Opinion
No. CV 04-4001148S
July 19, 2006
MEMORANDUM OF DECISION
The plaintiff, Yardscapes, Inc. has alleged causes of action for breach of contract (First Count) and breach of the covenant of good faith and fair dealing contained within the contract (Second Count). After trial the court finds the following facts.
In the fall of 2003 the defendant, Town of East Haddam ("Town"), sent a document entitled "Documents for Bid of Winter Snowplowing" to certain contractors, including the plaintiff. The Town also placed a related legal advertisement in the newspaper. The Documents for Bid of Winter snowplowing set forth conditions that the contractors would have to meet in order to perform Snowplowing work for the Town.
The Documents for Bid also provided:
The Contractor shall be available for snow removal on an "On Call" basis and is required to supply the Public Works Department with telephone, pager or mobile phone numbers to be contacted before snow removal operations. In addition the Contractor shall have a means of communication with the Public Works Department Director and/or Road Foreman during the "All Out" (i.e., two-way radio or mobile phone).
The Public Works Director or Road Foreman will contact the Contractor when a minimum of four (4) inches of snow has accumulated (unless otherwise agreed upon) and will instruct the Contractor as to the proper route and procedure to follow.
The Contractor will be paid an hourly rate for actual time spent plowing/sanding and will be required to notify the Public Works Director or Road Foreman at the start of the shift, during rest breaks and breakdowns, and at the end of the shift.
The purpose of sending out the Documents for Bid was to compile a list of contractors who were willing to do snowplowing work for the Town and to set a price based on the prices listed by the contractor when it returned the "Instruction to Bidders" sheet, which was part of the Documents for Bid.
The Instruction to Bidders contained the following language:
The Town of East Haddam (herein called the Town) reserves the right to waive any informalities or defects in any bid. The Town also reserves the right to refuse any and all proposals and is under no obligation to accept the lowest bid if the Board of Selectmen, in its sole discretion, deems it to be in the best interest of the Town.
The Instruction to Bidders also contained the descriptions of two different sizes of truck and two different sizes of sanders and had blank spaces next to each item in which the contractor filled in the hourly cost of the particular truck or sander. In November 2003, the plaintiff had performed snowplowing services for the Town in six previous seasons. On November 11, 2003, the plaintiff completed the Instruction for Bidders form, noting that it had three trucks in the "up to 10,000 lb GVWR" category for which it charged $62 per hour and a V-jet sander for which it charged $20 per hour. The form was signed by Joseph Albuquerque as president of Yardscapes, Inc. and J. Sabia Albuquerque, his wife, as vice president and was returned to the Town by November 12, 2003.
By letter dated December 1, 2003 the Town advised the plaintiff and other contractors that, "We will include on our call-out list everyone who responded to our request for proposal. However, proposals that were received late will be on a second choice call out." The letter also included hourly pay rates for contractors who provided snowplowing services. Attached to this letter was a list of five contractors, including the plaintiff, whose bids had been received by November 12, 2003, and a sheet which indicated that the bid of one contractor, R. Sikorski Landscaping, Inc. "Sikorski"), had been received one day late, on November 13, 2003. The plaintiff admits that neither the Documents for Bid, nor the December 1, 2003 letter guaranteed that any contractor would receive any amount of snowplowing business from the Town. Moreover, nothing specified what area, route or street any contractor would plow, or how many ours the plaintiff or any other contractor would work.
The Collective Bargaining Agreement between the Town and the Teamsters Union in effect during the winter of 2003-2004, contained the following language:
a.) Town Highway department employees will be called to work (Called-Out) in order of seniority with all employees of the Town Highway Department to be called to work prior to Subcontractor Call-Out. The determination of number of employees to be called-out shall be within the discretion of the First Selectman, Public Works Director or Road Foreman (herinafter designated as the On-Call Supervisor).
b.) Subcontractors will be Called-Out for winter storms with predicted accumulations of (4) inches or more or when Town vehicles or when personnel are unavailable for work. Subcontractors will be called "as needed" based on road conditions and predicted weather forecasts, the On-Call Supervisor will determine the number of contractors, Call-Out time and length of service for each contractor.
The First Selectman of the Town, Susan Merrow, testified that the purpose of sending out the Documents for Bid was not to solicit bids for the performance of specific work at a specific time for a stated amount. Rather, it was to determine the willingness of contractors to perform work for the Town and to determine what various contractors charged so the Town could determine the rate it would pay to contractors.
Bradley Parker, who succeeded Susan Merrow as First Selectman in November 2003, testified that even though Sikorski was one day late with its bid, the Town generally called that contractor out for the Lake Hayward Route because of the size of its truck and the good experience the Town had had with Sikorski in the past. Sikorski had a truck that was larger than the plaintiff's trucks with a larger sander and a larger plow. Mr. Parker, and Frank Constantine, the Town's director of public works, believed that it was in the best interest of public safety to regularly assign the Lake Hayward route to Sikorski.
The plaintiff also claims that the Town called upon it for snowplowing work less than it called upon other contractors because Frank Constantine refused to deal with women, including Julie Albuquerque, the plaintiff's vice-president. In a meeting with Joseph Albuquerque Mr. Constantine did not say that he refused to deal with women. Instead, he said that he did not want to talk to Mr. Albuquerque's wife about a snowplowing job because she was not the one who would be performing the work. When Mr. Constantine was advised that Mr. Albuquerque's wife was the vice president of the plaintiff, he was no longer disinclined to deal with Mrs. Albuquerque. The court does not find that any bias towards women played any role in the relationship between the Town and he plaintiff.
There were times that Sikorski was called out when the plaintiff was not called out to plow. Joseph Albuquerque admitted that on several occasions when the Town called the plaintiff to perform snowplowing work, the plaintiff refused to perform the work.
Joseph Albuquerque testified that the plaintiff had lost some work because it relied on having a certain amount of work from the Town and, therefore, did not bid on certain other jobs. The court does not find that his testimony was credible. Mr. Albuquerque also testified that the plaintiff was able to secure work from the "lost" jobs customers after it became apparent that it would not receive the level of work it anticipated from the Town. He also testified that he received many last minute calls to perform snowplowing services from customers other than the Town. While the Town generally called a day in advance based on predicted snowfall. Therefore, his testimony that his alleged contract with the Town required the plaintiff to forego last minute jobs was not credible. If it committed to work for the Town in advance, then the plaintiff would not have been available for last minute jobs, so it would not have "lost" those jobs. If it declined to commit to work for the Town in advance because it did not have confidence that the snowfall prediction was accurate, then it would have been available for last minute jobs.
Discussion of the Law and Ruling
In the First Count of the complaint the plaintiff alleges that the plaintiff submitted a written bid to be a provider of winter snowplowing services which the Town accepted when it notified the plaintiff that it was on the Town's list of snowplowing contractors, forming an express contract.
Under established principles of contract law "an agreement `must be definite and certain as to its terms and requirements.' " Presidential Capital Corp. v. Reale, 231 Conn. 500, 506, 652 A.2d 489 (1994); 1 Restatement (Second), Contracts § 33, comment (e), p. 94 (1981). Moreover, where "the memorandum appears [to be] no more than a statement of some of the essential features of a proposed contract and not a complete statement of all the essential terms," the plaintiff has failed to prove the existence of an agreement. Westbrook v. Times-Star Co., 122 Conn. 473, 481, 191 A. 91 (1937).
While the Documents for Bid used the terms "bid" and "contract," they were not inviting a bid for a specific contract. Rather, they invited snowplowing contractors like the plaintiff to be placed on a list to provide services to the Town. The plaintiff's response was not a bid in the sense in which that term is generally understood — See John J. Brennan Construction Corporation v. Shelton, 187 Conn. 695, 448 A.2d 180 (1982). Rather, the plaintiff indicated the types of snowplowing vehicles it had available and the hourly rates it charged for those vehicles. The Town's letter of December 1, 2006 did not form an enforceable contract. It did not guarantee any specific number of hours to the plaintiff or any other contractor, did not require the plaintiff or any other contractor to be available for any specific dates and did not commit to give any certain proportion of work to the plaintiff or any particular contractor.
When a contractor such as the plaintiff was called, it could refuse to work for the Town as the plaintiff did on several occasions. If the contractor accepted the snowplowing job, an executory contract was formed. Under that contract the contractor's work was governed by the conditions in the Documents for Bid and the contractor was paid for work that it performed in accordance with he rates set by the Town in its letter of December 1, 2006.
The gravamen of the plaintiff's complaint is that the Town's statement in its December 1, 2003 letter, "[w]e will include on our call-out list everyone who responded to our request for proposal. However, proposals that were received late will be on a second choice call out," created a contract which was breached when the Town called out Sikorkski, who had submitted a bid one day late, before it called out the plaintiff.
For the reasons set forth above, the December 1st letter did not create a contract and the quoted language did not impose any obligation on the Town to favor the plaintiff over Sikorski. Such an obligation would be contrary to the law which holds that municipal competitive bidding laws are enacted to benefit the taxpayers and not the bidders. John J. Brennan Construction Corporation v. Shelton, supra, at 702; Austin v. Housing Authority, 143 Conn. 338, 345, 122 A.2d 399 (1956); 10 McQuillin, Municipal Corporations (3d Ed. Rev.) 29.29. Moreover, interpreting the language of the December 1st letter in the manner urged by the plaintiff would have improperly limited the Town's discretion to use those contractors who best served the needs of the safety and welfare of the public.
In the Second Count of the complaint the plaintiff alleges that the Town breached its covenant of good faith and fair dealing in its contract with the plaintiff by discriminating against Julie Albuquerque on the basis of her sex and denying her company snowplowing work. The duty of good faith and fair dealing is "[e]ssentially a rule of construction, designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." Verrastro v. Middlesex Insurance Co., 207 Conn. 179, 190, 540 A.2d 693 (1988). "The implied covenant of good faith and fair dealing requires faithfulness to an agreed common purpose and consistency with the justified expectation of the parties in the performance or enforcement of every contract." Magnan v. Anaconda Industries, 193 Conn. 558, 566, 479 A.2d 781 (1984).
The documents relied upon by the plaintiff did not create any contract between the parties. Therefore, the defendant could not have breached an implied covenant. Moreover, the court finds that to the extent the Town gave more work to other contractors than the plaintiff thought it should, that work was awarded in the best interest of the safety and health of the public and not because of any bias the Town's employees had towards women in general or Julie Albuquerque in particular. For the foregoing reasons, judgment may enter in favor of the defendant, the Town of East Haddam.