Nicholas Malfitano Aug. 31, 2016, 9:33am


CAMDEN, N.J. – A Baltimore company has initiated legal action in a New Jersey federal court, claiming they were passed over by the Delaware River Port Authority of Pennsylvania and New Jersey (DRPA) as the lowest bidder for a $17 million contract to paint the Commodore Barry Bridge.

According to a lawsuit filed by The Alpha Painting & Construction Company, Inc., DRPA “wrongfully deemed the lowest bidder ‘not responsible’ and is in the process of awarding the [bridge painting] contract to a higher bidder.”

Alpha added DRPA “willfully ignored the merits of the low bidder’s protest, and refused to hold a hearing on the disputed factual issues regarding this procurement, despite multiple requests to conduct such a hearing.”

On May 5, the DRPA first put out invitations for bids to paint the Pennsylvania Approach Spans of the Commodore Barry Bridge, which allows for travel over the Delaware River from Bridgeport, N.J. to Chester, Penn.

Alpha submitted a bid for this project on June 16 in the amount of $17,886,000, which conformed to the project’s bid specifications and rendered it the lowest bidder for the project, according to the lawsuit.

“On or about July 28, 2016, Alpha received an e-mail attaching an undated letter from Amy L. Ash, Acting Manager of Contract Administration for DRPA, which stated that DRPA had conducted an ‘investigation’ of Alpha’s bid and found that Alpha had ‘not submitted an OSHA Form 300 or otherwise detailed workplace incidents over the past three years and the applicable Experience Modification Factors,” Alpha’s lawsuit stated.

Alpha disagreed with this contention, saying it had provided said information and pointed out DRPA never revealed what constituted its “investigation” of the bid, nor contacted it regarding any such investigation in the first place.

“Upon information and belief, at most, DRPA’s ‘investigation’ involved telephoning Alpha’s insurance broker [HMS Associates, Inc.], and then refusing to permit HMS to provide the agency any additional documentation,” the lawsuit read. “In the July 28, 2016 letter, DRPA declared Alpha ‘not responsible’ for failure to supply the documents, and rejected Alpha’s bid.”

When Alpha protested this result, the company says DRPA “denied it a hearing to resolve the outstanding factual discrepancies surrounding bidding for the contract” on Aug. 4.

“The Aug. 4 Denial Letter noted that through the course of DRPA’s ‘investigation,’ it had allegedly ‘contacted Alpha’s insurance broker, Beverly Annunziatta of HMS Insurance Associates, Inc., on July 8, 2016’ and ‘offered Ms. Annunziatta an opportunity to supplement the accident experience information attached to Alpha’s bid submission, but she did not do so,” per the lawsuit.

DRPA further contended, “DRPA was not required to make its responsibility determination within 10 business days, nor is DRPA required to hold a hearing in the event of a protest of that determination. Accordingly, Alpha’s request for a hearing is denied.”

A subsequent appeal from Alpha was denied the following week by DRPA’s Board of Commissioners, as was a second attempt at securing a hearing to resolve the dispute over the Commodore Barry Bridge bid contract.

Instead, DRPA decided to award the bid contract to Corcon, Inc. – whose original bid clocked in at a price roughly $10.2 million more than Alpha’s, and which, according to Alpha and its counsel, contained a “material, incurable defect.”

“There was no debate, deliberation, or even discussion…of Alpha’s bid or its protest, and no Commissioner made any comment or statement about the contract, the bidding process, Alpha’s protest, or the Resolution during the public session [at an Aug. 10 meeting],” according to the lawsuit. “Upon information and belief, to the extent the Board engaged in any discussion of the resolution and contract, any such discussion occurred during the closed Executive Session.”

Through the agency’s alleged conduct, Alpha believes DRPA violated its rights under common law, its right to procedural due process, violated New Jersey’s Open Public Meetings Act and violated Pennsylvania’s Sunshine Law – the latter two being forms of legislations in their respective states designed to promote transparency to the public in meetings of governmental bodies and agencies.

Alpha’s suit looks to obtain a temporary restraining order to enjoin DRPA from executing the contract with the next-lowest bidder, Corcon, to make the contract with Corcon null and void, to award Alpha the contract instead and to further grant Alpha any other relief the Court deems appropriate.

The plaintiff is represented by Peter J. Torcicollo, Kaitlyn E. Stone and Kevin W. Weber of Gibbons Law, in Newark, N.J.

The defendant is represented by Stewart John Greenleaf of Elliott Greenleaf, in Blue Bell.

U.S. District Court for the State of New Jersey case 1:16-cv-05141

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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