Superior Court of Massachusetts, Suffolk, Business Litigation Session
Spartan Motors USA, Inc. dba Spartan ERV
Metropolitan Area Planning Council Opinion No. 132631
MEMORANDUM AND ORDER ALLOWING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
Kenneth W. Salinger, Justice
The Metropolitan Area Planning Council (" MAPC") issued a request for proposals (" RFP") to sell fire engines, which are also known as pumpers, in late 2015 on behalf of various Massachusetts cities and towns. Spartan Motors USA, Inc., submitted a timely response. MAPC rejected Spartan's proposal on the ground that Spartan delivered its " technical proposal" and " price proposal" in the same box. Spartan insists that it submitted two boxes, one that only contained copies of its technical proposal and another containing only its price proposal. It also argues, in the alternative, that even if a price proposal binder had been incorrectly packaged with the technical proposal binders, that mistake was a " minor informality" within the meaning of G.L.c. 30B and MAPC was required by statute to waive or allow Spartan to correct the mistake. Spartan seeks a preliminary injunction that would reinstate its proposal, require MAPC to evaluate Spartan's proposal, and in the meantime extend Spartan's prior MAPC contract to sell fire engines, which expired on December 31, 2015.
The Court concludes that MAPC violated G.L.c. 30B, § 6, when it rejected and refused to consider Spartan's proposal. Assuming that Spartan improperly delivered its technical and price proposals in one box, as MAPC contends, that error did not prejudice other offerors, MAPC, or the cities and towns that may buy fire engines pursuant to contracts procured through this RFP. By law, therefore, MAPC was required to waive this harmless error and evaluate Spartan's proposal on the merits. Spartan is entitled to preliminary injunctive relief reinstating and requiring MAPC to consider its proposal because Spartan is almost certain to prevail on the merits and it is in the public interest for MAPC to comply with the requirements of this procurement statute. Since Spartan is seeking to enforce a public policy enacted by the Legislature, it need not prove that it would suffer irreparable harm if preliminary injunctive relief were not granted. But the balance of harms would favor Spartan if they were relevant. MAPC's further assertion that the Court cannot issue a preliminary injunction that would grant mandatory relief, alter the status quo, and in essence give Spartan final relief is without merit.
For all of these reasons the Court will allow Spartan's motion for a preliminary injunction at least in part. It will order MAPC to reinstate and promptly evaluate Spartan's proposal, without considering any error by Spartan in boxing up its proposal. However, the Court will not order MAPC to extend the term of Spartan's prior fire engine contract in the meantime.
1. Factual Background
MAPC is a regional planning agency that was established by the Legislature in G.L.c. 40B, § 24. It consists of representatives of various municipalities in the greater Boston area that comprise the Metropolitan Regional Planning District. See id., § 26.
MAPC conducts collective procurements under G.L.c. 30B and G.L.c. 7, § 22B, for its own members and for the Fire Chiefs Association of Massachusetts (" FCAM"). When MAPC conducts such procurements, it awards one or more contracts under which MAPC or FCAM members may then make purchases, if they wish, without having to conduct a procurement process of their own.
In October 2015, MAPC issued an RFP for contracts " to supply industry standard compliant pumper engines" to FCAM members (RFP at 7). The RFP stated that MAPC expected to award multiple contracts, and that " the number of awards will be determined on the basis of the competitiveness of the proposals received" ( id. at 47). FCAM's member municipalities will be able to purchase fire engines pursuant to any of those contracts, without having to conduct any further public procurement process. The RFP expressly required that " [p]rice and technical proposals must be submitted in separate, sealed packages" ( id. at 17, 51). In accord with G.L.c. 30B, § 6, MAPC established an Evaluation Committee to review and rate each technical proposal, without having any knowledge of the accompanying price proposal. The RFP specified that the price proposals would only be considered after the technical proposals had been rated. It correctly noted that MAPC was required by law to waive or allow a bidder to correct any " minor informality" in its submission. But the RFP also said that " [f]ailure to submit [price and technical] proposals in separate sealed envelopes will result in rejection of the proposal" ( id. at 8).
Spartan submitted its response to the RFP on November 12, 2015, the day before the final deadline (which was noon on November 13). Spartan delivered two boxes to MAPC: an MAPC staffer gave Spartan a receipt confirming that MAPC " received two packages." Spartan has submitted an affidavit from its representative stating under oath that one of the boxes contained four paper and one electronic copy of its technical proposal, that the other box contained one paper and one electronic copy of its price proposal, and that the box with the technical proposal did not contain any copies of its price proposal.
MAPC opened the various responses to this RFP during the afternoon of November 13, 2015. MAPC has submitted affidavits from the two people who opened all of the responses. They both state that they could only locate one box from Spartan, and that they have no idea what happened to the second box referenced in the receipt provided to Spartan by MAPC. They also state that the one box from Spartan that they opened contained four paper copies of Spartan's technical proposal and one paper copy of its price proposal, all together in one box. At oral argument MAPC stated that neither of the staffers who opened Spartan's box was on the Evaluation Committee responsible for evaluating the technical proposals on the basis of criteria other than price.
MAPC rejected Spartan's proposal on the ground that it was " non-responsive" because its technical proposal and price proposal had been packaged together in one box. MAPC informed Spartan on November 19, 2015, that its proposal was rejected and would not be considered for this reason.
On December 9, 2015, Spartan's legal counsel delivered a letter to MAPC arguing in part that if Spartan had inadvertently commingled its technical and price proposals in one box then that was a " minor informality" that MAPC was obligated to waive under G.L.c. 30B. MAPC responded on December 14, 2015. MAPC insisted that its " decision cannot be rescinded, " even though MAPC's response does not address--or suggest that MAPC ever considered--the statutory requirement that " minor informalities" be waived. Two days later Spartan wrote to the Massachusetts Inspector General, asking him to investigate this matter and " to advise MAPC to reinstate the Spartan bid." Spartan filed this lawsuit after the Inspector General declined to act.
Spartan is asking the Court to enforce the requirements of a public bidding statute, G.L.c. 30B, § 6. As a result, to obtain preliminary injunctive relief Spartan must prove that (1) it is likely to succeed on the merits of its claims, and (2) the requested relief will promote or at least will not adversely affect the public interest. See LeClair v. Town of Norwell, 430 Mass. 328, 331-32, 719 N.E.2d 464 (1999). Unlike in lawsuits involving purely private interests, " a showing of irreparable harm is not required" because Spartan is in essence " acting as [a] private attorney[ ] general to enforce a statute or a declared policy of the Legislature." Fordyce v. Town of Hanover, 457 Mass. 248, 255 n.10, 929 N.E.2d 929 (2010) (suit to enforce public bidding statutes, G.L.c. 149, § § 44A et seq.); accord LeClair, supra (suit to enforce the designer selection statute, G.L.c. 7, § 38A 1/2 et seq.). MAPC's argument that ...