Opinion
NO. 2013-CV-00119
06-07-2013
XTL-NH, Inc. v. New Hampshire State Liquor Commission
ORDER
The Petitioner, XTL-NH ("XTL") has brought an action against the Respondents, the New Hampshire State Liquor Commission ("Commission") and Exel, Inc. ("Exel") that arises out of XTL's unsuccessful bid for a liquor warehousing contract. The Commission awarded a contract to Exel. XTL alleges that the bidding process by which the contract was awarded to Exel was illegal under New Hampshire law and seeks an order that—pending trial on the merits—the Court enjoin the operation of the contract with Exel, and award the contract to XTL. On April 15, 2013, the Court held a preliminary hearing in this matter. The parties made offers of proof, and the recitation of facts set forth in this Order is based on those offers of proof and is not binding on the parties, but is subject to proof at trial. For the reasons stated in this Order, the request for a preliminary injunction is DENIED.
I
From the parties' offer of proof, the following appears to be undisputed. On November 20, 2012, the Commission awarded Exel a 20 year contract for warehousing services. The contact was the result of a bidding and evaluation process conducted entirely by the Commission pursuant to RSA 21-I:18. Since the award of the contract, Exel has taken substantial steps to carry out the terms of the contract, which begins on October 30, 2013. On that date, the current contract with another bidder, Law Warehouses Inc., expires. Exel has begun construction of a warehouse facility in Bow, New Hampshire. According to its memorandum, Exel has spent and/or committed more than $12.6 million in resources and labor in reliance on promises, commitments, and covenants set forth in the contract.
On December 12, 2012, after reviewing a portion of the Commission's Evaluation Committee's scoring information, XTL alleges that it learned that it had submitted lowest price and was the highest-scored qualified and responsive bidder. Nonetheless, the Commission ranked XTL second in its bidder scoring hierarchy. XTL's overall score was 2.24 points less than Exel's overall score. Pet. Prelim. & Inj. Relief ¶ 25 ("Pet."). Between December 2012 and March 2013, XTL exhausted its administrative remedies in an attempt to overturn the award to Exel. After it failed to convince the Commission to overturn the award to Exel, it brought this Petition.
In seeking preliminary relief, XTL argues that the Commission did not comply with the provisions of RSA 21-I:18, I(b) and RSA 21-I:22-b, which respectively require competitive bidding and that awards not be made on criteria that are unknown to the parties submitting bids or proposals. XTL argues that the Commission "acted unlawfully by overlooking Exel's substantial non-compliance with and unresponsiveness to a significant number of the RFP's mandatory requirements, and by waiving those deficiencies so that Exel could continue in the process and win the contract based on its own specifications and not of the RFP." XTL's Mem. Law in Support of Pet'r's Request for Prelim. Inj. 6 ("XTL's Mem. Support Inj."). XTL argues that it complied with all of the RFPs mandatory requirements but "was placed on an unequal footing because it was not evaluated on the objective and specific factors set out in the RFP, but on Exel's own specifications that were unknown to XTL-NH and other bidders." Id.
II
An injunction is an "extraordinary remedy" that "should not issue unless there is an immediate danger of irreparable harm to the party seeking injunctive relief, and there is no adequate remedy at law." N.H. Dep't of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). A party seeking injunctive relief also must show that it is likely to succeed on the merits. Id. Courts consider the impact on the public interest and the possibility of substantial harm to others. See UniFirst Corp. v. City of Nashua, 130 N.H. 11, 13-14 (1987). The party seeking injunctive relief has the burden of persuading a court that it is entitled to such relief.
The Commission argues that the standard of review in this court is limited to that available on a writ of certiorari. The Commission reasons that because XTL exhausted its administrative remedies, and there is no appeal of that administrative decision, this case must be considered an application for writ of certiorari, citing Wilson v. Pers. Comm'n, 117 N.H. 783, 785 (1977). The Court disagrees.
The New Hampshire Supreme Court has explicitly recognized that an invitation to bid on a public contract is not an offer, and the bid itself is an offer that creates no right until it is accepted. Marbucco Corp. v. City of Manchester, 137 N.H. 629, 632-33 (1993). However, a bidder's reasonable reliance on a public entity's promise to awarded a contract the lowest responsible bidder that submits required information by the stated deadline may entitle a bidder to damages under a theory of promissory estoppel. Id. (citing RESTATEMENT (SECOND) CONTRACTS § 90 (1979)). In substance, XTL has brought an action based on its claim that its legal rights have been violated, and it seeks an equitable remedy because it alleges irreparable harm. Because the New Hampshire Supreme Court recognizes such actions, this Court need not address XTL's argument under a writ of certiorari standard. Rather, the Court must consider whether the Commission violated XTL's rights by denying XTL's protests and engaging in non-competitive bidding.
Certiorari may be the appropriate remedy for a denial of a Commission protest, but based on XTL's arguments and the facts in this case, XTL's claim here is for promissory estoppel and/or breach of contract.
III
XTL's principal argument is that the bidding process in which it participated was not competitive, as required by statute. RSA 21-I:18, I(b) provides: "The liquor commission is completely exempted from the provisions of this chapter, provided that the liquor commission uses competitive bidding when acquiring consumable supplies, materials, goods, and services that are necessary for, incidental to, or related to the operation of the liquor commission." Under RSA 21-I:22-a, every RFP "shall contain within the body of the document the objective criteria by which each submission will be reviewed, if there are particular requirements that will receive more weight in the review of the submission, and the standards upon which any award will be based." Similarly, RSA 21-I:22-b states, "awards which are made by the state or by a state agency . . . shall not be made on criteria that are unknown to the parties submitting bids or proposals." Although RSA chapter 21-I would not, by the terms of RSA 21-I:18, I(b), necessarily apply to the Commission, there is no serious dispute that the statutes express the general principle applicable in all cases of competitive bidding that bidders must stand on equal footing, be treated fairly, and participate in a transparent process. Marbucco, 137 N.H. at 633. XTL maintains that the bidding process it participated in was unfair because the RFP provided that, at the Commission's sole discretion, it could weigh mandatory requirements and accept alternatives deemed to be in the best interest of the Commission.
A
The Commission and Exel argue that the Court need not address this claim because XTL waived its right to challenge the RFP by participating in the bidding. The Commission and Exel rely on Kohl Partners, LLC v. City of Manchester, No. Civ. 03-162-M, 2003 WL 22474626 (D.N.H. Oct. 30,2003) in which the court found: "While there is no New Hampshire case directly on point, several courts have ruled that once a person submits a proposal in response to an RFP, he or she gives up the right to protest any of the terms of the RFP." Id. at *7. However, the language in Kohl is broader than the actual holding of the case.
The contract before the court in Kohl explicitly provided that a pre-bidding protest remedy under the contract was the exclusive means for challenging the city's decision to award the contract to another bidder. Id. at *6. All of the other cases the court cited to support this proposition also contained an explicit provision in the RFP and supporting regulations, stating that submitting a bid constituted a waiver of the terms of the RFP. See Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1047 (Fed. Cir. 1994) (relying on under federal regulations, protest based upon improprieties apparent in the bidding must be raised prior to bidding); Alliant Techsystems, Inc. v. U.S. Dep't of the Navy, 837 F.Supp. 730, 737 (E.D. Va. 1993) (same); Optiplan Inc. v. School Bd., 710 So.2d 569, 572-73 (Fla. Dist. Ct. App. 1998) (failing to file protest within 72 hours of publication of specifications, as required by regulation, constituted waiver of protest); Dep't Health & Rehabilitative Servs. v. E.D.S. Fed. Corp., 631 So.2d 353, 354-55 (Fla. Dist. Ct. App. 1994). No such regulation has been brought to the Court's attention in this case.
It is true as a general principle, that a party should not be allowed to engage in a flawed process without objecting to it, reserving any objection until it learns whether it has been advantaged. Alliant Techsystems, 837 F.Supp. 736-37 ("Having waived its opportunity to protest the RFP while the possibility of changing the terms still existed, [petitioner] cannot now protest the award simply because its gamble did not pay off.") . But here, unlike the federal system, there is no specific mechanism or regulatory requirement to bring a protest regarding the RFP to the Commission's attention. It is reasonable for a bidder to expect that the Commission would comply with the law. Moreover, there is strong public policy in favor of competitive bidding, which exists to invite competition, "guard against favoritism, improvidence, extravagance, fraud and corruption, and . . . secure the best work or supplies at the lowest price practicable." Gerard Constr. Co. v. City of Manchester, 120 N.H. 391, 396 (1980) (quotation omitted). Indeed, in E.D.S. Fed. Corp., while upholding the requirement of a prior objection, the court noted that "[w]aiver does not apply . . . in transactions forbidden by statute or against public policy." 631 So.2d at 355. Given the importance of the public policy involved in the circumstances presented here, the Court cannot find that XTL has waived its right to challenge the specifications as applied by the Commission.
B
Turning next to the merits of XTL's injunction motion, according to the Commission, it issued the contested RFP on March 20, 2012. It consists of 156 pages, including appendices. There is no dispute that the Commission included provisions that allowed it broad discretion to waive particular requirements, so long as the alternative would be in the best interest of the Commission. The RFP provides, in relevant part: "The NHSLC shall solely resolve any matter requiring interpretation. At its sole discretion, the NHSLC may waive Mandatory requirements and accept alternatives deemed to be in the best interests of the NHSLC." RFP § 1.7.2. The RFP also defines "mandatory" and explains "'Mandatory' shall not limit the NHSLC, at its sole discretion, from accepting an alternative considered by the NHSLC to be equal or superior." RFP § 1.0. As part of the bidding process, bidders were permitted to ask questions that the Commission publicly answered. In response to a bidder question related to the time frame that product must be loaded for delivery, the Commission stated that alternative solutions may be proposed, and "if the alternative solution is agreeable to the NHSLC, the NHSLC has the authority to waive mandatory requirements and accept alternatives." Hearing Mem. 4 (citing RFP §1.7.2). The Commission sent this response to all bidders. Id.
The Commission characterizes this aspect of the RFP as giving it the opportunity to consider "innovative ideas." Id. XTL, however, argues that the procedure in this case essentially allowed the bidders to furnish their own specifications for certain terms of the contract, thereby allowing a variance in the matter of construction costs. XTL further explains the "flexibility" in the bidding process violated the concept of competitive bidding. XTL's Mem. Support Inj. 5. XTL relies upon Datatrol, Inc. v. State Purchasing Agent, 400 N.E.2d 1218 (Mass. 1980) in which the Massachusetts Supreme Judicial Court held that MASS. GEN. LAWS c. 7, § 22 (2013) prohibited what it called "problem-oriented bid specifications." The Datatrol opinion relied upon a line of Massachusetts cases that held where each bidder is invited to bid on its own specifications, there can be no real competition. Id. at 1228 (citing Burt v. Municipal Council of Taunton, 176 N.E. 511 (Mass. 1931)). The RFP before the court in Datatrol sought "to solicit technical and cost proposals for the procurement of equipment and support services necessary for the implementation and operation of an On-Line Number Selection Lottery Processing System." Id. at 1220. The court noted, "the RFP does not set out a description of many aspects of the system itself" and was characterized by the agency authorizing the RFP as a "problem oriented bid specification," which "stated a general problem to be solved [and then] bidders were to supply the specifications of a system that would solve the problem." Id. at 1221-22. The RFP further explained: "It is to be understood that awards will be made to successful vendors based upon the criteria listed above[,]" but "[t]his may not result necessarily in an award to the lowest bidder." Id. at 1223. In holding that the RFP violated the statute, the court emphasized that an RFP must be specific in order to ensure that the department can evaluate all the bidders on a common footing. Id. at 1299. The gravamen of the court's opinion was that the "specifications must state the quantity and quality of the (items) required with as much certainty and definiteness as may be practicable." Id. (citing Sweezey v. City of Malden, 174 N.E. 269, 270 (Mass. 1931)).
This Court is not persuaded that Datatrol and its progeny are applicable in this case. In the first place, this line of cases is based upon MASS. GEN. LAWS c. 7, § 22, which is a specific and detailed statute that requires standardization of specifications for purchasing supplies and equipment and standardization of other property, quality grades and brands. MASS. GEN. LAWS c. 7, § 22(8) & (9). XTL has cited no other jurisdiction that flatly prohibits "problem oriented bidding," and it is not apparent that the Massachusetts prohibition rests on the view that the practice is inconsistent with competitive bidding but rather it appears to be based on the peculiarities of Massachusetts law.
MASS. GEN. LAWS c. 7, § 22 states:
The secretary shall, subject to the approval of the governor and council, make rules, regulations and orders which shall regulate and govern the manner and method of the purchasing, delivering and handling of, and the contracting for, supplies, equipment and other property for the various state departments, offices, and commissions, . . . . Such rules, regulations and orders shall be of general or limited application, and shall, so far as practicable, be uniform, . . . and shall include provision for the following:By comparison, RSA 21-I:11-b states:
(1) The advertisement for and the receipt of bids for supplies and other property and the stimulation of competition with regard thereto;
. . .
(4) The purchasing of or contracting for certain supplies, equipment and other property by long or short term contracts, or by purchases or contracts made at certain seasons of the year, or by blanket contracts or orders covering the requirements of one or more departments, offices and commissions;
(5) Prescribing the times for submitting estimates for various supplies, equipment and other property;
(6) Regulations to secure the prompt delivery of commissary and other necessary supplies;
(7) Standardization of forms for estimates, orders and contracts;
(8) Standardization of specifications for purchasing supplies, equipment and other property;
(9) Standardization of quality, grades and brands to eliminate unnecessary number of commodities or of grades or brands of the same commodity;
(10) The purchase of supplies and other property locally, upon permission, specific or otherwise, of the state purchasing agent;
(11) The use and disposal of the products of state institutions;
. . .
(14) The testing of commodities or supplies or samples thereof;
(15) Hearings on complaints in respect to the quality, grade or brand of commodities or supplies;
(16) The waiver of rules in special cases.
(17) A preference in the purchase of supplies and materials, . . . sold within the commonwealth, with a proviso that the state purchasing agent may, where practicable, allow a further preference in favor of such supplies and materials manufactured and sold in those cities and towns within the commonwealth which have been designated as depressed areas. . . . .
...
For the information of the public and of prospective bidders, the state purchasing agent shall keep and maintain a public list or bulletin enumerating the supplies and materials to be purchased or contracted for and the dates on which bids for the same will be received. Bids shall be opened in public.
I. The purpose of this section is to promote procurement practices and procedures which the general court believes will improve the state's procurement process while at the same time establishing a vendor selection procedure which, among other things, is specifically geared toward reducing unemployment and stimulating economic growth in this state.
II. To promote business in this state, when qualified lowest bids, proposals, or quotations are received by the division of plant and property management at the same price, the division's selection or recommendation for selection shall, if the process is not cancelled by the state, be made by drawing lots, provided, however, that if only one of the vendors offering that price has a principal place of business in New Hampshire, that vendor shall, if the process is not cancelled by the state, be selected or recommended for selection. When qualified lowest bids, proposals, or quotations are received at the same price from more than one vendor which has a principal place of business in New Hampshire, selection or recommendation for selection shall, if the process is not cancelled by the state, be made by drawing lots from among the vendors with a principal place of business in New Hampshire.
But more importantly, XTL has not established that the process in this case did not constitute competitive bidding. This is not a case where, for example, a bid process was deemed flawed because street paving bidders were permitted too much latitude in submitting specifications as to composition and manner of laying the street surfaces in their respective bids. Sweezey, 174 N.E. at 271 ("To permit each bidder to furnish his own specifications for the construction of the wearing surface might, and probably would, allow a substantial variance in the manner of construction and its cost."). As the Commission noted in its memorandum of law, each bidder in this case received detailed requirements and specifications in the RFP and appendices that totaled 156 pages. The RFP sought proposals for warehouse services that met numerous specific requirements including size, location, physical plant, security, hours of operation, and electronic inventory control.
Nonetheless, at oral argument, XTL asserted that the State waived a two warehouse requirement with respect to Exel's bid, and that such a waiver of a mandatory provision is simply impermissible. Even under Massachusetts law, "the rationale of the common footing requirement is to make possible a mathematically precise comparison based on price. When the awarding authority can consider factors other than price, it should be permitted to state its evaluation criteria and its needs and to request competition on all of the criteria." Datatrol, 400 N.E.2d at 1230. Courts in other jurisdictions have approved allowing bidders to propose or suggest innovations. See 10 MCQUILLIN MUN. CORP. § 29:33 (3d ed. 2012); see also, Sys. Dev. Corp. v. Dep't of Health & Rehabilitative Servs., 423 So.2d 433, 434-35 (Fla. 1982) (discussing the court's experience observing "companies making competitive proposals in the field of systems procurement . . . suggest[ing] technologically innovative approaches"); Tidewater Mgmt. Servs., Inc. v. U. S., 573 F.2d 65, 77 (Ct. Cl. 1978) ("The Government was free to accept a proposal incorporating innovative techniques with resulting economy and advantage to the United States.").
Additionally, XTL submitted a "Motion to Add Newly Discovered, Relevant Evidence to the Record" on May 2, 2013, attempting to include evidence that the Commission waived certain other material RFP requirements. Even if the Court credits this testimony as this preliminary state, this evidence does not warrant an award of an injunction to XTL because if the bid process was flawed, as XTL alleges, there is no guarantee XTL would receive the contract. The entire process, including the ranking hierarchy as it stands now, would be flawed. Even more importantly, as will be discussed below, the Court must consider the interests to XTL and the public as a whole.
Explaining:
In contrast to bids, a request for proposals (RFP) is used when the public authority is incapable of completely defining the scope of work required, when the service may be provided in several different ways, when the qualifications and quality of service are considered the primary factors instead of price, or when responses contain varying levels of service which may require subsequent negotiation and specificity. A request for proposals (RFP) is a more flexible alternative to competitive bidding for a public contract, and while it is true that all who submit proposals must be treated fairly, there is no legal requirement that a final contract must conform to the original RFP. In awarding a public contract, a public body is not entitled to omit or alter material provisions required by its request for proposals (RFP) because in doing so the public body fails to inspire public confidence in the fairness of the RFP process.
Based on the offers of proof presented, the Court cannot find that the RFP in this case, and the subsequent negotiations that were publicly underwritten, were so devoid of structure that the process did not constitute competitive bidding, as required by New Hampshire law. Thus, XTL has not established a likelihood of success on the merits.
IV
Moreover, XTL has not established that it lacks an adequate remedy at law and that the grant of an injunction would be in the public interest. UniFirst Corp., 130 N.H. at 14. The New Hampshire Supreme Court has specifically held that when a bidder relies on a public entity's offer to award the contract, if at all, to the lowest responsible bidder, and the public entity breaches that offer, in bad faith, then the bidder may obtain damages for promissory estoppel. Marbucco, 137 N.H. at 633 (citing RESTATEMENT (SECOND) CONTRACTS § 90). Those damages are limited to the damages that the unsuccessful low bidder sustained directly by reason of its participation in the bidding process, i.e., its bid preparation costs. Marbucco, 137 N.H. at 634. Only if the low bidder complies with all requirements of the bid instructions but is deprived of the contract through some conduct of the awarding authority tantamount to bad faith, may the expectancy damages—lost profits—be awarded. Id. Recognizing this fact, XTL argues that an injunction is necessary to provide it with some remedy because it does not allege that the Commission acted in bad faith, and therefore it has no right to expectancy damages. This Court disagrees.
Massachusetts courts have held that a bidder's ability to recover bid preparation costs after trial is not an adequate remedy at law because it is a "consolation prize" that "pales in comparison to an award of the contract," reasoning that without a preliminary injunction, whatever profits the bidder may have received upon completion of the work would be lost forever and could not be recovered in an action at law. Petricca Constr. Co. v. Commonwealth, 640 N.E.2d 780, 785 (Mass. App. Ct. 1994) (citing Modern Continental Constr. Co. v. City of Lowell, 465 N.E.2d 1173, 1178 (Mass. 1984)). However, this is not the majority rule. See Ritchie Paving, Inc. v. City of Deerfield, 61 P.3d 669, 676 (Kan. 2003) (discussing the factual distinction between a lowest responsible bidder who is not selected and the circumstance when a requesting agency considers factors that it has not made available to the public, but still approving an award of bid preparation damages pursuant to promissory estoppel in the latter situation); Kajima/Ray Wilson v. Los Angeles Cnty. Metro., 1 P.3d 63, 69-70 (Cal. 2000) (finding only two cases that awarded lost profits in factually similar circumstances); Telephone Assoc., Inc. v. St. Louis Cnty. Bd., 364 N.W.2d 378, 383 (Minn. 1985) (awarding recovery under promissory estoppel, but limiting damages to those "sustained by reason of its justifiable reliance upon the County's promise— . . . the expenses it incurred in its unsuccessful participation in the competitive bidding process as well as the costs incurred in its successful attempt to have the award . . . rescinded") (citing Owen of Georgia, Inc. v. Shelby Cnty., 648 F.2d 1084 (6th Cir. 1981)); see also, 65 A.L.R.4th 93 § 17 (1988).
The procedural circumstances presented in Kajima are strikingly similar to those in this case:
[T]he most effective enforcement of the competitive bidding law is to enforce by injunction the representation that the contract will be awarded to the lowest responsible bidder. This is generally done by setting aside the contract award to the higher bidder. However, as a practical matter, by the time the basis for relief is persuasively demonstrated, the underlying contract may already have been substantially or fully performed. That is apparently what happened here, and this scenario seems recurring. Hence, once injunctive relief is no longer an effective remedy, the question arises whether monetary relief is available, and if so, what the appropriate measure of damages is in this context.Id. n.1 (quotations and citations omitted).
Although the New Hampshire Supreme Court has never considered this issue, there is no reason to believe it would follow Massachusetts law. First, Massachusetts case law flows directly from MASS. GEN. LAWS c. 7, § 22, which is substantively distinct from RSA chapter 21-I. Second, it is the minority rule. See Kajima, 1 P.3d at 70. Thus, the fact remains that XTL has not been awarded the contract, and even if the Court enjoined the award to Exel and required a new RFP, the Commission might never select XTL. This bare expectancy must be balanced against the interests of the public. 70 AM. JUR. PROOF OF FACTS 3D, Proof That a Government Agency Was Liable for Improperly Granting a Bid Award to a Bid Applicant 97 § 13 (2002) ("[t]he public-project bid process was designed to protect the public tax dollars from waste, and to assure that taxpayers receive services, quality work, and goods and commodities for the lowest reasonable price."). Enjoining the Commission's award of the contract, which is necessary in order for the Commission to carry out its legitimate functions, would not be consistent with the public interest. See Kajima, 1 P.3d at 70. The Commission's current contract will expire on October 30, 2013. At that time, if a new vender is not available to provide the State with liquor warehousing services, the public interest will be adversely affected. See Ritchie, 61 P.3d at 674 ("the competitive bidding statutes are enacted to benefit the public and . . . the doctrine of estoppel may not be invoked against a public entity where it effectively would defeat operation of a policy adopted for public protection").
Finally, and perhaps most importantly, the New Hampshire Supreme Court has explicitly stated that it is guided by the analysis of promissory estoppel in RESTATEMENT (SECOND) CONTRACTS § 90 (1979) in determining whether a disappointed bidder may recover damages after failing to obtain a contract from a government agency. Marbucco v. City of Manchester, 137 N.H. at 633. The RESTATEMENT specifically limits damages on a claim of promissory estoppel to those damages incurred in detrimental reliance on the promise, unless there is bad faith involved:
8. A applies to B, a distributor of radios manufactured by C, for a "dealer franchise" to sell C's products. Such franchises are revocable at will. B erroneously informs A that C has accepted the application and will soon award the franchise, that A can proceed to employ salesmen and solicit orders, and that A will receive an initial delivery of at least 30 radios. A expends $1,150 in preparing to do business, but does not receive the franchise or any radios. B is liable to A for the $1,150 but not for the lost profit on 30 radios.RESTATEMENT (SECOND) CONTRACTS § 90, illus. 8 & 9 (citation omitted).
9. The facts being otherwise as stated in Illustration 8, B gives A the erroneous information deliberately and with C's approval and requires A to buy the assets of a deceased former dealer and thus discharge C's "moral obligation" to the widow. C is liable to A not only for A's expenses but also for the lost profit on 30 radios.
If XTL did succeed at trial in proving that the Commission's RFP process was tainted, it would be able to recover its expenses for bidding upon the contract, as discussed above. That it may also lose the opportunity to obtain contract damages for a contract it has not establish it was entitled to, is insufficient to overcome the State's weighty interest in having a vendor available to it on October 30, 2013.Thus, XTL's Petition for Preliminary and Injunctive Relief is DENIED.
In its Petition, XTL did not allege bad faith on the part of the Commission. However, in a post hearing filing, XTL has alleged in substance that the Commission did in fact, act in bad faith. The Court considers this filing only to the extent that it notes that if XTL can prove its allegations, then it can recover its expectancy damages. This allegation diminishes, rather than supports, its request for injunctive relief.
V
Finally, XTL filed a Supplemental Petition to its original Petition for a Preliminary Injunction on March 27, 2013 that requests this Court also enjoin an award of a liquor-trucking contract to Exel. XTL explains the Commission posted a notice of intent to release an RFP for liquor transportation that presupposes Exel will win the contract and the currently pending warehouse-contract dispute because it states: "We are requesting bids to provide trucking (transportation) services to stores from the Bow Warehouse for the period November 1, 2012 through January 15, 2018." Pet'r's Supp. Pet. ¶ 2 (emphasis added). XTL argues that because this RFP notice states that the warehouse is in Bow, it presumes the Commission will win this case, and it presupposes Exel will win the RFP contract for trucking as well. Because XTL disputes the award of the warehousing contract to Exel and moved to enjoin it, XTL also moves to enjoin award of the liquor-trucking contract until the warehouse-contract dispute is resolved.
For the reasons discussed above, because the Court may not award an injunction for the warehousing contract, it would be inappropriate to enjoin the liquor-trucking contract. XTL's Supplemental Petition requesting an injunction for the trucking contract is therefore also DENIED. SO ORDERED.
________________
Richard B. McNamara,
Presiding Justice