PHOENIX โ The State Court of Appeals threw out the latest legal objection to a high-altitude balloon launching facility in Pima County, saying challengers waited too long to sue.
In a unanimous ruling Monday, a three-judge panel concluded that three individuals represented by the Goldwater Institute do have legal standing to contest a no-bid contract awarded by Pima County to design and build a facility for World View.
The judges said the allegations that the contract was an illegal expenditure of public dollars was sufficient to give them their day in court. But the judges declined to decide the merits of the claim.
Appellate Judge Karl Epplich, writing the decision, pointed out that the architect and the contractor already had been paid. More to the point, the judge noted that the facility is complete.
And Epplich said itโs no oneโs fault but the Goldwater Institute that the case cannot go forward.
โThe taxpayers could have preserved the possibility of a meaningful remedy by seeking to temporarily enjoin performance of the disputed contracts pending the outcome of the lawsuit,โ the judge wrote. โThey did not do so, however, despite ample opportunity.โ
Attorney Timothy Sandefur, representing the Goldwater Institute, acknowledged he did not seek a restraining order.
But Sandefur said he will seek Supreme Court review, saying the appellate judges ignored a crucial legal issue: The decision of the county to accept free services from the architect and the contractor ahead of the no-bid contracts they eventually were awarded.
โThatโs the essence of this case,โ he said.
โ(County Administrator Chuck) Huckelberry hired his cronies because they give him freebies and they know people,โ Sandefur said. โAnd so people like you and me, we canโt compete if we were contractors because we donโt know the right people and canโt afford to give freebies.โ
But Huckelberry said the hiring of the two firms was justified, saying they were โwell qualifiedโ in building the special kind of project at issue here. Huckelberry also said these werenโt firms he chose but were specifically recommended by World View. And Huckelberry said it was in the public interest to select these firms, which have both previously done business with the county, without going through the extensive bidding process.
โWorld View needed a facility to be completed by December of the year it was selected,โ he said. โThese are the only two firms that could deliver in that time frame. So itโs either lose World View to Florida or select these firms.โ
This is the second lawsuit the county has won against Goldwater in its efforts to challenge the project and, specifically, the countyโs involvement.
State courts ruled last year that the county did nothing wrong when it did not seek bids for a site that ultimately became the World View high-altitude balloon launching site.
At the heart of both legal battles is a lease between Pima County and World View, which wanted a site to launch balloons that would carry individuals to the edge of space. The approximately $15 million deal included not only the lease of a 12-acre county-owned site but also construction of a launch pad and headquarters for the company.
In the earlier lawsuit, Goldwater specifically challenged the countyโs decision to lease the property to World View without going through competitive bidding. In that case, however, appellate judges said that a separate law provides an exemption from bidding requirements when counties are trying to lure a specific company to an area.
Now Goldwater is seeking to undermine the money paid to design and construct the facility.
That goes to the January 2016 decision by the Board of Supervisors to not only approve the World View project but also to hire Swaim Associates Ltd. to design it and Barker-Morrissey Contracting Inc. for construction.
The facility was certified for occupancy in December of that year, with Swaim paid $667,709 and Barker-Morrissey getting $12.3 million.
In April 2016, Goldwater filed suit claiming that the selection of the two firms was โpredeterminedโ and violated competitive procurement requirements.
