HAMPTON TECHNOLOGIES INC GORDON GROUP ELECTRIC v. FARFIELD COMPANY (2011)

Emergency Application for Stay

DISSENTING STATEMENT

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Emergency Application for Stay

DISSENTING STATEMENT

50% for cost, 45% for technical, and 5% for disadvantaged business submissions.   The scoring summary revealed that Farfield received a weighed technical score 11

1. The petitioner makes a strong showing that he is likely to prevail on the merits.

2. The petitioner has shown that without the requested relief, he will suffer irreparable injury.

3. The issuance of a stay will not substantially harm other interested parties in the proceedings.

4. The issuance of a stay will not adversely affect the public interest.

Id. at 808–09.   We additionally noted, however, that a court, “when confronted with a case in which the other three factors strongly favor interim relief [,] may exercise its discretion to grant a stay if the movant has made a substantial case on the merits.”   Id. at 809.   We further observed, “The requirement that the applicant for a stay show that it is likely he will prevail on the merits should not be an inflexible rule.   This criterion must be considered and weighed relative to the other three criteria.”   Id. n.8.

Before this Court, Gordon claims that an immediate stay of the denial of its protest of the award is necessary

Immediate relief in the form of a stay is critical because absent a stay, DGS intends immediately to proceed with the award of the electrical contract to Farfield, and Farfield intends to commence work on the project, in circumstances where

(i) DGS improperly applied criteria that was not set forth in the mandatory or nonmandatory requirements of its Request for Proposals to the detriment of Gordon;  (ii) DGS violated Gordon's due process rights by refusing, on Right to Know Law grounds, to disclose substantive information about the scoring of Gordon's and Farfield's proposals;  (iii) DGS improperly concluded that Gordon's bid protest supplement identifying false representations set forth in Farfield's proposal, which was submitted to DGS less than twenty-four hours after Gordon obtained documentation demonstrating that the representations were false, was untimely;  and (iv) DGS improperly concluded that Farfield's false representations regarding the licensure of its head project manager on the project were not false or material to its proposal, in contravention of DGS's Request for Proposal.

Emergency Application for Stay at 2.

Although Gordon cannot definitively show that it will prevail on the merits, I conclude that a stay is warranted after considering the three other Process Gas criteria, especially when remembering that Gordon was the low offeror and considering the challenge raised by Gordon in its supplemental protest regarding the suspended license of Farfield's COO. First, I must address the alleged untimeliness of the supplemental protest.   I refuse to disregard the supplemental protest because it was filed one day late, especially when the original protest was timely and the timeliness criteria of the statute does not reference the timeliness of supplement