 p.m. and she escorted him downstairs to the City Hall conference room where CRA representatives were waiting.

In their sworn statements, CRA employees Michael T. Marino and Daniel J. Kolkmann, the parking-construction job project manager and construction manager respectively, both said Juliano tried handing them the Scott bid and that they refused to accept or open it because it was late.

Juliano opened the bid himself and showed them the contents, Marino and Kolkmann both said. The engineers verbally confirmed to Juliano that the Scott bid was lower than the lowest on-time bid, they added.

The engineers’ statements oppose the Scott representatives’ account of the bid opening. The suit says Juliano “delivered the still sealed bid to the engineer there ... who took the Scott bid and said ‘Let’s see what you’ve got.’ Then, upon opening the Scott bid, the engineer indicated that ‘you are the low bid.’ Thereafter, Scott anticipated that the city would award the contract to Scott as the responsible lowest bidder.”

CRA’s Marino, in his statement, took note of “several bid items (that) were whited out and rewritten in” in the document that Juliano showed them.

The parking garage project has been on hold since May 1, when at Scott Lawn’s request, state Supreme Court Justice Richard Kloch Sr. issued a temporary restraining order preventing Empire Dismantlement Corp. and the city from commencing a contract.

The city is petitioning Kloch to lift that order and throw out the Scott Lawn suit.

Its petition, penned by City Attorney Ottaviano, says state law does not authorize the city to entertain bids submitted after its stated deadline. It cites case law supporting municipalities that reject late bids.

Further, the petition alleges Scott Lawn is shifting blame when it claims its agent was misled or misinformed about the date and place where bids were due.

The city’s published Notice to Contractors specified that bids for the Lockport Parking Garage Demolition, construction and electrical work portions, would be received at the City Clerk’s office until 2 p.m. April 5.

Nine other bidders followed the instructions in the bid specifications, and without having to ask anyone in City Hall where or when to submit their bids, the petition said.

And according to its own website, Scott Lawn Yard Inc. boasts a client list that includes several dozen municipalities and public authorities that solicit and receive bids. “Therefore, (Scott Lawn) is not new to the bidding process in New York State,” the petition charged.

A court hearing on the city’s and Scott Lawn’s claims is scheduled to take place May 23.