A contractor that lost its bid to demolish Burlington High School is suing the school district. Attorneys for the Massachusetts company argued in court on Friday that the district illegally chose the winning bid.
American Environmental filed its lawsuit in early January, claiming that the selection of EnviroVantage, a New Hampshire demolition contractor, didn’t meet the district’s own bid requirements.
The company’s attorneys sought a preliminary injunction at Friday’s hearing in Chittenden County Superior Civil Court in Burlington. If granted, the injunction would order the school district to terminate its contract with EnviroVantage, which won the bid for demolition and environmental remediation of the high school site.
Attorneys and an environmental consultant for the school district argued in court that an injunction would cause delays to the school construction project.
“The public interest needs to be recognized here,” said William Ellis, an attorney for the district. “The public interest is getting a new high school built, and if this continues and this injunction is granted, the whole schedule of trying to get a school built by August 2025 is off the rails.”
Judge Helen Toor heard arguments from both sides in a nearly two-hour hearing on Friday. Toor said she would issue a decision “as soon as possible,” noting that, “I understand there’s a time crunch.”
The lawsuit, filed Jan. 5 by Darren Misenko, an attorney for American Environmental, alleges that the district “violated Vermont law by failing to properly ‘consider all bids submitted by prequalified bidders’ as mandated by (state law) and failing to award the Project contract ‘to the lowest responsible bid conforming to specifications.’”
According to the lawsuit, the school district issued a request for qualifications in September 2022 seeking demolition contractors for the high school project. One of the criteria in the request was that bidders have experience with “hazardous materials abatement” in large buildings, and bidders were asked to provide five project examples.
Attorneys for American Environmental argued on Friday that EnviroVantage had listed only four, and none met the project requirements, which included previous work of a similar cost and scale.
Misenko noted in the injunction motion that EnviroVantage and American Environmental were the two lowest bidders at $11.4 million and $11.7 million, respectively.
The attorney also argued in his motion that awarding the contract to EnviroVantage does not “serve the best interests of the public” because the company is not qualified to perform the work in a project that includes “the remediation and abatement of hazardous materials at a high school.”
EnviroVantage could not immediately be reached for comment Friday afternoon.
Michael Sams, another attorney for American Environmental, made the bulk of the oral arguments for his client on Friday. He pointed to a state law that applies when a school construction project exceeds $500,000. It says that construction contracts “shall be awarded to one of the three lowest responsible bids conforming to specifications.”
Sams stressed the importance of the word “shall” in that law as well as the phrase “conforming to specifications” and argued that the district’s chosen bid did not do so.
But that same state law also says that a school board “shall have the right to reject any or all bids.” Ellis used that in his arguments and said the board saw any perceived lack of qualifications by EnviroVantage as “informalities.”
During the hearing, Toor seemed skeptical of that argument. “But how do these qualify as informalties?” she asked in response. “These seem pretty substantive to me.”
The school district wants to start demolition of the Institute Road campus this month as part of its $190 million project to build a new high school. The district filed its own lawsuit in U.S. District Court against Monsanto related to chemical contamination at the site. That legal battle temporarily halted the district’s construction timeline when Monsanto attorneys filed a motion to stop demolition in order to inspect the buildings. Attorneys for both sides reached an agreement that demolition could begin later this month.
Burlington High School has been closed since the discovery of contamination from polychlorinated biphenyls, or PCBs, a hazardous group of chemicals used until the 1970s and often found in window caulking, glazing and other building materials.
The district’s construction cost estimates list $21 million for demolition and remediation. The district hopes a successful lawsuit against Monsanto would help to pay for those costs as well as the building construction.