Harrison County

Low bidder W.C. Fore sues port over losing $44 million contract

COURTESY WARREN PAVING 
 This aerial of West Pier construction was shot in mid-March. W.C. Fore Trucking Inc. has filed a lawsuit over losing the $44 million contract for work on the pier's east side. Necaise Bros. Construction Co., which secured the bid, also has the contract for ongoing construction work on the pier's west side.
COURTESY WARREN PAVING This aerial of West Pier construction was shot in mid-March. W.C. Fore Trucking Inc. has filed a lawsuit over losing the $44 million contract for work on the pier's east side. Necaise Bros. Construction Co., which secured the bid, also has the contract for ongoing construction work on the pier's west side.

GULFPORT -- W.C. "Cotton" Fore has filed a lawsuit against the state port, asking a Circuit Court judge to award him a $44 million port contract as the "lowest and best bidder," or $8.9 million in profits he will lose because the second-lowest bidder got the job.

Fore asks that a judge suspend the contract award to second-lowest bidder Necaise Bros. Construction Co. until an expedited hearing is held.

"Mississippi's public authorities, such as the port authority, owe all bidders a duty of good faith and fair dealing to consider all bids equally, honestly and without favoritism or advantage to any bidder," the lawsuit says. "The port authority's acts and omissions breached these duties and violated Mississippi's procurement statutes and applicable legal principles."

Fore appealed to Circuit Court after the port's Board of Commissioners rejected his bid protest. The board contended Fore failed to list all his subcontractors and provide their certificates of responsibility with his bid. Fore maintains state law did not require the information on his two subcontractors because their work represented no more than 10 percent of his total bid. He said the port wrongly assumed the subcontractors would be paid more than 10 percent of the bid price and never asked Fore to remedy the issue.

The lawsuit also accuses the port of giving James Necaise of Necaise Construction information about Fore's bid before Necaise filed a public-records request. Necaise filed the first bid protest before the contract was awarded, saying he believed Fore's bid failed to meet requirements.

Fore's lawsuit says Necaise failed to list all his subcontractors and fell short of the number of required low-income employees.

Port director Jonathan Daniels said he has not seen the lawsuit and could not comment on its contents. However, Daniels did say the Mississippi Development Authority, which oversees the port, determines whether requirements for low-income workers are met. Daniels said the MDA found those requirements were satisfied.

The bid involves expansion of the port's West Pier with $570 million in federal money meant to create jobs after 2005's Hurricane Katrina. The contractor will elevate the east side of the West Pier to 14 feet -- the elevation reached on the west side -- and install rail lines and water, sewer, drainage and electrical systems. The work is supposed to be finished in June 2017.

The lawsuit says the port's board should have discussed the initial bid award in February in an open meeting. Instead, the board excluded the public from the discussion under the "prospective litigation" exemption to the state's open-meetings law. The board's actions, the lawsuit says, violated the open-meetings law.

Port officials had decided before the meeting, the lawsuit says, to award the contract to Necaise, directing attorneys to draft a six-page, single-spaced resolution that rejected Fore's bid and gave Necaise the contract.

"Despite the fact that the port authority was considering awarding a contract in excess of $43,000,000, there was zero public discussion by the port authority as to why Fore's bid should be rejected and the contract should be awarded to Necaise," the lawsuit says. "No discourse. No debate. No back and forth for the public to see how the commissioners reached their votes."

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