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Textar Painting Corp. v. Delaware River Port Authority

March 29, 1996

TEXTAR PAINTING CORPORATION, PLAINTIFF,
v.
DELAWARE RIVER PORT AUTHORITY, A JOINT PUBLIC CORPORATE INSTRUMENTALITY OF THE STATE OF NEW JERSEY AND THE COMMONWEALTH OF PENNSYLVANIA; JUPITER PAINTING CONTRACTING CO., INC.; MANGANAS PAINTING COMPANY; DYNAMIC PAINTING CORPORATION; AHERN PAINTING CORPORATION; AHERN PAINTING CONTRACTORS; AND GEORGE CAMPBELL PAINTING CORPORATION, DEFENDANTS.



Orlando, A.j.s.c.

The opinion of the court was delivered by: Orlando

CIVIL ACTION

ORLANDO, A.J.S.C.

This is an action in lieu of prerogative writs, filed by Textar Painting Corporation (hereinafter Textar), to enjoin the Delaware River Port Authority (hereinafter DRPA) from rejecting its bid to paint the Commodore Barry Bridge because Textar does not possess a QP-1 and QP-2 certification from the Painting Contractor Certification Program (PCCP) of the Structural Steel Painting Council (SSPC).

The DRPA is a public entity authorized by Congress and created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania. The DRPA is responsible for the operation and maintenance of four major bridges; the Betsy Ross Bridge, the Ben Franklin Bridge, the Walt Whitman Bridge and the Commodore Barry Bridge. The Commodore Barry Bridge spans the Delaware River between Chester County, Pennsylvania and Gloucester County, New Jersey.

During the last several years the Commodore Barry Bridge has begun to exhibit signs of coating failure and paint deterioration. The DRPA, therefore, engaged a nationally recognized consultant, KTA-Tater, to evaluate and prepare contract specifications for the required maintenance work on the Commodore Barry Bridge. KTA-Tater recommended that the deteriorated areas of the Bridge receive spot painting and the paint coating on the steel curved barrier along both sides of the entire length of the bridge be removed and replaced. Since the project requires the removal, collection and disposal of lead paint, KTA-Tater recommended that, in order for a bidder on the project to be deemed qualified the bidders must possess a QP-1 and QP-2 certification from the SSPC.

The SSPC is an industry group that establishes standards by which bridges are cleaned and painted. The group is composed of a consortium of owners, engineers, painting contracting firms and suppliers. The group develops standard specifications for the removal of coatings and painting of bridges. Most technical requirements for coatings that are set forth in the specifications for the painting of bridges refer to standards established by the SSPC.

During the late 1980's there was recognition of the harmful effects which lead paint had on the health of humans and on the environment. This understanding led to comprehensive regulatory oversight affecting the performance of lead paint removal projects such as that involved with the painting project regarding the Commodore Barry Bridge. Current regulations necessitate that there be programs regarding worker safety, including health monitoring and personal protection, as well as environmental protection which requires containment, removal and disposal of lead paint, along with the monitoring of air, water and soil. The SSPC developed QP-I and QP-2 certifications to improve the quality of surface preparation and coating applications on bridges while at the same time ensuring worker safety and environmental protection.

The QP-1 Certification Program's objective is to determine if a given painting contractor has the personnel, organization, qualifications, procedures, knowledge and capabilities to produce quality surface preparation and coating applications for complex industrial structures. The QP-2 Certification Program is designed to assess the competence of a contractor in order to protect health and safety of workers, as well as the environment, while successfully completing industrial hazardous paint removal projects. The QP Certification Programs also involve a review of the applicant's administrative capabilities by an independent auditor, along with a field audit in which the investigator examines the quality of the work being performed and the safety procedures. The auditors performing these tasks are independent of the SSPC. There is a growing trend among owners and agencies to require that contractors performing work on bridges possess a QP-1 and QP-2 certification. The States of Virginia, West Virginia, Maryland and Connecticut now require QP-1 and QP-2 certifications for bridge painting contractors. The New Jersey Port Authority and recently the New Jersey State Highway Authority required QP-1 and QP-2 certifications for projects.

The DRPA determined that in order for a contractor to be deemed qualified for the Commodore Barry Bridge project, it would need to possess both QP-1 and QP-2 certifications. On December 13, 1995, the DRPA issued an invitation to tender bids for a painting contract of the Commodore Barry Bridge. This notice set forth that a contractor would need to possess QP-1 and QP-2 certifications by January 30, 1996, the date of the bid opening. Any bid without the required QP-1 and QP-2 would be deemed non responsive. Thereafter, the DRPA issued an amended Special Provision 39 which provided that the QP-1 and QP-2 certification could either be full or interim and the date by which such certification would need to be received by the DRPA was extended from the bid opening date of January 30, 1996, to February 9, 1996. On January 30, 1996, the DRPA received the following bids for the painting of the Commodore Barry Bridge:

Textar Painting Corporation $4,829,000.00

Jupiter Painting Contracting Co., Inc. $4,943,000.00

Manganas Painting Company $7,987,000.00

Dynamic Painting Corporation ...


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