V.I. Supreme Court extends injunction barring government from signing bid

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The V.I. Supreme Court has extended a partial temporary injunction entered last month and a temporary restraining order originally issued by the V.I. Superior Court in December until its justices fully adjudicate an appeal filed against the V.I. government by Tip Top Construction that prohibits the signing of a government contract to do road work on the Main Street project on St. Thomas.

In its motion, Tip Top requests that the court enjoin the government from signing a contract with Island Roads Corporation and from authorizing Island Roads Corporation to do any work on the Main Street enhancement, a highway project using federal funds that "encompasses the reconstruction of Main Street on St. Thomas."

In the opinion handed down from the bench Friday, Chief Justice Rhys Hodge along with Associate Justice Maria Cabret and Associate Justice Ive Swan ruled that Tip Top Construction showed that the balance of equities favors a stay in this matter, and it has shown a substantial case on the merits of the action.

Before making a ruling, the Supreme Court said they considered whether the litigant has made a strong showing that it is likely to succeed on the merits; whether the litigant will be irreparably injured absent a stay; whether issuance of the stay will substantially injure the other parties interested in the proceedings; and where the public interest lies.

In a Nov. 8, 2013, memorandum awarding the contract to Island Roads, the government's evaluation committee stated that it received an application from Tip Top that was 20 percent lower that the engineer's estimate of $10.4 million.

However, the government committee also said that Tip Top's bid should be rejected simply because of a large number of items submitted that showed significant variance in their proposed bid and the engineer's estimate.

A number of factors can be taken into account in the awarding of a government contract, including project cost, bidders' past performances on other contracts and bidders' experience and ability to complete the contract.

The justices concluded that based on the evidence, they can not determine that proper consideration was given to the mathematically unbalanced bid in this case, and that Tip Top Construction, in addition to establishing a balance of the equities in its favor, has shown a substantial case on the merits so as to warrant issuance of an injunction pending appeal.

According to the Supreme Court opinion, the Superior Court found that the government would not suffer any harm from granting a preliminary injunction; that public confidence in the procurement process is imperative in a democratic society; and that the public would benefit from careful consideration of plaintiff's claims involving a bid nearly $2 million less than the winning bid.

"Thus, at least at this preliminary stage in this appeal, the balance of the equities favor an injunction pending appeal," the Supreme Court opinion reads.

For years, Tip Top Construction has completed a number of road and structure projects in the territory. They also were at the center of a stalled capital improvement project at Fort Christian in St. Thomas that recently was resolved. The fort closed in 2005 for a $3.2 million project that was expected to take less than a year.

When the contractor moved in, they found more significant structural damage along with human remains in the walls that led to a number of change orders, a $2 million increase in added cost and a contractual dispute with the government that ended up in court.

The government won the Fort Christian lawsuit, and government agencies involved are aiming to finish all of the work by the end of this fiscal year to allow for open access to the public for tours for the first time in almost 10 years.

- Contact reporter Fiona Stokes at 714-9149 or email fstokes@dailynews.vi.

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