Opinion
No. CV93-0459215
June 17, 1994
MEMORANDUM OF DECISION ON MOTION TO DISMISS
John A. Barbieri for plaintiff.
Sledzik McGuire for defendant.
I. Introduction
The plaintiff, Norman Rustad, Jr., a plumbing and heating contractor doing business as Unlimited Plumbing Heating, commenced this action on October 26, 1993 alleging that he suffered financial loss when the defendant Housing Authority for the City of New Britain (Housing Authority) did not award him a contract for plumbing services. As his bid was the lowest submitted, he claims that the Housing Authority's action violated both General Statutes § 8-44 (Count One) and General Statutes § 42-110b et seq. (CUTPA) (Count Two).
The plaintiff has also sued John Silano, Director of Maintenance of the Housing Authority (Count Three), and Holden Croslan, Executive Director of the Housing Authority (Count Four) incorporating by reference the allegations made in Counts One and Two.
All defendants have now moved to dismiss the complaint in its entirety claiming that the plaintiff does not have standing to bring this action and, therefore, this court lacks subject matter jurisdiction.
II. Discussion
The defendants argue that this court lacks subject matter jurisdiction because lowest bidder statutes, such as General Statutes § 8-44 are enacted for the benefit of the public and do not create rights in favor of those who submit bids.
General Statutes § 8-44 concerns the powers of housing authorities and provides in relevant part: All contracts to be made or let for work, supplies or for purchases of personal property of every description, shall be publicly advertised, for the purpose of receiving bids upon the same. . . . The bids received in response to such public advertisement shall be publicly opened at a hearing of the authority . . . and the contract or award shall be made by the authority with or to the lowest responsible bidder.
Municipal competitive bidding laws are enacted to guard against such evils as favoritism, fraud or corruption in the award of contracts, to secure the best product at the lowest price, and to benefit the taxpayers, not the bidders; they should be construed to accomplish these purposes fairly and reasonably with sole reference to the public interest. Austin v. Housing Authority, 143 Conn. 338, 345 (1956); 10 McQuillin, Municipal Corporations (3d Ed. Rev.) § 29.29. "The better authority holds that lowest responsible bidder statutes are enacted solely for the benefit of the public and in no sense create any rights in those who submit bids. 10 McQuillin, Municipal Corporations (3d Ed. Rev.) § 29.29." Austin v. Housing Authority, supra, 349.
John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 702 (1982).
The plaintiff concedes that he does not have standing solely because he was the lowest bidder. He argues nonetheless that he, as an unsuccessful bidder, has standing to challenge the award of the plumbing contract under the doctrine set forth in Spiniello Construction Co. v. Manchester, 189 Conn. 539, 544 (1983), alleging that fraud, corruption or favoritism influenced the conduct of the bidding officials. See also, Ardmare Construction Co. v. Freedman, 191 Conn. 497, 504 (1983). In Spiniello, supra, the municipality had imparted certain information to one bidder that it had not provided to other [the] other. "Thus, parity of information no longer existed among the bidders as envisioned by the statute." Ardmare Construction Co. v. Freedman, supra, 505.
In Spiniello, the town was accepting bids for two separate contracts, Contract 2 and Contract 3. The determination to confer standing on the plaintiff therein was based on allegations indicating that one bidder was given special advantages and was privy to secret information. Specifically, the contractor selected was permitted to submit a conditional, combined bid for a reduced amount if he were to be awarded both contracts. The plaintiff alleged: 10. Defendant town . . . colluded and conspired with Raymond [the contractor selected] to defeat the publicly announced competitive bidding process in violation of the public advertisement, bid documents and town charter, by secretly agreeing with Raymond that the defendant would accept said proposed bid reduction as a responsive bid. 11. The town did not notify any other bidder that it could submit any bid on the basis of one combined contract and no other bidder was aware of the new addendum, interpretation or condition, or of the secret arrangement between defendant and Raymond. 12. As a result of this conspiracy and collusion, no other bidder was afforded the opportunity to either bid on a single different price or discount on the basis of being awarded both contracts.
The allegations of the plaintiff's complaint, however, do not indicate that the competitive bidding process was undermined so as to bring this case within the exception recognized in Spiniello. The plaintiff alleges only that "the actions of the Housing Authority were intentional and with a view toward preferring other plumbing contractors to the plaintiff."
The position of the plaintiff appears to be that the selection of a higher bidder is necessarily indicative of favoritism. Because this complaint is devoid of any allegations that may bring this case within the Spiniello exception, the plaintiff does not have standing to maintain this action. Accordingly, the plaintiff does not have a legal right to set the judicial machinery in motion, Ardmare Construction Co. v. Freedman, supra, 501, and the defendants' motion to dismiss is granted.
Berger, Judge