Vineland in court over power plant demolition contract, asbestos monitoring an issue

VINELAND — The days are numbered for the oldest electrical generating station in the city’s energy portfolio, but what company ends up demolishing it apparently will be decided in state court.

The start on the multi-million dollar project now is subject to a three-way legal dispute. The issue begins with an argument over whether “continuous third-party, perimeter air quality monitoring” is essential to detect potential asbestos releases from the Howard M. Down Generating Station.

R. Baker & Son, a Marlboro-based company, believes it should have gotten the contract that the City Council in June approved for Terra Technical Services Inc., a Pennsylvania company. Baker & Son wants the court to block or void that contract, valued at $6.7 million, and then award the work to Baker & Son at its higher cost estimate.

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The Down Generating Station was built more than a century ago at 211 N. West Ave. and expanded multiple times. The Vineland Municipal Electric Utility has not used it for a long time.

The presence of the cancer-causing mineral asbestos is a given considering its age and uses, but no one knows just how much is there. That uncertainty caused some concerns among bidders on the project, records show.

Baker & Son claims, in a lawsuit filed July 18 in Cumberland County Superior Court, that the demolition plan Vineland accepted is inadequate under professional demolition standards. The city’s choice of low-bidder Terra Technical was “arbitrary and capricious” given the alleged deficiencies, according to its lawsuit.

“The failure to properly remove the asbestos without the on-site continuous third-party perimeter air monitoring in place will pose a clear and present danger to the students in the adjacent child care center and neighbors as well as to the employees of the VMEU,” company Vice President David Baker states in an affidavit attached to the lawsuit.

Attorney Louis Magazzu, who represents Baker & Son, declined comment for this story.

Baker & Son claims its bid, almost $7.5 million, was higher than the winning bid partly because it properly allowed for the costs of potential asbestos issues. The suit adds the city should expect Terra Tech, in the course of the project, to ask for more money as asbestos issues arise.

Ashley Baker-DeGorta, president of Baker & Son, in a June email to the city purchasing agent, administrator, and other officials stated that the Terra Technical submission “is incomplete.” The city “has not done their due diligence” unless its rival for the job is guaranteeing its price will not increase, she adds.

Terra Technical Services Inc., a Downingtown, Pa. company, claims it exactly followed the city’s own bid specifications regarding asbestos. Baker & Son “self-imposed” on itself an air quality monitoring role and took on the associated costs, according to a court filing.

Attorney Paul Bucco, who represents Terra Technical, argues that Baker & Son needed under state law to come to the city before bids were opened if it objected to the specifications. Bucco did not return a call for comment.

“There is no party more equipped than the city of Vineland, with its intimate knowledge of the project, to make the determination of the lowest responsible bidder,” Bucco writes. “As such, this court should not substitute an independent judgment for that of the city of Vineland.”

Vineland, in its own filing on August 4, states that Terra Tech is correct about what the city specifications demanded.

Assistant Solicitor Michael Benson states that Vineland never asked bidders to provide for the kind of air monitoring that Baker & Son says should be a minimum standard. Vineland did not provide comment for this story.

In the filing, Benson states Baker & Son does not qualify under state bidding law to sue. It could have legally objected to how the specifications were drafted prior to the bids being opened but it did not, he tells the court.

The city asked in January for bids, which were opened March 22. Terra Tech, according to its court filings, also provided more information on its plan on April 26 at the request of the city.

In late May, a consulting firm hired to evaluate the submissions recommended to Vineland it hire Terra Technical. All six bidders were notified of the decision.

Originally, according to city bidding documents, Vineland had hoped to have work start in early May and have it completed in 18 months.

Bidders in March submitted a number of questions to clarify what was expected in terms of asbestos removal, especially without knowing how much was present and where.

For example, the city was asked, “Are we to bid on asbestos items that are presumed, not sampled, or assumed?"

The city responded that the contract would be “fixed price,” including asbestos abatement. “Bidders may provide their basis of costs as part of their proposals if they choose,” the city stated.

“How are we to bid items that the quantity is unknown or not listed?” the city also was asked.

The city responded, “It is anticipated that bidders will use the information provided coupled with their expertise and experience from similar projects to develop fixed price cost proposals. Bidders may provide their basis of costs as part of their proposals if they choose.”

Bidders were refused access to inspect asbestos boilers and told they would have to rely on provided photos. The highest bid submitted was about $14.94 million.

Judge Benjamin Telsey has set Sept. 9 to issue a decision in the case. Terra Technical and Vineland both are asking for the case to be dismissed.

Joe Smith is a N.E. Philly native transplanted to South Jersey more than 30 years ago, keeping an eye now on government in South Jersey. He is a former editor and current senior staff writer for The Daily Journal in Vineland, Courier-Post in Cherry Hill, and the Burlington County Times.

Have a tip? Reach out at jsmith@thedailyjournal.com. Help support local journalism with a subscription.

This article originally appeared on Vineland Daily Journal: NJ lawsuit to determine who will lead Vineland power plant demolition