Empire Paving, Inc. v. City of Groton (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS NO. 103

On May 22, 2013, the defendant, the city of Groton, filed its motion to dismiss on the ground of lack of subject matter jurisdiction.   In support of its motion to dismiss, the defendant filed a memorandum of law in support accompanied by the signed and sworn affidavit of David McCord, the defendant's purchasing agent, a copy of the invitation to bid and a copy of the applicable ordinance 148.   The plaintiff, Empire Paving, Inc., filed its memorandum of law in opposition on June 11, 2013.   The plaintiff's memorandum of law in opposition was accompanied by the affidavit of Earl Tucker III, the plaintiff's vice president, as well as the applicable ordinance 148.   The court heard argument on the motion on June 25, 2013.

BACKGROUND

On May 1, 2013, the plaintiff filed its two-count complaint, which alleges the following facts.   On April 5, 2013, the defendant was accepting bids for the Thames Street Rehabilitation Project, Project Number 04–13 (project), in Groton, Connecticut.   After all of the bids were opened, the plaintiff was the lowest responsible bidder.   The plaintiff's base bid was $4,641,696.   On April 24, 2013, the defendant informed the plaintiff that the defendant had chosen to award the project to B & W Paving and Landscaping, LLC (B & W), who was the second low bidder with a base bid of $4,679,373.70.

The plaintiff further alleges that the notice regarding the bids stated that “the contract will be awarded on the basis of the lowest bid submitted for the Base Bid Only.” Additionally, Groton ordinance 148, § 3(h) provides “in relevant part that contracts and purchase orders shall be awarded to the lowest responsible bidder.”   The plaintiff alleges that the defendant, based upon the defendant's ordinance 148, failed without reason to award the contract for the project to the plaintiff as the lowest responsible bidder.   The plaintiff is seeking an injunction in count one, an order of mandamus in count two as well as money damages, attorneys fees and costs and expenses.

LAW RE MOTION TO DISMISS

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).  “The standard of review of a motion to dismiss is ․ well established.   In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in the manner most favorable to the pleader.”   (Internal quotation marks omitted.)  Lawrence v. State Board of Education, 140 Conn.App. 773, 777, 60 A.3d 961 (2013).

“[B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss ․ [S]ee Practice Book § 10–31(a)(1).”  (Citation omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).

APPLICABLE LAW & ANALYSIS

In the present case, the defendant argues that the court lacks subject matter jurisdiction because the plaintiff lacks standing to bring either a claim for an injunction or writ of mandamus.   The defendant also argues that the plaintiff may not seek monetary damages in this type of action.   The defendant argues that McCord's affidavit shows good reasons why under the circumstances the project was awarded to B & W.

The plaintiff counters that the defendant's officials do not have unfettered discretion in awarding contracts and must follow the bidding rules.   The plaintiff argues that it was the lowest responsible bidder and that favoritism may be inferred because the defendant did not follow its own ordinance when the defendant did not award the project to the plaintiff.   The plaintiff argues that Tucker's affidavit shows that the plaintiff had never failed to complete a project, had worked with the defendant before, was nominated for a paving award by the defendant and has a high bonding capacity.

With respect to the plaintiff's claim for an injunction, the plaintiff must establish that it has standing.  “Standing is the legal right to set the judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action.”  (Internal quotation marks omitted.)   Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

The general rule is that an unsuccessful bidder for a public contract does not have standing to pursue a remedy in the courts.   See, e.g., Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501–05, 467 A.2d 674 (1983).   The Supreme Court “has declared that [a] bid, even the lowest responsible one, submitted in response to an invitation for bids is only an offer which, until accepted by the municipality, does not give rise to a contract between the parties ․ An unsuccessful bidder, therefore, has no legal or equitable right in the contract.   Not unlike any other person whose offer has been rejected, the disappointed bidder has no right to judicial intervention.”  (Citations omitted;  internal quotation marks omitted.)  Id., 501–02.

“If an unsuccessful bidder has standing to bring a claim against a municipality, therefore, such standing must be derived from a source other than its bid submitted in response to the invitation to bid.   That source is the municipal bidding statutes themselves ․ [O]nly where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials, does an unsuccessful bidder have standing to challenge the award ․ A review of [the Supreme Court's] prior cases illustrates ․ that the only remedy afforded to unsuccessful bidders under the municipal bidding statutes has been injunctive relief against the awarding of the contract to the illegally favored bidder.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 412, 722 A.2d 271 (1999).   Moreover, the Supreme Court has “clarif[ied] that, in most cases involving competitive bidding on public contracts, the allegations alone should provide a sufficient factual basis for deciding the jurisdictional issue of whether the plaintiff made a colorable claim of injury.”  Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 422–23 n.17.

The plaintiff relies on the following two sections of ordinance 148.   Section 3(h) provides in relevant part:  “In all cases where bids are required and received, the contracts and purchase orders shall be awarded to the lowest responsible bidder.   If, however, the Purchasing Agent believes the interests of the City would be best served by accepting other than the lowest bid, the reason for accepting such higher bid shall be submitted in writing as a part of the award and a copy thereof shall be presented to the City Council ․” The plaintiff also relies on § 3(I), which enumerates a list of factors that the purchasing agent may consider in addition to price.¹  The affidavits submitted by the parties present disputed issues of fact as to whether these other considerations weighed in favor of awarding the project to the plaintiff or against awarding the project to the plaintiff.

In order for the plaintiff to have standing to pursue this action, the plaintiff must allege favoritism by the defendant or favoritism can be reasonably implied from the pleading.   See Lawrence Brunoli, Inc. v. Branford, supra, 247 Conn. 407.   In the complaint, the plaintiff alleges that it was the lowest responsible bidder based on the base bid alone and that the project was awarded to B & W. The plaintiff does not allege that the defendant's conduct was favoritism in awarding the project to B & W. The plaintiff claims at oral argument that favoritism may be inferred from the defendant's conduct.   Even viewing these allegations in the light most favorable, the allegations before the court do not permit the court to reasonably imply favoritism.   The plaintiff through counsel stated at short calendar that it did not have evidence of favoritism by the defendant for the accepted bidder.   The plaintiff argued the implication of favoritism in general by the defendant's alleged conduct.   The court concludes that pleadings contain insufficient facts implying that the defendant acted in any way of favoritism toward any of the bidders concerning the project in question.   Furthermore, the plaintiff has failed to allege sufficient facts in light of the pleading, exhibits and affidavits for the court to conclude that the defendant violated the ordinance in awarding the contract to B & W. These disputed issues of fact in the affidavits do not necessitate the court holding an evidentiary hearing on the issue of jurisdiction because the plaintiff in the present case has failed to allege facts that imply that the defendant engaged in favoritism in awarding the project.   The plaintiff conceded at oral argument that it is not alleging that fraud or corruption influenced the awarding of the contract for the project.²  The dispute regarding the plaintiff's previous work, therefore, does not raise an issue as to the plaintiff's standing.   Accordingly, the plaintiff does not have standing, and the defendant's motion to dismiss count one must be granted.

With respect to the plaintiff's claim for an order of mandamus in count two, “[a] writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ․ [The court's discretion] will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when (1) the law imposes on the party against whom the writ could run a duty the performance of which is mandatory and not discretionary, (2) the party applying for the writ has a clear legal right to have the duty performed;  and (3) there is no other specific adequate remedy.”  (Internal quotation marks omitted.)   Garcia v. Hartford, 135 Conn App. 248, 255, 42 A.3d 429 (2012).   Here, the plaintiff has not pleaded allegations from which the court may infer favoritism on the part of the defendant, and therefore, as noted above, the plaintiff does not have standing to pursue an injunction.   The plaintiff, likewise, does not have standing to pursue a writ of mandamus because ordinance 148 gives the purchasing agent discretion in awarding a contract and there is no law that imposes a mandatory duty on the defendant to award the project to the plaintiff, nor does the plaintiff have a clear legal right to have the project awarded to it.   Accordingly, the defendant's motion to dismiss count two must be granted.

With respect to the money damages that the plaintiff seeks as relief in the present action, the Supreme Court has “conclude[d] that a cause of action for money damages is not available to unsuccessful bidders on municipal contracts, regardless of whether there are allegations of fraud, favoritism or corruption in the bidding process.”  Lawrence Brunoli, Inc. v. Branford, supra, 247 Conn. 408–09.   Here, the plaintiff as an unsuccessful bidder has sought money damages for not being awarded the project by the defendant, but as the Supreme Court has held money damages are not available in this type of action See id.   Accordingly, the defendant's motion to dismiss is granted in its entirety.

ORDER

Based on the foregoing reasons, the defendant's motion to dismiss is granted.

Devine, J.

FOOTNOTES

FN1. Section 3(I) of ordinance 148 provides:  “In determining ‘lowest responsible bidder,’ in addition to price, the Purchasing Agent shall consider:  (1) The ability, capacity and skill of the bidder to perform the contract or provide the service required;  (2) Whether the bidder can perform the contract or provide the service promptly or within the time specified without delay or interference;  (3) The character, integrity, reputation, judgment, experience and efficiency of the bidder;  (4) The quality of performance of previous contracts or services;  (5) The previous and existing compliance by the bidder with the laws and ordinances relating to the contract or services;  (6) The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service;  (7) The quality, availability, and adaptability of the supplies or contractual services to the particular use required;  (8) The ability of the bidder to provide future maintenance and service for the use of the subject contract, (9) The number and scope of the conditions attached to the bid.”.  FN1. Section 3(I) of ordinance 148 provides:  “In determining ‘lowest responsible bidder,’ in addition to price, the Purchasing Agent shall consider:  (1) The ability, capacity and skill of the bidder to perform the contract or provide the service required;  (2) Whether the bidder can perform the contract or provide the service promptly or within the time specified without delay or interference;  (3) The character, integrity, reputation, judgment, experience and efficiency of the bidder;  (4) The quality of performance of previous contracts or services;  (5) The previous and existing compliance by the bidder with the laws and ordinances relating to the contract or services;  (6) The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service;  (7) The quality, availability, and adaptability of the supplies or contractual services to the particular use required;  (8) The ability of the bidder to provide future maintenance and service for the use of the subject contract, (9) The number and scope of the conditions attached to the bid.”

FN2. The court inquired of both counsel for the plaintiff and defendant if any further evidence through testimony or documentary statements were to be presented to the court at the hearing.   Both counsel reported in the negative..  FN2. The court inquired of both counsel for the plaintiff and defendant if any further evidence through testimony or documentary statements were to be presented to the court at the hearing.   Both counsel reported in the negative.

Devine, James J., J.