Airport Fuel Services, Inc.
Martha's Vineyard Airport Commission et al No. 136983
MEMORANDUM OF DECISION AND ORDER ON THE
PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
Mitchell H. Kaplan, Justice
action arises out of the defendant, Martha's Vineyard
Airport Commission's (the Commission) decision to award a
lease of Lot #33 in the Airport Business Park (the Property)
to the defendant, Depot Corner, Inc. (Depot), following a
public bidding procedure. The Plaintiff, Airport Fuel
Services, Inc. (AFS), has been the lessee of the Property
pursuant to a 20-year lease that expired on March 9, 2017
(the Lease). It constructed a gas station, convenience store,
and car wash on the Property and operated them over the term
of its lease. In its complaint, AFS alleges that " the
2017 RFP issued by [the Commission] was misleading and an
inherently unfair proposal" and seeks an order requiring
the Commission to lease the Property to it, according to its
bid proposal. The case is before the court on AFS's
motion for a preliminary injunction enjoining the Commission
from leasing the Property to Depot.
following facts are taken from the affidavits and documents
submitted in support of and opposition to the motion for
the terms of the Lease, AFS was permitted to construct the
gas station, convenience store, and car wash which it
operated over the Lease term. However, Section Eleven of the
Lease provided that: " Lessee shall, on the last day of
the term, or on earlier termination and forfeiture of the
lease, peaceably and quietly surrender and deliver the
Premises to Lessor at Lessor's option free of subtenants,
buildings, additions, and improvements constructed or placed
thereon by Lessee." 
2014, the Commission issued a Request for Proposal (RFP) for
a lease for the Premises to commence after the expiry of the
AFS Lease, but RFP was withdrawn for reasons that do not
affect the court's ruling on the issues raised by the
December 30, 2016, the Commission issued the RFP (which it
titled: Request for Qualifications) for a new lease of the
Property which is the subject of the present action. In the
first section of the RFP, entitled General Information to
Proposers, the Commission explained that it " may waive
its rights under Section Eleven" (quoted above) to
require the present lessee, AFS, to remove the buildings that
it constructed on the Property. The RFP went on to state,
[t]he successful Proposer will have the opportunity to either
negotiate a separate agreement for the purchase of the
existing facilities with the current tenant/master lease
holder or have the [Commission] exercise its rights to have
the facilities removed prior to the assumption of the
Premises. The successful Proper shall have no obligation to
purchase the existing facilities."
stated that the minimum rental that it would accept was $1.55
a square foot (resulting in an annual initial rent of $56,
119.30). According to the form of lease attached to the RFP,
this amount would adjust annually according to the CPI.
typical, the RFP set out the materials that a bidder had to
include with its proposal for that proposal to be considered.
It then went on to explain how proposals meeting the minimum
standards would be evaluated: " The evaluation process
will include each proposal being reviewed by the evaluation
committee designated by the [Commission] . . . The
[Commission] will use the comparative criterion for each
separate rating area, and based upon these criteria, will
assign an overall rating to each proposal. Each of the
criteria may contain ratings of: Not Advantageous,
Acceptable, Advantageous or Highly Advantageous." Five
" comparative criteria" were then set out in the
RFP: " Description of Operation and Statement of
Experience, Responses detailing Financial Data and Business
References; Response to Additional Narrative Information;
General Impression of Proposal; and Proposed Lease Rental
included an Attachment 16 entitled " Sample Evaluation
Form" (the Sample Form). This Attachment is somewhat
confusing. It is not clear that it is a " sample, "
but rather as to each " comparative criteria" the
form sets out specific responses that might, at least for
some categories, suggest to a reader that proposals with
certain characteristics will automatically be rated as Not
Advantageous, Acceptable, Advantageous, or Highly
Advantageous, although it seems doubtful that this is what
the Commission intended. Stated differently, the Sample Form
might be read to suggest that the Committee's evaluation
of at least some of these criteria was not subjective, but
rather certain bid responses would necessarily be scored in a
certain way--in other words a check the box evaluation.
example, with respect to the criterion entitled "
Description of Operation and Statement of Experience, "
the Sample Form states that a proposal that demonstrates
" provision of specified services for 5 to 7 years"
receives an evaluation of " Advantageous, " while a
response of " provision of specified services for over 7
years" automatically receives the evaluation--"
Highly Advantageous." Does this mean that the Committee
was not to consider how well the bidder performed the
specified services in the past? In addition, was the
Committee to disregard that part of the criterion that called
for a " Description of Operation?"
most confusing aspect of the Sample Evaluation Form involves
criterion 6--" Proposed Rental Lease Amount." There
the Form reads, in part: " Highly Advantageous--The
financial offering is one of the three highest Minimum Annual
Guarantee amounts proposed." This might suggest that if
only three bids were submitted, they each exceeded the
minimum bid, and the amount of rent proposed varied
dramatically, they would all nonetheless be rated as Highly
Advantageous; a nonsensical outcome. Among relatively,
equally competent bidders, the most important distinguishing
factor would appear to be the amount that the bidder was
offering to pay to rent the Property.
3 and 4, entitled " Response to Additional Narrative
Information" and " General impression of proposal,
" respectively clearly call for subjective evaluations.
The Sample Form offers general and non-specific sample
evaluations for each possible rating.
Commission selected three individuals to constitute the
evaluation committee (the Committee): Ann Crook, the Airport
manager; Commission Chairman Myron Garfinkle; and
Commissioner Richard Michelson. The RFP, however, made clear
that the ultimate decision of whether a proposal " will
prove to be advantageous to the [Commission]" was left
to the Commission: " The [Commission] in its sole
discretion, may select one respondent, establish of [sic]
list of successful respondents, or select no respondents and
deem the RFP cancelled or not awarded for any reason or for
" proposers" responded to the RFP: G.J. Smith, Inc.
(Smith); MVYABP Lot 34, LLC (Lot 34), Depot and AFS. Each met
the minimum requirements of the RFP and were evaluated by the
Committee at a meeting on March 1, 2017. The Smith proposal
offered $2.21 a square foot, by far the lowest amount of the
four bidders, and its other submissions were judged weak. The
Lot 134 proposal offered the highest rent, $5.00 a square
foot. Lot 134, however, wanted to develop the Property
together with an adjoining lot that it was already leasing
from the Commission, an approach that the Commission did not
favor. According to the Committee, ...