Mercer-Fraser appeals lost lawsuit over Humboldt Bay Trail North bid

Humboldt Bay Trail North. City of Arcata image

Kevin L. Hoover
Mad River Union

HUMBOLDT BAY – The Mercer-Fraser Company hasn’t gotten over its lost lawsuit over the Humboldt Bay Trail North.

It’s appealing the October dismissal of its suit, which claimed that the $5 million contract for the project had been improperly awarded to McCullough Construction.

Mercer-Fraser had claimed that the city had bungled the bidding process on the project. It cited flaws in city documents which it said induced a number of errors by contractors who had submitted bids, and that the city then improperly disqualified them.

The company had asked that it be awarded the contract for the trail rather than McCullough Construction. The company later attempted to halt construction via a temporary restraining order and then a temporary injunction, both of which were denied.

The city held that the errors Mercer-Fraser cited were trivial – basically on the level of typographical errors that didn’t substantively affect the integrity of the bidding process.

Judge Tim Cissna ruled that the city had properly awarded the construction contract to McCullough as the lowest responsive responsible bidder, dismissing the company’s gripes about paperwork flaws as inconsequential.

The three-mile, Class 1 bike/pedestrian trail was built by McCullough and dedicated last November.

Mercer-Fraser filed its Notice of Appeal last Dec. 1 in state appeals court, but didn’t submit its opening brief until March 23. In the brief, Mercer-Fraser restates its original complaint, claiming that the City of Arcata failed to award trail contract to the lowest bidder, didn’t allow fair competition among bidders and provided illegally flawed bid documents.

It asks that the bid award to McCullough be declared void and the project re-bid.

In an Opposition Brief filed May 11, City Attorney Nancy Diamond reviewed and defended the city’s bidding process. She further states that the project is a done deal, and the matter is moot.

The response directs the court’s attention to a Notice of Completion, which documents that the Humboldt Bay Trail North project was completed on Nov. 17, 2017 – with the notice filed with the county on March 6, 2018.

Concludes the response, “Completion of the construction project is directly and significantly relevant to the court’s determination of whether this appeal is moot.”

For its part, McCullough Construction went into more detail in its “Real Party in Interest’s Response” to the Mercer-Fraser appeal, also filed March 11.

McCullough says Mercer-Fraser is just angling for a big paycheck, but lacks any standing to appeal the completed project.

It states that Mercer-Fraser’s objective is to have the trail contract voided “so that it can pursue disgorgement of profit from its competitor, McCullough Construction, under the guise of being a taxpayer.”

But, says the response, Mercer-Fraser doesn’t establish that it is an Arcata taxpayer.

McCullough further contends that Mercer-Fraser waited four months after protesting the bid results to enjoin the project, even as McCullough and the city moved ahead with the construction work, committing resources and investing in materials and equipment for the job.

It concludes by asking that Mercer-Fraser’s appeal be denied.

Mercer-Fraser answers the city’s and McCullough’s assertions by saying that the filing delay is a non-issue, and restates its position that the bidding process was flawed and that McCullough was improperly awarded the trail contract.

It is now up to the 1st District Court of Appeal, Division 2 panel of judges in San Francisco to decide whether or not to summon attorneys to make oral arguments.

None were requested by the litigants, though the court could require them in order to clarify points in the respective arguments.

But Diamond said she would be surprised if that happened. She expects the judges to rule on the matter without further oral argumentation.


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