By Lisa ZahnerINDIAN RIVER COUNTY — The low bidder for a contract to carry out a $7 million beach renourishment project failed to convince Circuit Judge Paul Kanarek to issue a temporary order Monday stopping the county from ratifying its contract with the winning party. The issue is now set for an administrative hearing Tuesday before the County Commission.Kanarek heard arguments from the attorney for Stormwater and Underground and from County Attorney Will Collins on the issue and refused to issue an injunction ahead of the hearing by the commissioners. Collins argued that the County’s administrative hearing process on Tuesday should be allowed to play out.Either way the parties signalled they will be back in court once the county has made its formal decision to award the contract as Stormwater officials intend to ask for a full hearing should the county move forward and award the contract for trucking sand to the beaches to Ranger Construction. “This to me is a case of whether there has been an exhaustion of administrative remedies or not,” Collins said.Stormwater and Underground attorney Kurt Thalwitzer argued that letting the county commissioners continue down the road toward a contract with Ranger would limit Stormwater’s ability to collect damages.”If we wait until they make a decision, it will be too late,” he said. “The only remedy I will have is to get bid preparation costs of $5,000 to $10,000 plus attorney’s fees, I cannot sue for the lost profits of $7 million.”Thalwitzer said Florida Law would not allow Stormwater to recoup these profits because that would cause the taxpayers of Indian River County to essentially pay twice the cost of having the beach project done — once to the contractor and once to the prevailing party in the lawsuit.Today’s hearing was in response to a complaint from Stormwater and Underground LLC, which was the apparent low bidder for the $7 million beach replenishment project awarded to Fort Pierce-based Ranger Construction by county commissioners on Sept 8. Brian Davis, brother of County Commission Chair Wesley Davis and owner of the North County sand mine which would have provided the 26,000 truckloads of sand for the project for the lossing bidders, was in the courtroom.Also during today’s hearing, Judge Kanarek granted a motion by Ed Lombard of the Tallahassee law firm of Vezina, Lawrence and Piscitelli, attorney for Ranger Construction, to be named as an intervening party in the lawsuit, aligned with the Indian River Board of County Commissioners, which is the defendant in this case. Ranger stands to lose the $7 million contract opportunity should the Board reverse its decision and go with Stormwater and Underground.Should the Board affirm its decision to contract with Ranger, Stormwater and Underground intends to file for a full hearing of the merits of its case in court. Should the Board reverse its decision and move forward to award the contract to Stormwater and Underground, Ranger Construction could then file legal paperwork to revisit and protest this decision.Assistant County Administrator Mike Zito said that, according to the bid documents, a notice of award of contract cannot be issued to either bidder until within five days of receipt of final permitting from the Florida Department of Environmental Protection that it’s OK to deposit the upland sand on the beach. The permit amendment process, which is expected to take between 30 and 90 days, is already underway using data from the three sand mines to be used by Ranger.
On Sept. 10, an Orlando law firm for Stormwater and Underground notified County Purchasing Manager Jerry Davis that it was protesting the bid process. The petition made several allegations, naming Commissioner Peter O’Bryan specifically, and stating that the county had “arbitrary, capricious, unjustified and impermissible reasons for awarding the project to Ranger Construction.”
Ranger was given the go-ahead to work with staff on permitting paperwork to replenish the 6.5-mile stretch of beach from Treasure Shores Park north to John’s Island two days earlier. The area is severely eroded and has been “in peril” since the hurricanes of 2004.Titusville firm Stormwater and Underground submitted a base bid of $7,068,022 and Ranger submitted a base bid of $7,270,807. The “alternate bid” figures, which contemplated delays and possible complications or changes in the project which might be required for permitting, were $8,548,746 for Stormwater and Underground and $7,649,054 for Ranger. Stormwater and Underground’s sand was estimated to last for 13 years and Ranger’s was estimated to last nine years before the project would need to be repeated, based on normal erosion factors.
What all of this means for Indian River County and for beachside residents is the possibility of delay if the legal maneuvering continues. Engineers on the project have said that securing the required permits hinge upon the county and the contractor on the job working quickly and cooperatively to amend the permit applications.