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Sewer work lawsuit dismissed

A major sewer project in the Town of Tonawanda should continue in June after a judge dismissed a pair of legal challenges to the Town Board's award of a contract for the work.

State Supreme Court Justice John F. O'Donnell's decision clears the way for Concrete Applied Technologies of Alden (CATCO) to proceed with phase two of the Parker-Fries sewer replacement project.

Once O'Donnell signs the court orders, the contract with CATCO should be signed within a month, Town Attorney John J. Flynn said Friday. The plan is to break ground by June.

"This whole thing was predicated upon the fact that we were the ones trying to save taxpayer dollars here," Flynn said.

Out of seven bids on the project, CATCO's was the second lowest, at roughly $8.82 million.

The Town Board's decision to award them the contract was challenged by Accadia Site Contracting of Depew, whose low bid of approximately $7.06 million was rejected by the town, and Yarussi Construction of Niagara Falls, the third lowest with a bid of approximately $8.93 million, which claimed other bids were "unbalanced."

The town had characterized Accadia's bid as "conditional" and "nonresponsive" because of a letter written by Accadia's project manager to Conestoga-Rovers 7 Associates, the town's consultant. It expressed concern about the potential for damage by installing temporary sheet piling, as required in bid specifications, and stated the company would be held harmless should any damage claims arise.

Bid specifications had required contractors to indemnify and hold harmless the town from and against claims, damages and losses.

Attorneys for Accadia argued that the letter, which was sent separately and weeks earlier than the bid, wasn't part of the bid and didn't make the bid conditional.

The judge disagreed.

"The letter is a clear statement by Accadia that they are exempting themselves from what would appear to be a crucial element of the contract from the Town's point of view," O'Donnell wrote, in a memorandum signed Tuesday.

Further, the judge found no evidence that the town's actions were arbitrary, unreasonable or unlawful.

An attorney for Accadia Contracting couldn't be reached to comment Friday.

In the Yarussi claim, the judge similarly determined there was no evidence that the town acted in an arbitrary or unlawful manner.

Of Yarussi's claims that other bids were "unbalanced," the judge wrote: "The [uncontroverted] testimony was that such bidding is common in the industry. There was no evidence petitioner was treated any differently than other bidders."

Both companies sought to have the contract go to them or to have the project re-bid.

The order has been drawn up by attorneys from Colucci & Gallaher, which represented the town, and submitted to opposing attorneys for review. It could be signed and filed early next week, Flynn said.

Appeals always are a possibility, Flynn said, but an appeal can't be filed until the order is signed. He said the project will move forward unless either party obtains another temporary restraining order while appealing O'Donnell's decisions.