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Judge dismisses wastewater tunnel lawsuit against city

Tuesday, November 24, 2009 by Austin Monitor

District Judge John Dietz dismissed a lawsuit Monday against the City of Austin by Fairfax Tunnel Partners of Beachwood, Ohio, over the proposed award of a contract to construct the 3.5-mile Downtown Wastewater Tunnel. The Austin Water Utility says the super-sized sewer will accommodate continued growth in and around downtown Austin for the next 50 years.


Dietz ruled that the lawsuit was not ripe, declaring that because Fairfax had jumped the gun on filing the case before the contract was awarded, the court did not have jurisdiction. Although they may file the suit again after Council takes action—presumably on Dec. 10, the date to which the matter was postponed—no action would be appropriate before that, he said.


Last Thursday, the judge granted Fairfax a Temporary Restraining Order based on the company’s assertions that the city staff had not followed its own rules in recommending that the Council award the contract to SAK/Quest Joint Venture of O’Fallon, Mo. The Law Department then asked Council to put off the matter until lawyers could deal with the restraining order.


SAK/Quest was the low bidder on the project at $32 million plus a $3 million contingency amount.


Fairfax’ bid was about $11 million higher. In its petition, Fairfax claimed, among other things, that SAK/Quest did not have sufficient experience in building tunnels to be considered for the bid. In addition, Fairfax alleged that SAK/Quest’s bid “grossly inflates the value of pipe fittings on the project so that it can meet the 2.37 percent WBE (woman business enterprise) requirement.”


Assistant City Attorney Robin Sanders argued on behalf of the city. Clark Aspy of Naman, Howell, Smith & Lee represented the plaintiff. Aspy asked Dietz whether his honor would keep the case if it were re-filed so the attorneys would not have to educate another judge on the issues involved. Dietz agreed to assign the case to himself if the action is re-filed.

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