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By Kent Holland, J.D.
ConstructionRisk, LLC

A vendor/installer of artificial turf (FieldTurf) for athletic fields sued the architect of record that prepared bid specifications for a university that could not be met by that vendor but allegedly could be met only by a competitor vendor (A-Turf) for whom the specification was a disguised sole source. The general contractor for the project chose to use FieldTurf, but the architect rejected samples submitted by the general contractor, claiming the specifications were not met.   The GC terminated its contract with the FieldTurf vendor and used A-Turf instead.   Although the appellate court noted that “the laws requiring competitive bidding were designed to benefit taxpayers rather than corporate bidders,” it nevertheless reviewed the plaintiffs detailed allegations that the architect acted in bad faith, and concluded that there may be a reasonable theory of recovery against the architect, and therefore reversed the lower court’s dismissal. Chenango Construction v. Hughes Associates, 128 A.D.3d 1150, 8 N.Y.S 3d 724 (2015).

Tortious Interference with Contract

The matter will have to go to trial. The court appeared concerned about the allegations that the architect alleged “used specifications that were narrowly drafted to specifically favor A-Turf and did so despite protests from plaintiff” on at least two additional projects. The court was also potentially concerned by the fact that the plaintiff’s FieldTurf product had been successfully used for identical purposes on numerous professional and collegiate sports facilities.   The “Plaintiff contends that [Architect] was in contact with A-Turf and plotted ways to favor A-Turf while excluding plaintiff and other competitors.”

Comment

Long ago when I was an attorney in the Office of General Counsel at the U.S. Environmental Protection Agency (EPA) I had responsibility to advise and concur on EPA Regional decisions on bid protests under the wastewater treatment construction grant program. Numerous bid protests from equipment suppliers complained that design professionals were getting around the requirement to write specifications permitting open and free competition by instead writing specifications that created only the appearance of allowing competition when in fact they were what we called a “disguised sole source” because only one vendor could possibly meet all the detailed design features. If I can ever locate a copy of an article I wrote almost 30 years ago about the harm caused by disguised sole source procurement, I will reproduce it in one of the next issues of this newsletter. I don’t know anything about the facts and merits of this particular case, but I believe it is good that the vendor gets the opportunity to have its day in court so that the merits can be fully reviewed and decided.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 17, No. 7 (October 2015).

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