Given that a county-built space-balloon manufacturing facility and launch pad have long since been completed and occupied by the company World View, Pima County was hoping a Superior Court judge would rule in its favor on two counts alleging improper awarding of contracts in an ongoing lawsuit over the deal.
On Monday, Judge Catherine Woods did not oblige, declining to dismiss the two allegations against the county that are part of a larger lawsuit brought in 2016 by the conservative Goldwater Institute.
In an earlier ruling, Woods invalidated the lease deal between the county and World View, which has a facility near the Tucson airport.
The $15 million facilities were “substantially complete” in December and the company moved in shortly thereafter, according to memos from County Administrator Chuck Huckelberry.
“Now that the work is substantially done, any challenge to the procurement of the contractors who did the work is moot,” documents filed by the county in April read.
“There is really nothing meaningful that this court can do in terms of granting relief to the plaintiffs on those claims,” Deputy County Attorney Andrew Flagg argued to Woods before her ruling Monday. “The county can’t go out and competitively solicit services, to design and build a facility that has been completed.”
However, in her ruling Woods noted that, “The defendants (Pima County) by their own concession acknowledge that all of the work … has not been completed, nor have those service providers been fully paid for their services.”
But even if they had been, Woods said the concerns raised by plaintiff Richard Rodgers, who is being represented by the Goldwater Institute, “present issues of great public importance and/or issues that are capable of repetition.”
Citing the need to complete the facility by November 2016, Huckelberry said the county selected the architecture firm Swaim Associates and Barker Morrissey Contracting as the builder without the competitive steps normally required by state and county law, which is allowed in certain cases by an emergency-procurement statute, according to a January 2016 memo summarizing the deal for the Board of Supervisors before its ultimate approval.
State law and county code allow for exceptions to competitive bidding when “a threat to the public health, welfare or safety exists or if a situation exists that makes compliance with this title impracticable, unnecessary or contrary to the public interest.”
“Had the county not used the emergency-procurement clause that’s in the law, World View would be located in Florida,” Huckelberry told the Star Monday.
“That’s a fact, and that justifies the emergency procurement.”
Earlier in the hearing, Flagg argued that the mere fact the deal dealt with competitive bidding is not enough to establish “significant importance,” and that the unique circumstances of the World View project — in which it was setting the construction schedule — are not likely to be repeated anytime soon.
Goldwater attorney Jim Manley, however, pointed out that the county often uses the emergency-procurement statute.
“Here we have a county policy of avoiding competitive solicitations in situations where it is inconvenient, or where it inconveniences a private party like World View,” he said. “Those are issues of public importance.”
In her ruling, Woods seemed open to that argument.
“The court finds that the contracts at issue in this case raise a legitimate factual question of whether the county truly believed that the emergency exception ... truly applied or whether invoking the words public interest and impractical were a mere pretext for avoiding the standard qualification-based solicitation process.”
Huckelberry disagreed that there was any pretext at play in the World View deal, adding that, “The county read the law, and used the law in order to execute the contract in order to meet a bona fide emergency. That’s clearly supported by facts and testimony.”
Huckelberry said he was confident that if those facts are presented at trial, which he hopes is where the case goes from here, the county will prevail.
In February, Woods invalidated the deal when she ruled in Goldwater’s favor on a count alleging that the lease granted World View violated statutory requirements that leases of government property be worth at least 90 percent of the property’s appraised value. The county appealed that decision.
A fourth count, alleging that the deal violated the state constitution’s gift clause, is on hold, attorneys for the county said.
