Opinion
No. CV04-0183602 S
January 3, 2005
MEMORANDUM OF DECISION
This proceeding was initiated via an application for an order to show cause for the issuance of a temporary injunction. The corporate plaintiff brings this proceeding under §§ 52-471 — 52-473 of the General Statutes as well as the court's inherent equitable powers. It seeks to enjoin the defendant from entering into any contract or purchase based upon the Request for Proposal issued on October 8, 2003, and/or the recission of the award of any contract to William Drakeley Swimming Pool Company, LLC based upon that Request for Proposal. The application was assigned for a hearing on April 5, 2004 at 11 a.m. As a result of the unavailability of counsel for the town, the case was continued until April 12 at 11 a.m.
The hearing did not go forward on April 12 and the file and the documentation therein suggets that the delay was occasioned by the solicitation of a commission to take a deposition and the deposition itself. The next event dealing with the subject matter of this litigation occurred on June 2, 2004 when the application for a temporary injunction was dismissed with prejudice by the court. The plaintiff immediately moved to set aside the dismissal and acknowledged that counsel was aware of the date and time assigned by the court as was the client. Due to an electrical "glitch" the date and information surrounding it was apparently lost. Utilizing that fact together with reference to a new system which counsel represented as curative of this problem, the motion to set aside dismissal was presented to the court. That motion was denied by the court on June 22, 2004.
That explanation for the delay is little more than assumption or suggestion.
A plenary hearing on the injunction concluded on October 13, 2004, and briefs were ordered filed by November 4, 2004. The hearing was held on the verified complaint which was drawn in five counts. The first was directed at the Request for Proposal; the second addressed at what the plaintiff claimed to be the failure of the successful bidder to meet the specifications set forth in the Request for Proposal; the third challenged the manner in which the Request for Proposal was prepared on the theory that the request favored a certain contractor; the fourth alleged that the town acted in excess of its statutory authority in issuing the Request for Proposal and had no statutory authority to award a contract based upon that Request for Proposal; and, the fifth railed against the failure of the town to provide for any alternative bids and favored one company, Paddock, to the detriment of all other bidders. Interestingly enough, the prayers for relief call for the granting of a temporary injunction and a permanent injunction enjoining the town from entering into a contract in response to that Request for Proposal. Secondly, it prayed for an order directing the town of Canaan to rescind the contract with the successful bidder if such had been awarded based upon the Request for Proposal, and the third granted such other relief as is just and proper including the costs and disbursements in the instant action. This type of relief or claim is, in effect, no claim whatsoever. No award can be based upon a general declaration of "whatever you can find to add on our award would be greatly appreciated." The court will not consider it any further than that.
Plaintiff's counsel conceded during final argument that there was no thought given to the award of money damages in this case. Injunctive relief and rescission were the only objectives of the suit.
For one to prevail in an action for injunctive relief that entity must prove to the court that it has no adequate remedy at law and will suffer irreparable damage. Stocker v. Waterbury, 154 Conn. 446, 449 (1967); Theurkauf v. Miller, 153 Conn. 159, 161 (1965); Weaver v. Ives, 152 Conn. 586, 590 (1965). In addition, if the application for the injunction is for a temporary injunction only, the moving party must also demonstrate an additional element. That element is the likelihood of success upon the merits.
The issue of standing provides an unsuccessful bidder in a municipal contract controversy with only very limited forms of standing. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501 (1983). A bid, even the lowest responsible one, submitted in response to an invitation for bids is only an offer which until it is accepted by the municipality does not give rise to a contract between the parties. John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 702 (1982).
Generally speaking, except in certain specified circumstances, an unsuccessful bidder has no standing to challenge the award of a public contract. If an unsuccessful bidder has standing to bring a claim against a municipality, 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. See Spiniello Construction Co. v. Manchester, 189 Conn. 539, 543-44 (1983). Only 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 the unsuccessful bidder have standing to challenge the award. Our prior cases illustrate, however, that the only remedy afforded to the unsuccessful bidder is under the municipal bidding statutes and injunctive relief against the awarding of the contract to the illegally favored bidder. Providing unsuccessful bidders with an equitable remedy alone is consistent with the policies that the court has previously identified as underlying the municipal bidding statutes.
It has long been established that municipal competitive bidding laws are enacted to guard against such evils as favoritism, fraud or corruption in the award of contracts. Our practice has evolved from the approach to unsuccessful bidder claims by the District of Columbia in Scanwell Laboratories, Inc. v. Laboratories where the court concluded that an unsuccessful bidder may bring an action against a municipality but rather than being an action to vindicate the personal harm the bidder perceived it has suffered, the action itself is brought in the public interest by one essentially acting as a "private attorney general." That public interest is triggered when a municipality is involved with some form of fraud, corruption or favoritism or "when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials . . ." Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 411-13 (1999).
The plaintiff has alleged that there was favoritism in this bidding process. It was alleged that the successful bidder, Drakely Pool, was a dealer from Paddock and further alleged that the consultant was an employee of Paddock. Neither allegation in the complaint was borne out by the evidence that was presented at the trial. Drakely in his testimony alleges that Drakely, LLC was not and had never been a Paddock dealer. One Schultz testified that he was not at the time of the preparation of the bidding documents nor during his work for the town, an employee of Paddock Pools. No evidence from Paddock was submitted to the contrary. The defendant asserts that the remaining allegation of favoritism, which might well be called collusion, was that the plaintiff Scott was involved in litigation with Paddock and failed to get pricing in a timely fashion.
The evidence submitted established that Scott did not even request pricing information from Paddock Pools until November 10. There is no evidence submitted that Paddock deliberately chose not to provide information to Scott Swimming Pools in a timely fashion. There was no evidence from any Paddock employee regarding any reason for the timing of the pricing information. Drakely testified that he requested pricing information from Paddock and it took him two weeks to get the necessary information. There is no justification for the claim Paddock showed any favoritism toward Drakely by providing information more quickly than it was provided for Scott. In fact, Paddock supplied the information requested to Scott in nine days as opposed to two weeks that he had provided the information to Drakely. Scott never indicated that it could or would submit a lower bid based on the information it received from Paddock. The court finds that the allegation of favoritism in the bidding process has not been established.
The plaintiff next complains about the qualifications of the successful bidder. The town was willing to accept the qualifications of Drakely based upon his submission of the projects upon which he was engaged. He has well over ten years experience in the industry and was involved with six of the ten pools listed by Scott setting forth his company's qualifications during Drakely's employment by Scott Pools. Scott relies upon three cases to support its position. The first of these is APCOA, Inc. v. City of New Haven, 1995 WL 155434 (Conn.Super. 1995) (March 30, 1995, Booth, J.); Spinello Construction Company v. Manchester, 189 Conn. 539 (1983); and Unisys Corporation v. Department of Labor, 220 Conn. 689 (1991). Spinello is clearly distinguishable in that the basis of support for the plaintiff's position in that case crumbled when it was noted that the procedures violated the provisions of the Manchester code. In Unisys the pleadings do not establish the requisite that one must be acting as "private attorney general" where the pleadings merely express a conclusion without any factual support thereof.
All witnesses on the Pool Committee as well as the testimony of the First Selectman, the Pool Consultant, Schultz, established that the town was quite willing to accept bids using alternative equipment as long as that equipment was stainless steel with a filtering system that was equivalent to Paddock equipment specified. The plaintiff was also notified in writing the alternative equipment was acceptable; bid documents themselves make specific provision for alternative equipment. There were requests for those wishing to use alternate equipment to submit the specifications therefore in advance.
They were simply requests. It was not a mandate. In fact, Scott Swimming Pools submitted an alternative bid but never at any time either prior to or at the time of bidding or subsequent to the time of bidding specify what equipment by brands and parts was to be provided in connection with the alternative bid. The town notes evidence that establishes that the plaintiff Scott deliberately substituted a page of the bid specification documents involving alternate bids with a preprinted page provided for the specification of alternate equipment. The substituted page did not specify what alternative equipment. It simply used the word "equal" without indicating what "equal" means in terms of its usage by Scott. After the entry of the bid, the plaintiff was given further opportunity to indicate by providing specifications on the equipment that he intended to provide in connection with the alternative bid. He never did it. It was never done.
The final thrust of the Scott argument is called "cozy relationships." This seemed to suggest that the plaintiff's position with respect to the so-called "cozy relationships" which would prove to be "frosting on the cake" which would substantiate its position and justify the relief it sought. Unfortunately for the plaintiff, it failed to do so.
The court, having heard the evidence presented, finds that the evidence established that the plaintiff Scott Pools does indeed have adequate remedies at law and has not nor will it suffer any irreparable damage. Judgment may enter denying the application for permanent injunctive relief as it was also denied in terms of temporary injunctive relief entered on the record at the conclusion of the initial hearing.
Moraghan, J.T.R.