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Revoli Construction Co., Inc. v. City of Quincy

Superior Court of Massachusetts, Norfolk

May 11, 2018

REVOLI CONSTRUCTION CO., INC., Plaintiff
v.
CITY OF QUINCY, Defendant

          MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

          Peter B. Krupp, Justice Superior Court

          Plaintiff Revoli Construction Co., Inc. ("Revoli") filed this action to challenge the award of a municipal contract in the City of Quincy ("the City") to C. Naughton Corp. ("Naughton"), which was not the lowest qualified bidder for the work. Revoli seeks to enjoin the City from signing a contract with Naughton. After hearing, and review of the relevant authorities, I find Revoli has a reasonable likelihood of succeeding on the merits and that Revoli will be irreparably harmed if a contract is signed with Naughton; and issue the appropriate injunction.

         BACKGROUND

         In early April 2018, the City issued an invitation to bid on a water main improvement project ("the Project") in the City in two phases-Phase A and Phase B-each covering different streets in the City. The Invitation to Bid required the work on certain streets to be substantially completed on dates during the summer and fall of 2018, with all of the work complete and ready for payment by November 16, 2018. The City’s bidding documents allowed any bidder to submit bids for Phase A, Phase B, or both, but purported to reserve discretion to the City to decide how the bids would be awarded. Specifically, the bid documents stated:

If the Contract is to be awarded:
• The City of Quincy may award the Contract to the lowest responsive and responsible Bidder. One single Contract for PHASE A and PHASE B combined may be awarded,
OR
• If it is in the best interest of the City of Quincy to do so, one Contract may be awarded for PHASE A to the lowest responsive and responsible Bidder for the PHASE A scope of work AND A SEPARATE Contract may be awarded to the lowest responsive and responsible Bidder for the PHASE B Scope of Work. In the case of the same Bidder having the lowest bid price for both PHASE A and PHASE B, a Contract may be awarded to the next lowest responsive and responsible Bidder for the PHASE B Scope of Work. (Emphasis omitted).

         Revoli bid on both phases of the project. The bids were opened on April 10, 2018. Revoli was the lowest bidder on both phases of the project.[1] On April 26, 2018, the City awarded Phase A to Revoli. On the same date, the City’s project engineer notified Revoli that Phase B would be awarded to the second lowest bidder, Naughton, as the City had determined it was in its best interest to do so. The parties agree that both Revoli and Naughton were determined by the City to be eligible and responsible bidders for Phase B.

         DISCUSSION

         To obtain a preliminary injunction, a plaintiff must establish (1) it is likely to succeed on the merits of its claim, (2) it will suffer irreparable harm absent the requested relief, (3) and its harm, without the injunction, outweighs the potential harm to defendant if the injunction is issued. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). "When, as here, a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public." Tri-Nel Management, Inc. v. Bd. of Health of Barnstable, 433 Mass. 217, 219 (2001).

          The parties agreed at argument that analysis of the likelihood of success on the merits is the whole ball of wax in the context of this competitive bid challenge. Because a successful challenger to a competitive bid award is generally not entitled to recover its lost profits after the awarding authority signs a contract with another contractor, the courts have recognized that irreparable harm flows from a failure to follow the competitive bidding statutes and the award of a contract in violation of those provisions.[2] Modern Continental Const. Co., Inc. v. Lowell, 391 Mass. 829, 837 (1984); Petricca Const. Co. v. Commonwealth, 37 Mass.App.Ct. 392, 399 (1994). Moreover, the public interest is served by the enforcement of the requirements of the public bidding law.

         Under G.L. c. 30, § 39M(a), para. 4, "[e]very contract for the construction, reconstruction, alteration, remodeling or repair of any public work ... shall be awarded to the lowest eligible responsible bidder on the basis of competitive bids publicly opened ..., provided, however, that such awarding authority may reject any and all bids, if it is in the public interest to do so." The "public interest" exception does not authorize the awarding authority to reject the "lowest eligible responsible bidder" for any reason. To the contrary, the public bidding statutes are designed "to ensure that the awarding authority obtain the lowest price among responsible contractors" and "to establish an open and honest procedure for competition for public contracts," Modern Continental, 391 Mass. at 840, facilitating "the elimination of favoritism and corruption as factors in awarding of public contracts." John T. Callahan & Sons, Inc. v. Malden, 430 Mass. 124, 128 (1999), quoting Interstate Engineering Corp. v. Fitchburg, 367 Mass. 751, 758 (1975).

          In J. F. White Contracting Co. v. Massachusetts Port Auth.,51 Mass.App.Ct. 811 (2001), for example, the court upheld a bid process, which asked for bids for work using one of two alternative materials, reserving to itself the right to choose which of the two materials would ultimately be in its best interest. After the bids were received, the public authority selected the material it decided to use and was ...


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