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Court upholds dismissal of suit

An appeals court has upheld the dismissal of a lawsuit filed by a contractor whose low bid on the Parker-Fries sewer replacement project was rejected by the Tonawanda Town Board.

Tonawanda Supervisor Anthony F. Caruana said, "[It's] good news for all of us. We can continue on with the project as we had hoped."

The Appellate Division of State Supreme Court unanimously affirmed the lower court's decision, without costs, in the action brought by Accadia Site Contracting Co. of Depew. The town had sought reimbursement for legal costs.

"My client is disappointed but accepts the Appellate Court's decision," Jeffrey F. Reina, an attorney for Accadia, said in a statement.

An Article 78 proceeding was filed against the Town Board after it awarded the contract for phase two of the Parker-Fries project to Concrete Applied Technologies of Alden, whose bid of approximately $8.82 million was the second lowest.

Accadia bid approximately $7.06 million, but the town had characterized it as "conditional" and "nonresponsive" because of a letter written by Accadia's project manager to the town's consultant. That letter, sent separately and weeks before the bid, expressed concerns about the potential for damage by installing temporary sheet piling, as required in bid specifications, and stated the company would be held harmless should damage claims arise.

In dismissing Accadia's legal challenge April 23, State Supreme Court Justice John F. O'Donnell wrote: "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."

Affirming O'Donnell's decision, the Appellate Division wrote, in part:

"We conclude that the determination of the town that [Accadia's] bid was conditional and nonresponsive, and thus constituted a material variance from the project's bid specifications, was rational, honest and lawful."

There was never any question that Accadia could do the work or that its bid was less than any other bidder, said Reina, Accadia's attorney.

"However, because the town took the position that Accadia's bid was conditional, which Accadia has vehemently denied, this project will now cost $1.8 million more in taxpayer money than would otherwise have been the case. In that sense, both my client and the taxpayers lost," he said.

Meanwhile, work on the second phase of the project will begin this summer at Koenig and Fries roads, then head south on Fries.