Atlanta Progressive News

(APN) ATLANTA — In a ruling, dated Monday, March 12, 2012, Fulton County Superior Court Judge Cynthia Wright ruled that her court did not have jurisdiction to issue a temporary injunction on behalf of four protesting bidders for concessions at Atlanta’s Hartfield-Jackson International Airport, because they had not yet exhausted their Administrative appeals.

The four companies are SSP, represented by Ken Hodges of Ashe, Rafuse, & Hill; Midfield Concession Enterprises (MCE), represented by Matt Maguire of Balch & Bingham; Takeoff Concessions, representing itself; and Atlanta Airport Restaurants, LLC, representing itself.

Hodges said that SSP had filed a Notice of Appeal and that he would be speaking with SSP regarding whether to appeal Wright’s recent ruling.  Neither Maguire nor Matthews of Takeoff Concessions were immediately available to say whether they would appeal.  

Either way, their ongoing appeal of the concessions contracts still stands, even though the City appears ready to move forward with signing the disputed contracts.

The City’s code of ordinances spells out the steps in the appeals process, but does nothing to prevent disputed contracts from going forward even while appeals are being heard.

As previously reported by Atlanta Progressive News, the four companies filed protests with City of Atlanta Chief of Procurement Officer Adam Smith.  Smith denied those protests on February 22, 2012.

The four companies have now filed appeals with a procurement appeals officer within the City of Atlanta.  However, those appeals are not scheduled to be heard until late March or early April 2012, after the City plans to have already signed the contracts with the winning bidders.

The Court cites the ruling in Mack II v. City of Atlanta, another airport case in 1998, as case law that a losing bidder must exhaust its administrative remedies before a court can provide equitable relief.

The protesting companies have asserted that the City’s internal appeals process is a sham, and SSP, in particular, complained that they do not have the power to take depositions or issue subpoenas.

“Although the City Code does not provide a right to independent subpoena power, this Court urges, in the interest of transparency and public confidence in the process, for the procurement appeals officer to permit Plaintiff to subpoena any additional documents and witnesses Plaintiff deems necessary to pursue its claims,” Judge Wright wrote in her ruling.

For at least the second time, the Court urged the City to review and revisit its own ordinances for procurement and appeals.

“This Court cannot re-write the City Ordinance.  However, this Court urges the City to review its processes and procedures related to bidding, letting of contracts, and review and appeal of decisions made pursuant to their processes and procedures.  Undoubtedly, a City cannot spend months developing a record prior to rendering a decision, or the business of the City would grant to a halt,” Wright wrote.

The Mayor signed the legislation authorizing the City to enter into the contracts on January 05, 2012.

On January 17, Fulton County Superior Court Judge Constance Russell ordered that the City provide all requested non-exempt public records to the losing bidders, and the Court extended the deadline for the losing bidders to file their protest.

Prior to that, under city code and its current practices, the protesters’ time to file a meaningful protest would have already expired, Judge Wright wrote in an earlier ruling.  Wright noted that because appeals were due within ten days after the selections were announced, but the contracts were not approved by the Mayor until after the ten days were expired, that there was a problem.  It was especially problematic when the City also refused to produce the records until after the Mayor signed off on the legislation approving the contracts, meaning that even if protesters filed an appeal within the ten days, they would have little or no supporting documentation with which to make claims.

In the current ruling, Wright noted that the City has resisted producing records.

“In an effort to promote public confidence in the process, as well as in an attempt to ensure that contracts are awarded through a process consistent with Georgia law and City Ordinance(s), this Court, and others, have required the City to produce voluminous records related to the requests for proposals.  Although, initially, the City vehemently protested the production of records, and only after entry of several Court Orders, the City produced and continues to produce records related to scoring the proposals and other documents related to the bid process,” Wright wrote.

The City argued that delaying its ability to open a new terminal would result in financial losses for the City, and requiring it to open with some restaurant spaces vacant would result in setting a bad impression for travelers.

Wright said she had to balance those concerns with the rights of taxpayers and of bidders to have a fair bidding process.

She noted that the City had filed Stipulations with the Court, signed by all successful bidders, that even if the contracts are executed, that the legal rights and remedies of the various Plaintiffs would survive.

SSP argued that even if they later prevailed and took the place of the current winning company, that it would not be an adequate remedy at law.  “However, that issue is not before this Court,” Wright ruled.

SSP also has a pending Open Meetings Act dispute against the City of Atlanta, arguing that the closed meetings of the Selections Committee should have been open.

(END/2012)