Opinion
C.A. No. PC-2020-06551
12-22-2020
BARLETTA/AETNA I-195 WASHINGTON BRIDGE NORTH PHASE 2 JV; AETNA BRIDGE COMPANY; and BARLETTA HEAVY DIVISION, INC. Petitioners, v. STATE OF RHODE ISLAND, DEPARTMENT OF ADMINISTRATION, by and through BRETT SMILEY, in his official capacity as Chief Purchasing Officer; and STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, by and through PETER ALVITI, JR., P.E., in his official capacity as Director Respondents.
ATTORNEYS: For Plaintiff: Jackson C. Parmenter, Esq. Erin A. Hockensmith, Esq. Michael A. Kelly, Esq. For Defendant: Daniel W. Majcher, Esq. For Intervenor: Jeremy Ritzenberg, Esq. William M. Russo, Esq.
DECISION TAFT-CARTER , J. Before this Court for decision is Cardi Corporation's (Intervenor or Cardi) Motion to Dismiss the Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus brought by Barletta/Aetna I-195 Washington Bridge North Phase 2 JV (the JV), Aetna Bridge Company (Aetna), and Barletta Heavy Division, Inc. (Barletta) (Petitioners), as well as the Petitioners' objection to the Intervenor's Motion to Dismiss. The Court heard this motion remotely via WebEx on November 19, 2020. Jurisdiction is pursuant to Rule 12 of the Superior Court Rules of Civil Procedure.
I
Facts and Travel
This action arises out of the bidding process that occurred during the second phase of a construction project on I-195 Washington Bridge North (Project) owned by the Rhode Island Department of Transportation (RIDOT). The Department of Administration (DOA) is the state agency in charge of advertising requests for proposals and creating the "Procurement Regulations" which govern the solicitation process pursuant to G.L. 1956 §§ 37-2-1 et seq. (State Purchases Act). See G.L. 1956 § 37-2-13; 220-RICR-30-00-5.6(C)(5). Aetna is a Rhode Island corporation with its principal place of business located in Warwick, Rhode Island. (Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus (Petition) ¶ 2.) Barletta is a Massachusetts corporation with its principal place of business located in Canton, Massachusetts. Id. ¶ 3. The JV is a joint venture organized for the purposes of submitting a bid to RIDOT in connection with phase two of the Project. Id. ¶ 1. Cardi was hired to perform certain work during the first phase of the Project and submitted a bid for the second phase of the Project as well. See id. ¶¶ 12, 19.
In December of 2016, Respondents issued a request for proposals concerning I-195 Washington North (Phase 1 of the Project) and awarded the contract to Cardi. Id. ¶¶ 11-12. Cardi performed certain work for Phase 1 until RIDOT terminated and/or cancelled the contract between the parties. Id. ¶ 13. On April 10, 2020, RIDOT and DOA (Respondents) issued Request for Proposal # 7603376 (the Phase 2 RFP), which sought proposals for "Best Value Design-Build Procurement for Bridge Group 57T-10: I-195 Washington North, Phase 2" (Phase 2 of the Project). Id. ¶¶ 1, 14. Responses by bidders were due on July 17, 2020. Id. ¶ 15. In total there were three bidders who submitted proposals, including the Petitioners and Cardi. Id. ¶ 19.
Section 2.1 of Part 1 of the Phase 2 RFP provided that Phase 2 of the Project "will principally consist of the rehabilitation of the I-195 Washington Bridge North Phase 2 and the associated new on and off ramps in Providence and East Providence . . . Phase 1 of the project was the recently completed partial rehabilitation of the substructure of the bridge." Id. ¶ 16. Further, Section 3.1 of Part 1 of the Phase 2 RFP included a list of certain work that would be included in the rehabilitation of the Washington Bridge. Id. ¶ 17. One such activity included in the list was the "installation of link slabs." Id. The Phase 2 RFP also included a description of the work that occurred during Phase 1, which in pertinent part stated that "[a] partial rehabilitation of the Washington Bridge (Washington North Phase 1) was undertaken from 2016 through 2019 as part of Contract 2016-CB-059 . . . [O]nly a portion of the work depicted in the 2016 contract documents was completed during the Washington North Phase 1 project[.]" Id. ¶ 18.
Following the issuance of the Phase 2 RFP, the three bidders, including the JV, submitted questions to Respondents in an attempt to clarify the quantity and description of the work completed during Phase 1 of the Project. Id. ¶ 19. One such question listed numerous repair items that were included in the previous Phase 1 contract with Cardi but were not included in "Form N and Section 3.7.3 of the [Phase 2] RFP" and asked for Respondents to provide estimates for those repair items. Id. RIDOT responded to the question about the missing repair items as follows: "With the exception of the bearing] replacements at Pier 14 the items mentioned have not been performed. For items with estimated and only bid quantities, previously completed quantities have been taken into account. No additional items will be added to Form N." Id.
"In addition to the questions and answers exchanged," the JV attended certain field/site inspections where it apparently became "evident" to the JV that certain work that was contemplated for Phase 2 of the Project (including work on "link slabs") "may" have been completed during Phase 1 of the Project. See id. ¶¶ 22-23. However, because of Respondents' answers to the bidders' questions and what was stated in the Phase 2 RFP, Petitioners included in their submitted proposal the cost for the work that they had observed may have been completed during Phase 1. Id. ¶¶ 21-24.
On August 17, 2020, Respondents issued an "Apparent Best Value determination" that put forth each bidder's "final score." Id. ¶¶ 50-54. Based on this determination, Petitioners became aware that Cardi's proposal price for Phase 2 was "significantly" less than the JV's price proposal, and, on August 27, 2020, Petitioners submitted a bid protest pursuant to the States Purchases Act and the Procurement Regulations. Id. ¶ 56.
On September 15, 2020, in response to the bid protest, the Respondents issued a State Determination, stating, among other things, that Cardi had "proposed maintaining all existing bridge joints and did not include the construction of any link slabs at fixed joints[.]" Id. ¶¶ 58, 60. This is apparently work that Petitioners had included in their proposal based on the Phase 2 RFP and the Respondents' responses to the bidders' questions. Id. ¶¶ 61-63. This State Determination also stated that Cardi's
"traffic and staging was found to be of marginal quality and details were missing. Supporting documentation was not provided on the planned traffic operations [Alternative Technical Concept's] related to the reduction of the Taunton Avenue/ Veterans Memorial Parkway on ramp from 2 to 1 [lane]. The modeling of traffic analysis for this ATC was not provided, which was a requirement of the RFP, rather only a qualitative overview was provided." Id. ¶ 33.
On September 17, 2020, Petitioners filed their three-count Petition with this Court. Count I requests a declaratory judgment that: (1) Cardi's proposal is disqualified, and/or (2) once further information concerning Phase 1 of the Project is released, the bidders would be allowed to submit new price proposals, and/or (3) the original Phase 2 RFP be cancelled and be reissued with information about the work performed in Phase 1. Id. ¶¶ 81-87. Count II requests injunctive relief enjoining the entire procurement process until all information pertaining to the work in Phase 1 is revealed. Id. ¶¶ 88-93. Count III requests a writ of mandamus compelling the Respondents to stop the procurement process, void all previous steps taken, disqualify Cardi's proposal, and/or cancel and reissue the Phase 2 RFP. Id. ¶¶ 94-97. Cardi filed its Motion to Dismiss on October 13, 2020. This Court now renders its decision.
II
Standard of Review
"The sole function of a motion to dismiss is to test the sufficiency of the complaint." Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (quotation omitted). Looking at the four corners of the complaint, this Court examines that pleading and assumes that the allegations contained in the plaintiff's complaint are true, viewing them in a light most favorable to the plaintiff. Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009). Our Supreme Court has noted that there is a policy to interpret the pleading rules liberally so that "cases in our system are not . . . disposed of summarily on arcane or technical grounds." Konar v. PFL Life Insurance Co., 840 A.2d 1115, 1118 (R.I. 2004) (quotation omitted). While the pleading does not need to include the ultimate facts to be proven or the precise legal theory upon which the claims are based, the complaint is required to provide the opposing party with fair and adequate notice of any claims being asserted. Barrette, 966 A.2d at 1234.
The goal of a complaint is to give defendants sufficient notice of the type of claim being asserted against them. See Konar, 840 A.2d at 1119; see also Berard v. Ryder Student Transportation Services, Inc., 767 A.2d 81, 85 (R.I. 2001) (noting that the requisite notice under Rule 8 of the Superior Court Rules of Civil Procedure requires plaintiff to allege what acts committed by defendant entitle plaintiff to legal or equitable relief). Accordingly, "[a] motion to dismiss is properly granted when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Woonsocket School Committee v. Chafee, 89 A.3d 778, 787 (R.I. 2014) (quotations omitted).
Rule 8 states in pertinent part that "[a] pleading . . . shall contain (1) [a] short and plain statement of the claim showing that the pleader is entitled to relief, and (2) [a] demand for judgment for the relief the pleader seeks." Super. R. Civ. P. 8(a).
III
Analysis
Cardi asserts two reasons as to why this Court should dismiss the Petition. First, Cardi argues that the underlying bid protest was not filed in a timely manner pursuant to G.L. 1956 §§ 37-2-1 et seq. (State Purchases Act) and the State of Rhode Island Procurement Regulations (Procurement Regulations). (Intervenor Mot. to Dismiss at 2.) Second, Cardi argues that the Petition fails to satisfy "Rhode Island's well established standards for public contract bid protests[.]" Id. at 1. This Court will address each of these reasons separately.
A
Timeliness of Bid Protest
As to the timeliness argument, Cardi contends that the State Purchases Act and the Procurement Regulations require that the aggrieved party file a bid protest fourteen days prior to bid opening. Id. at 2. According to Cardi, although Petitioners "attempt" in their Petition to allege a timely bid protest, Petitioners have failed to establish that the bid protest submitted on August 27, 2020 was within fourteen days of when Petitioners knew or should have known of the facts giving rise to the bid protest. Id. at 5.
First, Cardi argues that the August 27, 2020 Bid Protest is untimely as a matter of law because the Petitioners knew prior to July 17, 2020 that Cardi had performed worked on Phase 1 of the Project. Id. at 10-11. Cardi reasons that this "conflict of interest" issue was never raised prior to the bid protest, and therefore it is waived. (Hr'g Tr. 13:9-10, Nov. 19, 2020.) Second, Cardi argues that the Petitioner's allegations that the scope of work was incorrectly described by the Respondents are untimely. (Intervenor Mot. to Dismiss at 11.) Cardi asserts that the Petition alleges that Petitioners performed a field inspection prior to July 17, 2020 and that it was at the field inspection where Petitioners learned the facts that gave rise to the bid protest. Id. Thus, Cardi contends that the allegation made by Petitioners is untimely because a bid protest with this allegation should have been filed within fourteen days of the site inspection. (Hr'g Tr. 14, Nov. 19, 2020.) Third, Cardi argues that Petitioners' attack on Cardi's technical proposal is untimely because this allegation was only raised in the Petition and not the August 27, 2020 Bid Protest. (Intervenor Mot. to Dismiss at 12.) Cardi asserts that Petitioners were required to file a subsequent or supplemental bid protest containing the allegations against Cardi's technical proposal in order for the allegation to be allowed in the Petition. Id. at 13.
In response, Petitioners argue that Cardi's "[t]iming [a]rguments" fail because the timeframes in the State Purchases Act and the Procurement Regulations are "not jurisdictional and therefore have no effect on this Court's ability to entertain the Petition before it." (Pet'rs' Obj. to Intervenor Mot. to Dismiss at 18.) Specifically, Petitioners assert that the requirements in the State Purchases Act and the Procurement Regulations surrounding the bid protest matter on an "administrative level," and if this Court were to find that Petitioners did not comply with the timeframes, that would have "no impact on this Court's determination relative to Cardi's Motion to [D]ismiss." Id.
Next, Petitioners assert that they have sufficiently pled that they submitted a timely bid protest because Paragraph 56 of the Petition alleges that "the JV submitted a timely bid protest . . . pursuant to Section 52 of [the State Purchases Act] and § 1.6 of the Procurement Regulations." Id. at 20. Petitioners disagree with Cardi's argument that Petitioners must establish that the bid protest was submitted within fourteen day of discovering facts giving rise to such protest. Id. Rather, Petitioners contend that they do not need to establish anything and they "need only set forth 'bare-bones allegations' which, if proven true, will entitle Plaintiff to relief." Id. Further, Petitioners contend that they in fact filed a timely bid protest and that Cardi is mistaken as to when Petitioners learned of the facts that gave rise to the bid protest. Id. at 21.
Finally, Petitioners argue that their attack on Cardi's technical proposal was not included in the August 27, 2020 Bid Protest because Petitioners did not learn this information until the Respondents issued the State Determination on September 15, 2020. Id. at 27. Petitioners assert that Cardi's argument was addressed and rejected by the Rhode Island Supreme Court in Blue Cross & Blue Shield of Rhode Island v. Najarian, 865 A.2d 1074 (R.I. 2005).
Section 37-2-52(b) of the State Purchases Act, entitled "Authority to resolve protests[,]" provides, in pertinent part, that
"(b) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or selection for award of a contract may file a protest with the chief purchasing officer. A protest or notice of other controversy must be filed promptly and in any event within two (2) calendar weeks after the aggrieved person knows or should have known of the facts giving rise thereto." Section 37-2-52(b) (emphasis added).Further, Section 1.6 of the Procurement Regulations provides, in pertinent part, as follows:
"D. Timeliness of Bid Protest
"1. A bid protest must be filed in accordance with § 1.6.2 of this Part and within the following time limits:
"a. Bid protests regarding the form or content of solicitation documents must be received by the chief purchasing officer not later than fourteen (14) calendar days before the date set in the solicitation for receipt of bids...
"b. In all other cases, protests must be received by the chief purchasing officer not later than fourteen (14) calendar days after the protester knew or should have known, whichever is earlier, the facts giving rise to a protest.
". . .
"d. New factual allegations made after the initial protest without a new and separate showing of timeliness shall be deemed to be untimely." 220-RICR-30-00-1.6(D) (emphasis added).
In Shire Corporation, Inc. v. Rhode Island Department of Transportation, No. PB-09-5686, 2012 WL 756991 (R.I. Super. Mar. 2, 2012), the Superior Court examined the plain language of § 37-2-52, which states that the bidder "may file a protest with the purchasing officer." Shire Corporation, 2012 WL 756991, at *5. The Court additionally noted that § 37-2-7(12) of the Purchasing Act defines the word "may" as follows: "'May' means permissive." Id. The Court further explained that "exhaustion of administrative remedies is not required when 'in contravention of the plain language and manifest intent of a statute.'" Id. (quoting Downey v. Carcieri, 996 A.2d 1144, 1151 (R.I. 2010)). In Downey, the Supreme Court relied on the word "may" in the Access to Public Records Act (APRA) to determine that a party was not required to exhaust all administrative remedies before pursuing an action in Superior Court. Downey, 996 A.2d at 1151. Thus, the Superior Court in Shire Corporation ruled, based on the plain language of § 37-2-52 ("may file a protest") and the reasoning in Downey, that the State Purchases Act "permits but does not require a plaintiff to take advantage of administrative remedies prior to initiating suit in the Superior Court." Shire Corporation, 2012 WL 756991, at *6 (further stating, "[e]vidently absent from the statute and the surrounding sections are any requirements of exhausting administrative remedies prior to litigation").
Here, Cardi argues that § 37-2-52 and § 1.6 of the Procurement Regulations require that Petitioners first file a timely bid protest with the chief purchasing officer in order to be able to bring the current Petition before the Court. However, applying the same reasoning as Justice Silverstein in Shire Corporation, Cardi's argument is incorrect. Under that reasoning, the Petitioners here are not required to file a timely bid protest prior to the institution of a Petition in this Court because the clear language of the statute reads "may" file the bid protest. See Shire Corporation, 2012 WL 756991, at *6; see also Downey, 996 A.2d at 1151. Therefore, because the Petitioners' filing of a timely bid protest is not a procedural prerequisite to bringing this Petition, this Court need not reach the issue of whether the Petitioners sufficiently pled that they had brought a timely bid protest. Shire Corporation, 2012 WL 756991, at *6 ("Section 37-2-52, providing that a party may file a bid protest, does not set procedural limitations.").
Cardi is also asking this Court to make a determination of the timeliness of the August 27, 2020 Bid Protest. However, given that this Court has determined that a timely bid protest is not a procedural requirement to file a Petition, the timeliness determination need not be addressed at this stage of the proceedings. Specifically, in Rhode Island, it is not required that a Petition lay out "'the precise legal theory upon which'" Petitioners' claim is based; rather "the complaint must give 'the opposing party fair and adequate notice of the type of claim being asserted.'" Konar, 840 A.2d at 1118 (quoting Hendrick v. Hendrick, 755 A.2d 784, 791 (R.I. 2000)). While Cardi takes issue with Paragraph 56 of the Petition, this Court is satisfied that at this stage the Petition is sufficient to put Cardi on notice of Petitioners' claims. See Hyatt v. Village House Convalescent Home, Inc., 880 A.2d 821, 823 (R.I. 2005) ("Rule 12(b)(6) does not deal with the likelihood of success on the merits, but rather with the viability of a plaintiff's bare-bones allegations and claims as they are set forth in the complaint.").
Finally, Cardi argues that the allegations contained in Paragraphs 30-34 of the Petition, attacking Cardi's technical proposal, must be dismissed because those allegations did not appear in the August 27, 2020 Bid Protest, nor did Petitioners file a supplemental bid protest containing such allegations. (Intervenor Mot. to Dismiss at 12.) However, the Rhode Island Supreme Court has rejected this argument. In Najarian, the plaintiff failed to include three out of six issues in its bid protest, and the defendants argued that the plaintiff should be precluded from amending its complaint to include such issues. Najarian, 865 A.2d at 1085. There, the trial justice rejected the defendant's argument and allowed the plaintiff to amend its complaint to address all six issues. Id. The Supreme Court affirmed the trial justice's decision and concluded that "all six of the issues that the trial justice addressed in her decision" were properly before the Court. Id. Therefore, this Court concludes that the allegations concerning Cardi's technical proposal are properly before this Court.
B
Palpable Abuse of Discretion
Cardi argues that the typical Rule 12(b)(6) standard must be coupled with the standard of law applicable to a public bid protest. (Intervenor Mot. to Dismiss at 3.) Cardi contends that Petitioners were required to establish in their Petition that the Respondents are "guilty of a palpable abuse of discretion," but Petitioners have failed to do so. Id. at 7. Moreover, Cardi argues that Petitioners have failed to allege any violations of specific provisions of the Rhode Island procurement laws or that any of the alleged violations were "significant[.]" Id. at 7-8. Specifically, Cardi asserts that the alleged violations could never be "significant" because the Phase 2 RFP provides that the Respondents have the sole discretion to handle such violations. Id. at 15-16, 18.
Petitioners first argue that there is no heightened pleading standard in the context of a Rule 12(b)(6) motion in connection with a public contract bid protest. (Pet'rs' Obj. to Intervenor Mot. to Dismiss at 14.) Petitioners assert that Cardi improperly relies upon § 37-2-51 and Rhode Island case law to create this "novel standard." Id. at 14-15. However, Petitioners alternatively argue that if the palpable abuse of discretion standard applies to Cardi's Motion to Dismiss, Petitioners "have more than sufficiently [pled] that [the] solicitation process at issue" met this standard. Id. at 31. Specifically, the Petition clearly alleges that (1) Cardi had material information that the other bidders did not have because they worked on Phase 1 of the Project; (2) the responses to the JV's questions turned out to be false; (3) the JV relied on the Phase 2 RFP and Respondents' responses in forming its own proposal and as a result included work that had been performed during Phase 1; and (4) Respondents' failure to provide all the bidders the same material and competitively useful information was a significant violation of the State Purchases Act, the Procurement Regulations, and the Phase 2 RFP itself because the JV was significantly disadvantaged. Id. at 32-33. Petitioners assert that a violation is "significant" when a bidder is disadvantaged during the solicitation process, and thus the Respondents' failure to "equalize competition" and them "placing Cardi at a competitive advantage over the JV" were clearly palpable abuses of discretion. Id. at 33.
Section 37-2-51 states that "[t]he decision of any official, board, agent, or other person appointed by the state concerning any controversy arising under or in connection with the solicitation or award of contract, shall be entitled to a presumption of correctness." The Rhode Island Supreme Court in Gilbane Building Co. v. The Board of Trustees of State Colleges, 107 R.I. 295, 267 A.2d 396 (1970), held:
"The judiciary will interfere with an award only when it is shown that an officer or officers charged with the duty of making a decision has acted corruptly or in bad faith, or so unreasonably or so arbitrarily as to be guilty of a palpable abuse of discretion." Gilbane Building Co., 107 R.I. at 299, 267 A.2d at 399."To rise to a showing of palpable abuse of discretion . . . one must establish that not only were there violations of the law but also that those violations were significant." Najarian, 865 A.2d at 1084.
Further, "[o]n numerous occasions[,]" the Rhode Island Supreme Court has "said that the hurdle to be overcome in overturning a decision made by the awarding authority in the public bid process is very high indeed." Id. at 1081. Specifically, the Supreme Court has urged that the officials in charge of procuring contracts should not be "'placed in a legalistic straightjacket,'" and "in particular, 'when officials in charge of awarding a public work's contract have acted fairly and honestly with reasonable exercise of a sound discretion, their actions shall not be interfered with by the courts.'" H.V. Collins Company v. Tarro, 696 A.2d 298, 302 (R.I. 1997) (quoting Truk Away of Rhode Island, Inc. v. Macera Brothers of Cranston, Inc., 643 A.2d 811, 815 (R.I. 1994)).
Petitioners have asserted that "[a] violation is 'significant' when a respondent is disadvantaged by the procurement process, meaning a violation in the solicitation process that unfairly prejudices one respondent over another such that the party is disadvantaged." (Pet'rs' Obj. to Intervenor Mot. to Dismiss at 31 (emphasis in original).) For this proposition, Petitioners cite to Associated Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d 1179, 1187 (R.I. 2002) and to Justice Silverstein's bench decision in J.H. Lynch & Sons, Inc. v. State of Rhode Island, PC-2018-2522 (R.I. Super. July 12, 2018) (attached as Exhibit 1 to Petitioners' Objection). In Associated Builders, the Supreme Court said that the "primary goals" of the State Purchases Act are "(1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts." Associated Builders, 787 A.2d at 1187 (quotation omitted). There must, therefore, be evidence that someone "was disadvantaged by the manner in which the award was processed and/or made" and a plaintiff must "establish or show a palpable abuse of discretion by the State, or by any of its actors[.]" J.H. Lynch & Sons, Inc., PC-2018-2522, at 9-10.
Petitioners argue that this "palpable abuse of discretion" standard does not apply to the pleading stage but only applies when evidence is submitted to this Court. (Pet'rs' Obj. to Intervenor Mot. to Dismiss at 14.) However, in order for Petitioners to prevail on their claim, they must establish that there was a "palpable abuse of discretion" by Respondents. See, e.g., Truk Away of Rhode Island, Inc., 643 A.2d at 816-17 (reversing Superior Court's decision to grant injunctive relief because the trial justice committed an error of law in concluding that there was a palpable abuse of discretion; the Supreme Court found that just because the bidding procedures were confusing "does not mean that those procedures were arbitrary or capricious"). Under Rhode Island law, a motion to dismiss pursuant to Rule 12(b)(6) should only be granted "when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Woonsocket School Committee, 89 A.3d at 787 (quotation omitted). Thus, reading these two standards together, Cardi's Motion to Dismiss should only be granted if it is "clear beyond a reasonable doubt" that "under any set of facts that could be proven," Petitioners cannot show that Respondents acted with a "palpable abuse of discretion."
Here, the Petition is sufficient to survive the pleading stage. See Pet'rs' Obj. to Intervenor Mot. to Dismiss at 31-34. Specifically, the Petition alleges that (1) Respondents' "failure to provide all [bidders] with the same material and competitively useful information constitutes a significant violation" of the State Purchases Act, the Procurement Regulations, and the Phase 2 RFP; (2) "the JV was significantly disadvantaged over Cardi by the procurement process itself"; (3) Respondents "failed to equalize the competition and, therefore, compromised the integrity of the competitive procurement process"; (4) Respondents "failed to provide all prospective bidders . . . with comprehensive information relative to the Phase 2 RFP," which resulted in the solicitation processes being "neither comprehensive nor fair"; and (5) Respondents failed "to provide a comprehensive and fair solicitation relative to the Phase 2 RFP, the [Respondents'] actions relative to the Phase 2 RFP constitutes palpable abuse of discretion." (Petition ¶¶ 64-70.) The Petition also alleges that the information describing the work in the Phase 2 RFP and in the Respondents' responses to the JV's questions was "false." See id. ¶¶ 20-21. Thus, assuming "all allegations [in the Petition] are true," Petitioners have sufficiently pled that there was a significant violation by failing to equalize the competition because Petitioners were disadvantaged by the Respondents' actions during the solicitation process. See Chhun v. Mortgage Electronic Registration Systems, Inc., 84 A.3d 419, 422 (R.I. 2014) (stating that the Court was "confined to the four corners of the complaint and must assume all allegations are true, resolving any doubts in plaintiff's favor"); see also § 37-2-2(b)(5) (stating that one of the purposes of the State Purchases Act is to "[i]nsure the fair and equitable treatment of all persons who deal with the procurement system of the state"); Associated Builders, 787 A.2d at 1187 (stating that one of the primary goals of the State Purchases Act was the "prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts").
Cardi points to the Phase 2 RFP and argues that the alleged violations could never be "significant" because Respondents had the sole discretion to handle each of these alleged violations. Cardi argues that the Respondents had sole discretion to handle conflicts of interests and to describe the scope of work in the Phase 2 RFP. (Intervenor Mot. to Dismiss at 16, 18.) Additionally, Cardi asserts that the Phase 2 RFP allowed for Cardi to submit the type of technical proposal it submitted, and thus these allegations also fail because the Respondents could not have abused their discretion in accepting such a proposal. Id. at 15. Petitioners respond to each of these arguments, stating that Cardi cannot rely solely on the Phase 2 RFP for its assertion, but rather case law indicates that Respondents were required to "equalize" the competition because there was a "significant" conflict of interest and because Respondents provided false information in its responses to the JV's pre-bid questions. (Pet'rs' Obj. to Intervenor Mot. to Dismiss at 36-49.) Further, Petitioners assert that the State Determination issued on September 15, 2020 stated that Cardi's technical proposal was nonresponsive and therefore not allowed by the Phase 2 RFP as Cardi claims. See id. at 8. Notwithstanding these arguments, at this stage this Court will not entertain the merits of these arguments, but rather will examine the Petition to determine whether it provides sufficient notice of Petitioners' claims. See Palazzo, 944 A.2d at 149 ("The sole function of a motion to dismiss is to test the sufficiency of the complaint."). This Court is satisfied that the Petition sufficiently provided notice to Cardi.
IV
Conclusion
Therefore, for the reasons stated above, this Court denies Cardi's Motion to Dismiss. Counsel shall submit an order consistent with this Decision.
ATTORNEYS:
For Plaintiff:
Jackson C. Parmenter, Esq.
Erin A. Hockensmith, Esq.
Michael A. Kelly, Esq.
For Defendant:
Daniel W. Majcher, Esq.
For Intervenor:
Jeremy Ritzenberg, Esq.
William M. Russo, Esq.