City, 8Pine seek dismissal of Miron Construction lawsuit

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By Jessie Lin

USA Today Network

The City of Green Bay and construction company 8Pine framed Miron Construction‘s lawsuit against them as the attempt of a “disappointed bidder” to use the courts for the company’s gain, according to two briefs filed Jan. 12 at the Brown County Courthouse.

They asked that the temporary injunction be lifted and Miron’s motion be dismissed.

The lawsuit is in regard to bids to construct a pavilion for Leicht Memorial Park’s renovations in downtown Green Bay.

The city and 8Pine said the lawsuit and the request for the court to order only Miron be given the contract are contrary to the public interest, building on briefs they filed the week before that denied Miron’s allegations.

“Miron’s motion elevates bidder dissatisfaction over the public interest in efficient, timely completion of public works. Equity does not favor such an outcome,” the city’s seven-page brief said.

Dave Voss, Miron Construction’s executive chairman, did not immediately respond to phone and email requests for an interview, nor did a partner at the law firm DeWitt, which is representing Miron Construction.

Parks Director Dan Ditscheit in July told the Parks Committee that the city expected construction on a newly designed pavilion to begin “early next spring, maybe late winter.” For that purpose, the site has been leveled and $5 million sits in the fund balance of Tax Increment District 5 to be used toward a budgeted $9 million Leicht Park Redevelopment in 2026, according to a master report of the city’s 2026 capital improvement projects.

Facilities manager Trista Hobbs in an affidavit also filed Jan. 12 in court reiterated what City Council President Brian Johnson had flagged months prior. The millions of dollars in the tax increment district will disappear with the tax district after the tax district’s Dec. 21 expiry date, Hobbs said in the affidavit.

Both defendants pointed to this date to say that the pavilion would need to be finished by the end of November for the contractor to be paid in time using that money. 8Pine placed responsibility for the project’s potential noncompletion on Miron, saying delays in awarding a contractor to build the pavilion “might even jeopardize the project altogether.”

The city’s Redevelopment Authority was presented with the results of the bid at its Dec. 9 meeting, which Voss contested during that meeting. The Parks Department recommended awarding 8Pine the contract based on a $4.9 million bid. Miron Construction’s bid of $5.1 million was presented as the second highest bid.

Miron Construction submitted its 18-page complaint two days later, saying Voss had approached the city’s project manager to express concerns about the bidding process. According to the complaint, the project manager “did not disagree” that 8Pine had submitted a required addendum after the bid had closed. Miron argued that 8Pine could not be considered “the lowest, responsible bidder.” It requested that Brown County Judge John Zakowski bar the city from entering into any contract for the project except with Miron.

Zakowski issued a temporary restraining order to keep the city from awarding the contract to any company other than Miron Construction ahead of a Jan. 23 hearing.

The city agreed that 8Pine did not submit a required addendum until after the bidding closed. It saw that, however, as within its rights under state law to waive technical irregularities.

Hobbs in her affidavit said that in her experience, signed addenda after bids were opened was “not uncommon.”

An affidavit by Madelyn Roth, a project manager at 8Pine said the addendum in question was submitted at 2:38 p.m. Dec. 4, which Hobbs acknowledged by email at 2:44 p.m. The bid closed at 2 p.m. Dec. 4.

Miron “seeks to enlist this court as a super-bid reviewer to halt a municipal contracting process based on a hyper-technical disagreement over bid formality resulting from a bidder’s submission of addenda acknowledgments 38 minutes after bid closing. Wisconsin law does not permit judicial intervention under these circumstances,” the city’s brief said.

In the view of 8Pine, according to its brief, the company speculated Miron Construction’s lawsuit was for one of two reasons. There was the possibility the lawsuit was to “exact revenge against a former employee-turned-competitor.” 8Pine CEO Bert Pieper who was a former employee at Miron Construction. Or, 8Pine said in its brief, it was “to secure through litigation what Miron could not get through the ordinary bid process.”

The city argued Miron could not show it could reasonably succeed in its lawsuit based on the claims the company has made. The city cited case law that it said showed “attempts by disappointed bidders to weaponize technical omission to overturn municipal decisions” had been rejected in court time after time.

The defendants argued against Miron’s claims of irreparable harm in the event it would not be awarded the contract. 8Pine’s brief said the claim, if allowed to pass in court, would cause “every disappointed bidder” to be able to make that claim and “preliminary injunctions would become routine in public-works disputes, rather than the extraordinary remedy Wisconsin law requires.”

Giving Miron the pavilion contract “would only disserve taxpayers,” the city said in its brief, arguing that Miron had not alleged that there’d been “arbitrary or unreasonable conduct” to be able to get relief from a court.