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Legal challenge to Town of Tonawanda sewer work contract is dismissed

A major sewer replacement project in the Town of Tonawanda can proceed now that a judge has dismissed a legal challenge to the Town Board’s award of a contract for the work.

State Supreme Court Justice Deborah A. Chimes’ decision clears the way for the town to sign a contract with Concrete Applied Technologies of Alden (CATCO) for the fourth and final phase of the Parker-Fries sewer project.

The board on April 20 accepted CATCO’s bid of approximately $9.52 million. But Accadia Site Contracting Co. of Depew said its low bid of $9.37 million should have been selected.

Accadia’s bid was deemed by the town as “noncompliant with the bid specifications” because it didn’t include required forms on women- and minority-owned businesses, said Town Attorney John J. Flynn.

“The judge did not agree with them that there was just an administrative error and three forms weren’t filled out,” he said.

The town had argued that it risked losing its lower interest rate for the project’s bond if the project didn’t comply with the requirements, which are mandated by the state. “We want to comply with that not because it’s a law but because it’s the right thing to do,” Flynn said.

Other contractors’ bids also were rejected for failing to submit the forms, Flynn said, including Frey Electric’s $883,000 bid for the electrical construction portion of Phase 4. The second-lowest bid of $1.18 million bid by CIR Electrical Construction was selected instead.

Accadia also sued the town in 2012 after its low bid on Phase 2 of the sewer project was rejected. In that case, Accadia, in a letter to the town, had expressed concerns about the potential for damage by installing temporary sheet piling over holes in roads, as required in bid specifications, and wanted the company held harmless should damage claims arise.

That legal challenge went to the Appellate Division of State Supreme Court, which upheld the dismissal of Accadia’s suit.

Phillip A. Oswald, an attorney with the law firm Rupp, Baase, Pfalzgraf, Cunningham & Coppola, which is representing Accadia, did not immediately return a call for comment Thursday. But he has said that the forms were not submitted due to confusion over the language in the request for bids and the town’s prior practice.

Phase 4 work will affect streets in the Kenilworth neighborhood, including Chelsea Street and Montrose, Chalmers, Lyndale, Hawthorne, Grandview and University avenues.

Flynn said he instructed the town’s water department to have the contract signed by CATCO so a notice to proceed can be given. “Once we have the contract signed, we can begin work on the project,” he said.