IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT W.C. FORE TRUCKING, INC. PLAINTIFF LA. MISSISSIPPI STATE PORT VERSUS COMPLAINT AND AP I . 1' -- or THE MISSISSIPPI STATE PORT AUTHORITY Expedited hearing and consideration requested COMES NOW Plaintiff WC. Fore Trucking, Inc. (?Fore?) and ?les this Notice of Complaint and Appeal and states as follows: INTRODUCTION 1. This is a Complaint and an Appeal from the decision of the Mississippi State Port Authority (?Port Authority?) to refuse to award an approximately $44,000,000 construction contract to Fore. Instead, the Port Authority awarded the contract to Necaise Brothers Construction Company, Inc. (?Necaise?). Mississippi law requires a public contract to be awarded to the ?lowest and best bidder.? Miss. Code. Ann. 37w7w13. It is undisputed that Fore was the lowest bidder. 2. The Port Authority refused to award the contract to Fore because Fore did not submit certi?cates of responsibility for all of Fore?s subcontractors at the time of bid submission. The Port Authority claimed that the Instructions to Bidders contained this requirement. It does not. Instead, the Port Authority?s own contract documents state that certi?cates of responsibility do not have to be submitted until contract award. Applicable rules and regulations con?rm this. - 1 must; . w. a And a Port Authority employee also af?rmed Fore?s understanding prior to bid submission. Further, the Port Authority did not ?provide written notice? that informed Fore that the bid was ?non?responsive or non-responsible during the evaluation process? to allow Fore to remedy any issue. This written notice was required by the Port Authority?s Instructions to Bidders. 3. To be sure, Necaise did not even submit certi?cates of reSponsibility for all subcontractors at time of bid submission. The Port Authority is not applying its own unfounded interpretation evenly. Even more shocking, prior to contract award, the Port Authority?s counsel recommended rebidding the contract as opposed to awarding the contract to Necaise. The Port Authority ignored counsel?s advice. The Port Authority?s actions demonstrate a favoritism to Necaise. This is prohibited by law. 4. The Port Authority?s decision is due to be overturned if the decision (1) was not supported by substantial evidence, or (2) was arbitrary or capricious, or (3) was beyond the Port Authority?s sc0pe or powers, or (4) violated the constitutional or statutory rights of Fore. Contractors, Inc. v. Tunica Cty. Airport Comm?n, 881 So. 2d 358, 361 (Miss. Ct. App. 2004). 5. Substantial evidence was not presented. And the actions of the Port Authority certainly demonstrate? the arbitrary nature of the decision. The Port Authority?s contract award to Necaise should be overturned. In the interim, and until the Court convenes an expedited hearing, this Court should stay the contract award to Necaise. z. 2.9.3! Hulk-'1. n-n -. Anltd- . PARTIES 6. Plaintiff WC. Fore Trucking, Inc. is a Mississippi corporation in good standing, having its principal place of business at 1427 0 Creosote Road, Gulfport, Mississippi 39503. 7. Defendant Mississippi State Port Authority is a state agency. Miss. Code. Ann. 59-5-21. The Port Authority may ?be sued in its own name." Miss. Code. Ann. 595-370). The Port Authority may be served with process upon its Executive Director at 2510 14th Street, Suite 1450, Gulfport, MS 39501. 8. Pursuant to Mississippi Rule of Civil Procedure service upon the State of Mississippi or any of its departments, of?cers or institutions, shall be made by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi. The Honorable Jim Hood, Attorney General, may be served with process at 450 High Street, Jackson, Mississippi, 39205. JURISICTION 9. This Court has jurisdiction over this civil action in accordance with the Mississippi Constitution, Article 6 156 and pursuant to Mississippi Code Annotated 9-7 -81, 9-9-21, and 59-5?37. This Court also has personal jurisdiction over the parties to this action. The Port Authority?s rules con?rm that Fore may appeal a decision from the Port Authority to the designated court or courts of this State. CMSR 28-300v3'01 Rule 13.27. (Port Authority?s Operations and Procedures Manual). VENUE 10. Venue in this Court is proper pursuant to Mississippi Code Annotated 11-11-3, in that the Port Authority is headquartered in the First Judicial District of Harrison County, Mississippi, and the claims and appeal accrued at least in part in the First Judicial District of Harrison County, Mississippi. FACTUAL BACKGROUND 11. On or about November 2, 2015, the Port Authority issued an Advertisement for Bids for the West Pier Construction Phase 2, Project No. 304 (the ?Project? or ?Phase 12. Phase 1 of the work had been previously awarded by the Port Authority. The work submitted for bid was solely related to construction of Phase 2. 13. The Advertisement for Phase 2 stated that the Project was covered by the requirements of Section 3 of the Housing and Urban Development Act of 1968 (?Section One of the goals of Section 3 is to provide employment opportunities for low or very?low income residents in connection with projects and activities. 14. Each bidder for Phase 2 was to provide the Port Authority with Section 3 quali?cations and requirements to demonstrate that the bidder had employees or contractors that quali?ed as low or very-low income in order to provide opportunities for these individuals. See Ex. 1 (Instructions to Bidders). 15. Three bids were submitted from the following contractors: W.C. Fore Trucking, Inc. Necaise Brothers Construction Co., Inc. (?Necaise?); and Huey Stockstill, Inc. Stockstill?). mum- Alw-In-Ilmgwincw.mpu 16. On December 22, 2015, the Port Authority opened the sealed bids submitted by the following three (3) bidders and the total bid amount submitted by each bidder was as follows: Bidder Name Total Bid Amount Fore $43,985,61071 Necaise $44,112,376.28 Stockstill $47,507,75400 17. Mississippi law requires a public contract to be awarded to the ?lowest and best bidder.? Miss. Code. Ann. 37-7-13. 18. It is undiSputed that Fore is the lowest bidder. 19. The Port Authority?s rules state that the Port Authority must ?award business on merit, without favoritism, by securing the best product or service available taking into consideration the best interests of the Port.? CMSR 28300-301 Rule 3.7. (Port Authority?s Operations and Procedures Manual). Further, the Port Authority must ?follow legal and ethical bidding practices.? Id. 20. It is undisputed that awarding the contract to Necaise would require the Port Authority to pay over $126,000 more in additional taxpayer funds for the Phase 2 contract. 21. As a result; the only way that the Port Authority could not award the contract to Fore is if the Port Authority could demonstrate that Necaise was the wholly superior bidder and no favoritism was shown to Necaise. .- .-. nun-a.- - .e . . . M?Pw??w? ?r-J-uul-Y'Mn' 22. On January 27, 2016, the Port Authority received a bid protest from Necaise which protested that: (1) ?during the bids for Phase 1, [Necaise believed] Fore could not meet the Section 3 requirements using only employees from Fore. If this [were] repeated for Phase 2, [Fore?s] bid must be disqualified?; and (2) ?[Fore?s] sub-contractor plan submitted with his bid. [Necaise was] concerned whether there were any sub-contractors listed, but if any were listed they do not meet the requirements set forth in the bid documents furnished by MSPA and MDA along with the provisions outlined in the MS State Board of Contractors licensing requirements(Resolution awarding contract for Phase 2 to Necaise) 23. Upon information and belief, Necaise could only have submitted such a bid protest by viewing Fore?s bid or by receiving information from the Port Authority concerning the information contained in Fore?s bid. The specifics contained in Fore?s bid should not have been provided to Necaise prior to any public records request by Necaise. 24. Upon information and belief, a member of the Port Authority staff had prepared an agenda in preparation for the January 28, 2016, Port Authority meeting which contained an agenda item regarding the awarding of the contract to Fore. Prior to the beginning of the meeting, this agenda was removed and a different agenda was submitted which did not reference the awarding of the contract to Fore. 25. At some point in time, Necaise submitted a public records request for Fore?s bid. The Port Authority delivered Fore?s bid to Necaise on approximately February 4, 2016 after Necaise had already submitted the bid protest. 26. On February 3, 2016, the Port Authority requested that Fore (1) provide documentation which stated that the Section 3 residents identi?ed in Fore?s bid package were employees of Fore, and (2) con?rm that Fore would not subcontract any work under the Project in an amount in excess of ten percent 27. Fore reSponded that same day. 28. The Port Authority concedes that Fore?s response ?complied with the Port Authority?s request and provided information that demonstrated that .the employees identi?ed in Fore?s bid package are employees of Fore and, further, that Fore did not have any subcontractors Whose work will exceed an amount in excess of ten percent of the total bid(Resolution awarding contract for Phase 2 to Necaise) (emphasis added). 29. On February 4, 2016, Fore sent a public records request to the Port Authority for Necaise?s bid. Later that day, the Port Authority provided Fore with Necaise?s bid. 30. On February 5, 2016, Fore submitted a bid protest of Necaise?s bid. Fore?s bid protest was Lsirnple: the Port Authority itself determined that Necaise was not quali?ed as a Section: 3 contractor. The Port Authority made the determination on December 28, 2015, that Necaise was not quali?ed as a Section 3 contractor. .mg-malanm?. and u? .1qu -. Mn. Pursuant to the Instructions to Bidders, Necaise?s bid must be rejected since he was not quali?ed as a Section 3 contractor31. Additionally, upon information and belief, Necaise did not submit all of Necaise?s employees for consideration, which in turn allowed Necaise to submit a fewer number of speci?c employees for consideration concerning Necaise?s Section 3 status as such Section 8 contractor status is calculated according to the percentage of low income employees in the contractor?s work force versus the entire contractor?s work force. 32. The Instructions to Bidders also set forth that a contractor could be disquali?ed as a bidder if the ?Bidder is in arrears on existing Contracts with the Port AuthorityNecaise was previously awarded the contract for Phase 1. Upon information and belief, Necaise is behind schedule on Phase 1, and the Port Authority has had to pay for cost overruns. 33. With regard to Necaise?s Section 3 de?ciencies, the Port Authority claims that the Mississippi Development Authority identi?ed minor informalities in the form of clerical errors and questions in the Section 3 submissions of Fore and Necaise, and that the MDA advised the Port Authority that no such minor informality constituted a disqualifying error with respect to the Project?s Section 3 requirements for either Necaise or Fore(Resolution awarding contract for Phase 2 to Necaise). For support of this claim, the Port Authority relies on an email chain between certain individuals with Horne, LLP who attempt to interpret part of Necaise?s bid concerning Section 3 requirements. The 1-. m-n . mean we: individuals included in the email chain do not appear to be employees of MDA and it is unclear of the individuals? relationship to MBA. Id. Further, there are certain quali?ers submitted with the opinions of these individuals. For example, the individuals do not appear to know whether Necaise has a suf?cient number of full time employees on staff or not. Id. 34. Regardless, the Port Authority does not explain how this email chain somehow supersedes the Port Authority?s prior determination that Necaise did not qualify as a Section 3 contractor. 35. The Port Authority determined that ?all bid protests? should be rejected(Resolution awarding contract for Phase 2 to Necaise). 36. However, despite rejecting Necaise?s bid protest of Fore?s bid, the Port Authority ultimately rejected Fore?s bidand Exhibit I to the Resolution. 37. Indeed, on February 12, 2016, the Port Authority entered a Resolution where the Port Authority rejected Fore?s bid on the following basis: WHEREAS, based upon the inadequacies of Fore?s bid with respect to the electrical work and the hot mix asphalt work, approximately 55.44% of Fore?s total bid amount is unable to be properly evaluated by the Port Authority or performed by Fore. As such, Fore is a non-responsible bidder and its bid should be rejected or alternatively, deemed not the ?best? bid; Id. at p. 4. 38. The Port Authority reached this conclusion based on the following speculation: WHEREAS, based upon the Port Authority?s review of the bids, can?! Wm Jug,? mi'rrtni'rrn? Immrn- ?gm-g -- want-wry the bid submitted by Fore re?ects electrical work in the amount of $13,098,297.70, approximately 29.78% of Fore?s total bid amount. However, Fore, from reviewing the submitted Certi?cate of Responsibility, does not have a license to perform commercial (or any other) electrical work. Although the Port Authority is aware that a certain portion of the electrical work can be performed without a license, Fore does not possess the necessary quali?cations to self-perform any part of the electrical work for which a license is required (which establishes grounds for rejection of the bid). The Port Authority must infer that Fore intends to subcontract the electrical work to multiple subcontractors in order to remain at or under the 10% threshold. However, Fore did not identify or provide Certi?cates of Responsibility of any subcontractors anticipated to perform the electrical work required for the Project; WHEREAS, in addition to the foregoing, the bid submitted by Fore re?ects FAA hot mix asphalt work in the amount of $1,285,532.00, approximately 25.66% of the total bid. Based upon review of the bid submitted by Fore, Fore does not possess the necessary certi?cations, facilities, asphalt mix plant, and equipment to create the speci?ed asphalt mixture (which necessitates rejection of the bid). The Port Authority must infer that Fore intends to subcontract the performance of the aSphalt mixture work to multiple subcontractors in order to remain at or under the 10% threshold. However, Fore did not identify any subcontractors to perform such work required for the Projectother speci?cs were provided by the Port Authority as to why Necaise could be considered the best bidder. 40. Prior to entering the Resolution, the Port Authority did not request any information from Fore concerning the electrical work or the hot mix asphalt work. 41. Prior to "entering the Resolution, the Port Authority did not ?provide written notice? to Fore that informed Fore that the bid was ?non-responsive or non?responsible during the evaluation process.? This written notice was required 10 ?no, by the Port Authority?s Instructions to Bidders(Instructions to Bidders). 42. On the morning of February 12, 2018, Fore became aware that the Port Authority was taking issue with Fore?s bid concerning the hot mix asphalt and electrical work. Therefore, that same morning, and out of an abundance of caution, Fore provided the Port Authority with the following information to address any of the Port Authority?s concerns with the hot mix asphalt work and the electrical work: 1. Hot-Mix Asphalt. Fore will contract with Huey P. Stockstill, LLC to provide and install the hot~mix asphalt. Fore will supply all the materials from its existing supply. As a result, Stockstill will not have to purchase the materials. For this reason, the subcontract amount between Fore and Stockstill will not exceed the ten percent threshold requirement for listing subcontractors. Stockstill is a reputable asphalt subcontractor whose COR is A copy of Stockstill?s COR is attached. This satis?es any concern the Port may have with respect to performance of the hot-mix asphalt requirements on the Project. 2. Electrical. Fore will subcontract with Land Services, LLC to install all required electrical work. is a licensed Building Contractor quali?ed to perform this work. Fore will purchase the materials direct from the supplier and Fore will perform all required electrical demolition work. For this reason, the subcontract amount between Fore and Land Services will not exceed the ten percent threshold requirement for listing subcontractors. is a reputable building contractor whose COR is 16963-MC. A copy of C?s COR is attached. See Ex. 3 (Letter delivered on the morning of February 12, 2016 to the Port Authority prior to the afternoon announcement of contract award; the letter is dated February 5, 2016, but the date of February 5th is a typographical error). 11 Hug-33:9? "mm ?war Me. u-u. nun-a Law 3-, .. "are? 43. Fore?s letter corrected the Port Authority?s prior misunderstanding concerning Fore?s bid that was based solely on the Port Authority?s misplaced conjecture. 44. Further, Fore was not even required by Mississippi law to provide any of the information that Fore submitted in the letter on the morning of February 12th. In fact, Mississippi law does not require Fore to provide any information concerning subcontractors prior to contract award to Fore. 45. For example, Fore was only required to submit a list of all subcontractors to be used on Phase 2 within seven days after written notice of the contract award. See Section 600.55 of the Engineering and Construction Procedure Manual from the Bureau of Building for the Mississippi Department of Finance. Similarly, Mississippi law only required Fore to submit a list of all subcontracts, exceeding $50,000, on or before the date of being awarded the prime contract for Phase 2. See Rule of the Rules and Regulations of the State Board of Contractors as applied to Commercial Contractors. 46. The Port Authority?s Instructions to Bidders recognizes that ?[a]ll applicable laws, ordinances, and the rules and regulations of all governmental authorities having jurisdiction over construction of the Project shall apply to this solicitation and Contract throughout.? See Ex. 1, at 13.8 (Instructions to Bidders). 47. Fore demonstrated through certi?cation and other means that no subcontractor - for electrical work, hot mix asphalt work, or otherwise would exceed the 10% threshold. This was all that was ever asked of Fore. 12 no.1- w-nv?u-wm .. 48. The Port Authority even acknowledged that ?Fore complied with the Port Authority?s request and provided information that demonstrated that . . . Fore did not have any subcontractors Whose work will exceed an amount in excess of ten percent of the total bid(Resolution awarding contract for Phase 2 to Necaise) (emphasis added). 49. There was no legal requirement for Fore to submit the names of all subcontractors or to provide Certi?cates of Reaponsibility for subcontractors who did not exceed 10% of ore?s total bid prior to contract award. 50. The Port Authority met during a Special Meeting on Friday, February 12, 2016, at 1:30 p.111. 51. W.C. Fore attended the meeting on behalf of W.C. Fore Trucking, Inc. W.C. Fore was ready, willing, and able to answer any questions that the Port Authority may have. W.C. Fore was never provided that opportunity. 52. As soon as the meeting convened, the Port Authority went into executive session to discuss a ?litigation? matter. The public was excused from the meeting. 53. When the Port Authority came out of the approximate forty-five minute executive session, a Resolution was immediately presented awarding the contract for Phase 2 to Necaise. 54. The ResolutiOIi was read aloud. 55. Even though Fore?s letter that was presented earlier that morning (Exhibit 3) addressed the concerns raised for the ?rst time by the Port Authority in 13 In: T. WAFEMW. a? a. .u w?h 0"!pr the Resolution, the Port Authority?s legal counsel stated that the letter presented by Fore earlier that morning should not be considered. 56. A vote was taken on the Resolution. By a vote of 4-1, the Port Authority rejected Fore?s bid and awarded the contract for Phase 2 to Necaise. 57. The Port Authority?s Instructions to Bidders set forth that the ?Port Authority may waive any informalities or minor defects? with a bid(Instructions to Bidders). Likewise, the Instructions to Bidders state that the Port Authority ?reserves the right? to ?waive technicalities or irregularities.? Id. at p. 7. In fact, the Port Authority admits that it attempted to waive irregularities, technicalities, informalities, or minor defects with Necaise?s bid concerning Section 3 requirements. Yet, the Port Authority arbitrarily refused to provide Fore with the same treatment with regard to the Port Authority?s issues with the hot mix asphalt work and the electrical work. 58. Despite the fact that the Port Authority was considering awarding a contract in excess of $43,000,000, there was zero public discussion by the Port Authority as to why Fore?s bid should be rejected and the contract should be awarded to Necaise. No discourse. No debate. No back and forth for the public to see how the Commissioners reached their votes. 59. Prior to meeting, prior to a vote, and without any public discussion, legal counsel had been directed to prepare a six page single-spaced Resolution that rejected Fore?s bid and awarded the contract to ecaise-.7. 60. The Resolution was prepared in advance of the meeting on February 12th. For example, on the morning of February 12th, legal counsel for the Port Authority was compiling the exhibits for the Resolution that had already been prepared. See Exhibits and to the Resolution. 61. Even if a decision had not been made by the time of the meeting 011 February 12th, the Port Authority wrongfully discussed the awarding of a public contract during executive session when the stated reason for the executive session was a ?litigation? matter. While strategy concerning potential litigation may be a proper topic for discussion in an executive session, the awarding of a public contract is not a proper topic for discussion in executive session. 62. Upon information and belief, the Port Authority violated the Open Meetings laws and Mississippi law concerning the proper open procedure for discussion and award of public contracts. 63. Mississippi?s public authorities, such as the Port Authority, owe all bidders a duty of good faith and fair dealing to consider all bids equally, honestly, and without favoritism or advantage as to any one bidder. The Port Authority?s acts and omissions breached these duties and violated Mississippi?s procurement statutes and applicable legal principles. 64. On or about February 18, 2016, WC. Fore received a letter from the Executive Director of the 'Port Authority. See Ex. 4. The letter stated that Fore?s bid protests were denied by the Executive Director of the Port Authority. Id. 15 .1 H-vnmawmm?w?Mq-?u?wa w. pm. - - bah-Y.? 65. According to the Port Authority?s rules, an appeal was required to be filed within seven days of an adverse decision by the Executive Director. CMSR 28-300-301 Rule 13.15. (Port Authority?s Operations and Procedures Manual). 66. Fore ?led an appeal with the Port Authority on February 19, 2016. See Ex. 5 (Fore?s appeal to the Port Authority). 67. A hearing was held by the Port Authority on March 14, 2016. 68. Counsel for Fore presented argument on Fore?s behalf at the hearing. Counsel for Fore explained that the Port Authority?s own contract documents did not require Fore to submit certi?cates of responsibility for subcontractors at time of bid. See Ex. 6 at Section 27 (General Conditions). There is no purpose for Section 27 of the General Conditions if the certi?cates of responsibility were supposed to be submitted at time of bid submission. Likewise, Mississippi law did not require Fore to submit certi?cates of responsibility at time of bid either. In fact, Necaise did not provide certi?cates of responsibility for all subcontractors. Furthermore, counsel for Fore clari?ed the difference between a responsive bidder and a responsible bidder, and counsel for Fore demonstrated how Fore was both a responsive bidder and a responsible bidder. In sum, Fore presented the lowest bid. The Port Authority did not have a valid objection to refuse to award the contract to Fore. 69. Counsel for the Port Authority presented argument on behalf of the Port Authority at the hearing as well. Counsel for the Port Authority conceded that Fore was the lowest bidder. And counsel for the Port Authority claimed that the issue was whether Fore was the best bidder. Counsel for the Port Authority 16 Verna-v:- er? mow "Pt?nu- new awn-manna. (ht-5n. mama-L {rm 2- yuan-w, . .mvn-vzn-w n-mwru-w- identi?ed the following three factors to consider as to whether Fore was the best bidder: (1) timeliness, (2) experience, and (3) facilities. The primary point of counsel?s argument was that Fore did not submit certi?cates of responsibility at time of bid submission. Counsel for the Port Authority also claimed for the ?rst time - that documentation was required to demonstrate 10 years of experience for the entity of the electrical subcontractor. Fore?s electrical subcontractor (the entity itself) was licensed for nearly eight years. Counsel for the Port Authority did not claim that any such information concerning the electrical subcontractor had to be submitted at time of bid submission. It was clear that this new argument was a post ad hoc attempt to justify a prior decision. 70. W.C. Fore testi?ed at the hearing. Fore recognized that he completed over 35 construction projects at the Port over the past 43 years, all on time and within budget. See Ex. 7 (Sun Herald article summarizing points from the hearing). Further, Fore explained how the subcontractor providing the hot mix aSphalt work would be less than 10% of the total contract award because Fore would provide the materials for the hot mix asphalt work, and the subcontractor would only be tasked with ?cooking and laying? the asphalt. Similarly, Fore af?rmed how the electrical subcontractor would be less than 10% of the total contract award because Fore would provide the materials, and the electrical contractor would only ?pull wire? and perform-iother tasks required by an electrical contractor. Fore also identi?ed the decades of electrical contracting experience for the family who owned the electrical subcontractor entity. 17 55:. r'f'trv -. Wma?m.w.4??m.?w3 71. At the end of the hearing, it was revealed that counsel for the Port Authority had previously advised the Port Authority to rebid the contract instead of awarding the contract to Necaise. Id. (Sun Herald article). 72. A few days after the hearing, the Port Authority sent Fore additional correspondence. See Ex. 8 (letter from Port Authority President E.J. Roberts referencing letter from Nick Foto). In the correspondence, the Port Authority requested that Fore respond to new information from a Port Authority employee who claimed that Fore was orally informed during a pre-bid meeting that certi?cates of responsibility were to be submitted for all subcontractors at time of bid. Id. 73. Below is the substance of Fore?s response: Dear President Roberts: W.C. Fore Trucking, Inc. (?Fore?) is in receipt of your letter dated March 17, 2016, wherein you requested a response to a letter from Mr. Nick Foto, Deputy Director of Port Restoration. We appreciate the opportunity to provide this response. I. Fore submitted the lowest and best bid. Fore was not required to submit Certi?cates of Responsibility for each contractor. The contract should be awarded to Fore. Mr. Foto?s letter adds nothing new. The Mississippi State Port Authority at Gulfport (?Port?) has already stated during this appeal that a copy of each subcontractor?s Certi?cate of Responsibility was required at bid submission. Mr. Foto merely agrees with that interpretation. It is clear that any hearsay communications at the pre-bid meeting do not provide additional support for the Port?s newly advanced position. To the-contrary, Mr. Foto?s letter con?rms Fore's interpretation. For the reasons set forth below and presented with ore?s appeal, Mr. oto?s letter should not be considered, and the Port should recognize that Fore was not required to submit Certi?cates of Responsibility for subcontractors. First, Mr. Foto?s letter should not be taken into account as the Port is precluded from advancing interpretations from a pre-bid .., ?Vi-N?v-hrv. -, meeting. Indeed, the Instructions to Bidders recognize that ?[a]ny contract interpretation of the Contract Documents will be made only by a written addendum duly issued,? and that the Port ?will not be responsible for any other explanation or interpretation of the Contract Documents.? See Instructions to Bidders, page 9. Second, Mr. Foto?s opinion is not supported by events that took place at the pre-bid meeting. Two participants at the pre~bid meeting have presented Af?davits disputing Mr. Foto?s opinion. These participants recognize that the pro?bid meeting only further underscored the perception that Certi?cates of Responsibility did not need to be submitted until contract award. See Exhibit A (af?davit of Kevin Leidigh); see also Exhibit (Af?davit of Bob Gavin). One of the participants was even told by Angie Short prior to bid submission that ?the subcontractors? information could be turned in prior to or at the award of contract(emphasis added). Ms. Short is the Contract Administrator for the Port. Id. Ms. Short was contacted by Mr. Leidigh prior to bid submission to con?rm the proper format. Id. Third, the information submitted in connection with Mr. Foto?s letter actually contradicts Mr. Foto?s opinion. In his letter, Mr. Foto references material contained on PowerPoint slides. Slide 4 contains the following: Instructions to Bidders Checklist Please make sure all items are submitted Slide 4 does not identify what the ?Checklist? is. More importantly, Slide 4 does not say when each item must be submitted. Slide 5 contains the information concerning the submission of a subcontractor?s Certi?cate of ReSponsibility. Slide 5 is merely copied and pasted from page 2 of the Instructions to Bidders. And, just like the Instructions to Bidders, Slide 5 does not specify that each subcontractor?s Certi?cate of Responsibility must be tendered at bid submission. Instead, other slides in the PowerPoint support Fore?s interpretation that Certi?cates of Responsibility were not required until contract execution. For example, the heading for "slide 33 states ?What happens if I am successful in obtaining a contract with Then, slide 33 says that the Port ?will meet with you for orientation to get you started off the right foot with hiring, record-keeping, etc.? The very next slide (slide 34) recognizes that the subcontractors which are ultimately hired must be licensed and hold a Mississippi State Contractor?s License at time of bid submission. The implication is that discussions concerning 19 .. .. mm, I I subcontractors will not take place until bid award. Likewise, the winning contractor must not provide Certi?cates of Responsibility for subcontractors until contract execution and after ?obtaining a contract with Any contrary interpretation would render slide 34 irrelevant because there is no need to inform a general contractor of this information if the Certi?cates of Responsibility are required to be submitted at bid submission. Fourth, Fore?s interpretation is supported by the Port?s own general conditions and applicable law. Section 27 of the Ports general conditions states that subcontractors do not need to be submitted until contract execution. The general conditions comport with state law. See, Section 600.55 of the Engineering and Construction Procedure Manual from the Bureau of Building for the Mississippi Department of Finance; see also Rule of the Rules and Regulations of the State Board of Contractors. Fifth, Necaise Brothers Construction Co, Inc. (?Necaise?) did not submit ?each Subcontractor?s current State of Mississippi Certi?cate of Responsibility? at time of bid submission either. Only Huey Stockstill complied with the Ports interpretation. If the Port relies on the specious interpretation advanced by Mr. Foto then the Port is undoubtedly demonstrating an arbitrary preference for another contractor as Necaise did not satisfy the Port?s own interpretation that is being advanced to reject Fore?s bid as the best bid. Finally, the Port never provided written notice to Fore during the evaluation process to inform Fore of noncompliance with any requirement for Fore to provide a Certi?cate of Responsibility for each subcontractor. See Instructions to Bidders, page 8 (?The Port Authority will provide written notice to all bidders determined to be non-responsive or non~reSponsible during the evaluation process?). Instead, the Port merely asked Fore during the evaluation process whether Fore planned to use subcontractors for 10% or more of the contract amount. Fore responded no. In sum, for the plethora of reasons set forth above and presented in Fore?s appeal, there is no basis in any decision to not award the contract to Fore..__ because Fore did not present Certi?cates of ReSponsibility at bid submission. To the extent the Port is prepared to not award the contract to Fore because Fore did not submit Certi?cates of Responsibility at bid submission, then Fore renews his bid protest of Necaise?s bid. 20 - .?f?ww-Mm. .n and, 1 grid?aqua? mm. a. II. Fore submitted the lowest and best bid. Fore was not required to submit the length of ?documented experience? for Fore?s electrical contractor. The contract should be awarded to Fore. At the appeal hearing, counsel for the Port put forward an allegation that Fore?s electrical contractor has been licensed for nearly eight years and not ten. This allegation was not a part of the Port?s Resolution and decision to award the contract to Necaise. As such, this allegation should have no bearing on this ?appeal? of the Port?s prior decision. Nonetheless, Fore desires to provide further context to this allegation. The allegation, advanced by counsel for the Port, stems from Section 1.10 of the General Conditions for All Electrical Systems. Section 1.10 states as follows: 1.10 Quali?cations A. Electrical Facilities Installer: Company specializing in performing work as speci?ed in Division 26 with minimum ten (10) years documented experience. B. Medium-Voltage (23kV) Facilities Installer: Company specializing in performing work as specified in Division 33 for Electric Utilities (municipal electrical systems, electric cooperatives or investor-owned utilities) with minimum ten (10) years documented experience. C. Testing Service Company: Refer to Sections 26 08 00 for Testing Service Company requirements. Notice that the ?Quali?cations? do not state that the Company must have an electrical license with the State Board of Contractor?s that is at least ten years old. Instead, the ?Qualifications? only require the Installer to have ten years of ?documented experience.? The Port does not claim that the length of ?documented experience? was required to be submitted with the bid. The ?Quali?cations? are not a part of the ?Instructions to Bidders.? Indeed, no bidder provided any information concerning the; length of time of ?documented experience? for an electrical subcontiactor. These ?Quali?cations? come into play only upon contract award. And the Port has never requested the ?documented experience? of the individuals associated with Fore?s electrical contractor: Land Services While was licensed in 2008, the company has been in business since 2005 over ten years ago. See Exhibit (Unofficial 21 . new. ninrnr- anew. Certi?cate of Good Standing from the Mississippi Secretary of State). Fore also testi?ed that the family involved with has been in the electrical installation business for more than 30 years. The clear intent of Section 1.10 is to ensure that any individual acting as electrical installer is quali?ed. There is no doubt that has quali?ed electrical installers with documented experience that exceed ten years. The Port has never asked for such experience. The Port attempted to ?waive technicalities or irregularities? with Necaise?s bid concerning the Section 3 requirements. The Port?s Instructions to Bidders recognize that the Port ?reserves the right? to ?waive technicalities or irregularities.? See Instructions to Bidders at page 7. It is undisputed that Fore was not even required to submit the length of ?documented experience? of any electrical contractor with the bid. Based on counsel for the Port?s presentation at the appeal hearing, the Port is attempting to justify a decision to not award Fore the contract because Fore did not submit the length of ?documented experience? for the individual electrical installer, when Fore was not required to submit the length of ?documented experience,? when the Port never asked for such ?documented experience,? and when no other contractor submitted the length of ?documented experience.? Such a decision would surely be arbitrarily made. Thank you again for the opportunity to submit this response. Should the Port require or request any more information, please let us know. See Ex. 9 (Fore?s response to Port Authority?s post hearing correspondence). 74. The Instructions to Bidders recognizes that ?additional information? could be obtained from ?Ms. Angela Shortt? with the Port Authority(Instructions to Bidders). And Fore did just that when Shortt con?rmed Fore?s understanding concerning certi?cates of responsibility. 75. On March 24, 2016, the Port Authority denied Fore?s appeal and stood ?by the award of the Preject to Necaise?.? See Ex. 10 (Port Authority?s denial of Fore?s appeal). 22 STANDARD OF REVIEW 76. The Port Authority?s decision is due to be overturned if the decision (1) was not supported by substantial evidence, or (2) was arbitrary or capricious, or (3) was beyond the Port Authority?s scope or powers, or (4) violated the constitutional or statutory rights of Fore. Contractors, Inc. v. Tunica Cty. Airport Comm'n, 881 So. 2d 358, 361 (Miss. Ct. App. 2004). COUNT I Port Authoritv arbitrarily reiected Fore?s bid 77. All prior paragraphs are incorporated as if stated herein. 78. The Port Authority?s rules state that the Port Authority must ?award business on merit, without favoritism, by securing the best product or service available taking into consideration the best interests of the Port.? CMSR 28-300-301 Rule 3.7. (Port Authority?s Operations and Procedures Manual). Further, the Port Authority must ?follow legal and ethical bidding practices.? Id. 79. Mississippi law requires a public contract to be awarded to the ?lowest and best bidder.? Miss. Code. Ann. 37-7-13. 30. Fore indisputably submitted the lowest bid. 81. The Port Authority acknowledged that Fore ?provided information that demonstrated that . . . Fore did not have any subcontractors whose work will exceed an amount in excess" of ten percent of the total bid(Resolution awarding contract for Phase 2 t0 Necaise) (emphasis added). 82. Fore was not required to list any subcontractors that were under 10% of the total bid prior to contract award. 23 c-u-ra lKuL?-?Ju- I warn:- . 83. To the extent the Port Authority now claims that Fore should have submitted information related to all subcontractors, then the Port Authority is arbitrarily and capriciously attempting to provide a basis for the rejection of Fore?s bid that was never communicated to Fore prior to award and is contrary to Mississippi law. Such a basis would have easily been cured if the Port Authority accepted the letter submitted by Fore on February 12, 2016. 84. The Port Authority?s own contract documents demonstrate that Fore was not required to submit certi?cates of responsibility at the time of bid submission. See Ex. 6 at Section 27 (Port Authority?s general conditions). Mississippi law also does not require certi?cates of responsibility to be submitted at time of bid submission. See, Section 600.55 of the Engineering and Construction Procedure Manual from the Bureau of Building for the Mississippi Department of Finance; see also Rule of the Rules and Regulations of the State Board of Contractors. 85. The Port Authority?s Instructions to Bidders recognizes that ?[a]11 applicable laws, ordinances, and the rules and regulations of all governmental authorities having jurisdiction over construction of the Project shall apply to this solicitation and Contract throughout.? See Ex. 1, at 13.8 (Instructions to Bidders). 86. Necaise- did not even submit certi?cates of responsibility for all subcontractors. 87. Fore submitted a valid bid. 24 88. Upon information and belief, the Port Authority arbitrarily and capriciously provided information about Fore?s bid to Necaise to allow Necaise to submit a bid protest before Necaise had even submitted a public records request for the right to review Fore?s bid. 89. The Port Authority arbitrarily and capriciously determined that the portion of Fore?s bid related to hot mix asphalt and electrical work could not be ?properly evaluated by the Port Authority or performed by Fore.? 90. The basis of the Port Authority?s arbitrary and capricious determination was the result of unveri?ed and unsupported speculation. The Port Authority arbitrarily and capriciously decided to not seek an explanation from Fore concerning Fore?s hot mix asphalt and electrical work even though the Port Authority previously requested other information from Fore on February 3, 2016, concerning other issues with Fore?s bid, and the Port Authority concedes that Fore?s subsequent response on February 3, 2016, satis?ed the Port Authority?s request. 92. The Port Authority arbitrarily and capriciously refused to consider Fore?s letter of February 12, 2016, concerning Fore?s hot mix asphalt work and electrical work. Just one week prior, on February 5, 2016, the Port Authority considered information from Necaise concerning the alleged de?ciency of Fore?s bid. Upon information and belief, the Port Authority considered additional information submitted after bid opening concerning the Section 3 requirements for Necaise?s bid. 25 93. Fore?s letter concerning the hot mix asphalt work and the electrical work was not required by Mississippi law. At the very least, though, Fore?s letter should have assuaged any concerns of the Port Authority. 94. The Port Authority arbitrarily and capriciously determined that certain defects in Necaise?s bid could be waived, yet the Port Authority arbitrarily and capriciously determined that Fore was not entitled to similar treatment. 95. A purpose of public discussion is to alleviate the concerns of the public that a public agency is arbitrarily and capriciously awarding public contracts. 96. The Port Authority arbitrarily and capriciously decided to reject Fore?s bid prior to an open meeting and without any public discussion. The Resolution rejecting Fore?s bid was prepared prior to a vote even taking place. 97. The Port Authority?s decision to discuss the bids in private and/or in executive session is a violation of the Open Meetings laws. See, Miss. Code Ann. 25-41-7. 98. The Port Authority arbitrarily and capriciously ignored the recommendation of its own counsel in rejecting Fore?s bid. Indeed, counsel for the Port Authority recommended that the Project be rebid as opposed to an award of the contract being made. The Port Authority did not heed that recommendation. 99. The Port Authority arbitrarily and capriciously rejected Fore?s bid. 100. The Port Authority failed to present the substantial evidence necessary to reject Fore?s bid. COUNT 11 Port Authority arbitrarily declined to reiect Necaise?s bid 26 iOl. All prior paragraphs are incorporated as if stated herein. 102. The Port Authority was required to reject any bid from a contractor that was not quali?ed as a Section 3 contractor. 103. Fore indiSputably is a Section 3 contractor. 104. The Port Authority itself determined that Necaise was not a quali?ed Section 3 contractor. 105. Nonetheless, the Port Authority declined to reject Necaise?s bid. 106. The Port Authority has stated that one of the reasons the Port Authority rejected Fore?s bid is because Fore did not submit certi?cates of responsibility for all contractors at time of bid submission. Necaise did not submit certi?cates of responsibility for all contractors at time of bid submission either. Yet, the Port Authority is holding Fore to a different standard than Necaise. 107. For additional reasons set forth in prior paragraphs and in Fore?s bid protests, Necaise?s bid should have been rejected. 108. The Port Authority arbitrarily and capriciously declined to reject Necaise?s bid. 109. The Port Authority failed to present the substantial evidence necessary to allow the Port Authority to accept Necaise?s bid. COUNT Port Authority arbitrarily determined that Necaise was the best bidder 110. All prior paragraphs are incorporated as if stated herein. 27 gr vu? 111. Outside of unsupported speculation, the Port Authority provided no speci?cs as to why Necaise was determined to be the best bidder. 112. The Port Authority arbitrarily and capriciously determined that Necaise was the best bidder. 113. The Port Authority failed to present the substantial evidence necessary to demonstrate that Necaise was the best bidder. WHEREFORE, PREMISES CONSIDERED, Plaintiff W.C. Fore Trucking, Inc. prays that this Court reject Necaise?s bid for the Phase 2 contract and award the Phase 2 contract to Fore as the lowest and best bidder. In the interim, and until this Court can convene an expedited hearing, Fore requests that this Court stay the contract award to Necaise. In the alternative, Fore requests that this Court award Fore compensatory damages and consequential damages for lost pro?ts in the approximate sum of $8,944,000. Fore further prays that all costs of this action be assessed to the Defendants, and for such other and further general relief as it may be entitled to in law or equity, including attorneys? fees, prejudgment interest, post-judgment interest and any and all other relief. DATED: March 2, 2016. i Respectfully submitted, W.C. FORE TRUCKIG, INC. BY: 28 ., One of Its Attorneys OF COUNSEL: BRUNINI, GRANTHAM, GROWER HEWES, PLLC SAMUEL C. KELLY, MSB N0. 7496 PO. Drawer 119 Jackson, MS 39205 Telephone: (601) 948-3101 Facsimile: (601) 960-6902 skelly@brunini.c0m TAYLOR B. MCNEEL, MSB No. 102737 PO. Box 127 Biloxi, MS 39533?0127 Telephone: (228) 435?1198 Facsimile: (228) 435-0639 tmcneel@brunini.c0m 29