The Morning Journal (Lorain, OH)
Contractor wins lawsuit against city
Black River restoration work awarded to Mark Schaffer Excavating & Trucking
The city of Lorain must award the contract for a Black River ecological restoration project to the low bidder who sued to get the job, according to a Lorain County Common Pleas Court ruling June 14.
Mark Schaffer Excavating & Trucking fought City Hall and won.
Common Pleas Judge Christopher Rothgery ruled the company had the low bid and must get the contract for a multi-million-dollar earth-moving project that will change the landscape behind the steel mills along the Black River.
Rothgery said the city staff were “arbitrary and unreasonable” managing the bidding process.
He issued his decision speaking from the bench in a hearing
lasting less than 10 minutes.
Afterward, Jason Schaffer, vice president of Mark Schaffer Excavating, declined to comment.
Schaffer left the hearing with attorneys Rob Remington, Christina Hassel, Jeff Brauer and their colleagues.
Lorain Assistant Law Director Don Zaleski and Storm Water Manager Kate Golden were present, along with an attorney for Mark Haynes Construction, of Collins, and others.
Golden deferred comment to Lorain Safety-Service Director Dan Given, who was not immediately available.
At trial
The judge’s ruling came after a daylong bench trial June 13.
Those involved recounted the process, with Rothgery noting there was no dispute to the operative facts of the case.
On Jan. 24, the city advertised for bids for the job, which originally was estimated to cost more than $6.72 million.
Mark Schaffer Excavating’s bid of about $4.2 million was the lowest by $180,000.
The city, working with Coldwater Consulting LLC, advised Mark Schaffer Excavating that the bid package was incomplete because it lacked proof of pollution liability insurance and audited financial documents.
The city staff awarded the job to Mark Haynes Construction, then later decided to throw out all the proposals and rebid the project.
The second time around, another company had the lowest price, Mark Haynes Construction was secondlowest and Mark Schaffer Excavating was the thirdlowest.
When the city awarded the project to Mark Haynes Construction, Mark Schaffer Excavating filed the lawsuit seeking a court order to win the job.
In the bench trial, Remington argued the city bid information never stated contractors needed to supply proof of pollution liability insurance and audited financial documents.
He argued city staff and the consultants treated Mark Schaffer Excavating disparately and disclosed confidential information by releasing the first round of bids.
Lorain Law Director Pat Riley argued the city was trying to maintain the integrity of the bidding process when staff threw out the first round of bids.
Arbitrary and unreasonable
But Lorain officials were “arbitrary and unreasonable” in doing so, Rothgery said, and the city “undermined the integrity of the bidding process.”
“Lorain acted unreasonably in issuing the letter to MSE (Mark Schaffer Excavating) rejecting their bid as incomplete, when the criteria for which they found the bid to be incomplete was not called for in the bidding application process,” Rothgery’s ruling said.
Further, Haynes did not provide proof of current pollution liability insurance for Lorain to even argue that it was this missing documentation that they relied upon in determining whether the Haynes was the “best” bidder, the ruling said.
“It was further unreasonable for Lorain to not attempt to cure the bidding process by simply requesting that MSE supplement their bid with the additional documents so that MSE’s bid was not deficient,” the ruling said. “Rather, Lorain chose to reject all bids, reopen the bidding process and disclose the bidding numbers before a second round of bids was received and the contract ultimately awarded.
“The court finds MSE has established Lorain’s abuse of discretion by clear and convincing evidence.”
Scope of work
As for the project, the work involves removing or burying more than 100,000 cubic yards of material and bringing in new topsoil that will allow growth of plants.
The city will pay for the work with money from the Great Lakes Restoration Initiative, coming from the U.S. Environmental Protection Agency’s Great Lakes National Program Office.
Golden has said it will be the capstone of restoration work paid for with a grant of about $15 million for Lorain, first announced in 2015.
The work is expected to take several months and was to be completed by Sept. 30.
Because of the delay due to the legal actions, Golden has said the federal regulators could work with the city to determine an appropriate later completion date.