On August 7, Pima County Superior Court Judge Catherine Woods handed the Goldwater Institute yet another win in its case against Pima County for its funding of World View. Pima County had sought a partial summary judgment in the case.
The County had sought the summary judgement on Count 3; mandatory competitive bidding, and Count 4; Pima County procurement requirements.
The County continues to expend public resources on behalf of the private company despite the fact that their own attorney, Regina Nassen had advised them in October 2016 that she did not have confidence the County could prevail.
To compound the difficulties, according to World View spokesman, Andrew Antonio, in an email dated July 25, 2017, World View still does not have the appropriate FAA clearance to launch from the Pima County site. “As with any new vehicle and launch facility, we are continuing to develop and perfect our protocols and procedures,” wrote Antonio. “In parallel, we are working with the appropriate agencies and authorities to move forward with launch operations from Spaceport Tucson in the near future. We will happily provide more detailed information as updates emerge.”
In this video, World View owner Taber MacCallum tells Pima County Supervisor Ally Miller that the “licensing of the launchpad is something that World View is responsible for, and we will obviously be working with the owners of the launchpad (Pima County taxpayers) to make that happen.” According to experts, it is unlikely that World View will receive approval from the FAA in the near future, if at all, due to its proximity to Tucson International Airport and Davis Monthan Air Force Base. It was forced to launch from Page, Arizona earlier this year.
One Arizona developer, who asked to remain unnamed said, “I couldn’t get anyone to lend me money to build on land that wasn’t zoned for housing, but these folks get $15 million without knowing whether they could get FAA clearance? How could that happen? What was the emergency then?”
The developer was referring to the fact that Pima County declared that an emergency forced them to bypass the normal procurement requirements when selecting a builder for the World View project.
“This ruling allows our claims involving the design and construction contracts to move forward. The County will no longer be able to avoid discovery,” said Goldwater attorney Jim Manley in an email. “That means taxpayers will finally have a chance to peek behind the curtain and understand how this deal went down.”
“The County has appealed the judge’s earlier ruling that the lease deal with World View violated state law; that judgment is stayed pending appeal,” advised Manley.
The Minute Entry for the August 7 ruling, itemizes Woods’ ruling:
1) The defendants failed to establish that the claims raised in Counts 3 & 4 of the Complaint are moot.
2) By their own concessions, the defendants acknowledge that the work to be performed by Swaim Associates, Ltd. and Barker Morrissey Contracting, Inc. has not been completed, nor have the service providers been fully paid for the services the County engaged them to perform.
3) Even if the County had proven that the issues were moot, the Court finds that the issues in this matter present issues of great public importance and/or issues that are capable of repetition yet evading review.
4) For many decades, Arizona case law has recognized that competitive bidding is an issue of great public importance. The same analysis applies to what the County refers to as competitive qualifications-based solicitation processes. In fact, the relevant case that both sides relied upon, Secrist v. Diedrich, 6 Ariz. App. 102, 106 (1967), made a specific reference to public policy when the Arizona Court of Appeals determined that even though the issues were moot, the Court decided to rule upon the underlying issue regarding the competitive bidding statute.
5) The issues raised by Counts 3 & 4 are whether there existed an emergency or impracticability and whether A.R.S. § 34-606 and the requirements of the Pima County Procurement Code allow the Pima County Administrator and the Board of Supervisors to “manufacture emergency or impracticability by agreeing to a compressed time frame, design, or construction.”
6) The contracts at issue raise a legitimate factual question of whether the County truly believed the emergency exception of A.R.S. § 34-606 truly applied or whether invoking the words “public interest and impractical” were a mere pretext for avoiding a standard competitive qualifications-based solicitation process. The Court is referring specifically to the contracts that the defendants attached to their Statements of Fact as Exhibit 1. Instead of citing public interest or impracticality, the County’s own language states that a competitive procurement for this project would be contrary to the County’s interest. There is a legitimate factual question of whether the emergency provisions of A.R.S. § 34-606 and the County code apply to the facts and circumstances in this case.
7) There are questions of fact whether the County’s alleged need for a compressed time frame would merit invoking the emergency procurement provisions of A.R.S. § 34-606 or the associated Pima County Procurement Code.
The case is scheduled to be heard on April 11, 2018.