The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
This dispute arises from the decision by the Delaware River
Port Authority of Pennsylvania and New Jersey ("DRPA") not to
award a contract to paint the Walt Whitman Bridge to the lowest
bidder, Allied Painting, Inc. ("Allied"). Allied claims that DRPA
violated its procedural and substantive due process rights and
that the decision not to award Allied the contract was arbitrary
The defendant filed the present motion to dismiss, arguing that
Allied has no property interest entitled to either procedural or
substantive due process protection, and procurement decisions of
DRPA are not subject to arbitrary and capricious review and, even
if they are, Allied fails to allege facts supporting such a
The Court will grant DRPA's motion to dismiss both the
procedural and substantive due process claims. The Court will deny, without prejudice, DRPA's motion to dismiss the arbitrary
and capricious claim. DRPA may renew its argument that DRPA's
procurement decisions are not subject to arbitrary and capricious
review at the summary judgment stage.
Allied is a New Jersey corporation engaged in the painting of
buildings and other structures.*fn1 DRPA is a bi-state
agency created by an interstate compact for the purpose of
building and maintaining bridges and ports between Pennsylvania
and New Jersey. Compl. ¶¶ 1-2.
In the fall of 2003, DRPA issued an invitation to interested
parties to bid on a contract for the painting of the Walt Whitman
Bridge. Allied submitted its bid on December 9, 2003, before the
deadline for submission. Along with its bid, Allied presented to
DRPA a security deposit of $500,000.00. Id. ¶¶ 9, 27. When the proposals were opened publicly, Allied's bid was found
to be the lowest. Allied's bid was complete and satisfied the
requirements of the contract offered by DRPA. Since the time of
the opening of the bids, Allied has presented a performance bond
for the remaining value of its bid as required by DRPA. Allied
has previously performed as a subcontractor in the painting of
the Walt Whitman Bridge. Id. ¶¶ 14-16, 24, 27.
On December 19, 2003, representatives of DRPA met with
officials from Allied to discuss the proposal. At this meeting
representatives of DRPA raised concerns that they had with
Allied's ability to perform the contract for the price included
in their bid. In response, Allied explained how it planned to
perform the contract at the price included in the bid and realize
a net profit. Id. ¶¶ 30-31.
DRPA also raised concerns it had with Allied's bonding company.
In response, Allied indicated that it was prepared to provide a
performance bond from another company. DRPA never requested or
compelled Allied to provide the bond from a different source.
Id. ¶¶ 32, 33.
On or about December 24, 2003, Allied orally confirmed to DRPA
that it was satisfied with its original bid and could do the work
for the amount proposed. Subsequently, around January 13, 2004,
the Vice President of Allied contacted the Chief Engineer of DRPA and was told that, in the Chief's view, there
was no reason not to award the contract to Allied. Id. ¶¶
On February 18, 2004, DRPA awarded the contract to another
bidder, Jupiter Painting Contracting Co., Inc. ("Jupiter").
Jupiter's bid was in excess of the bid submitted by Allied. Id.
The Court will discuss in turn the plaintiff's procedural due
process claim, substantive due process claim, and ...