MEMORANDUM AND ORDER ON PLAINTIFFâS MOTION FOR
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
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
Cityâs 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,
• 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).
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. On April 26, 2018, the City awarded
Phase A to Revoli. On the same date, the Cityâs 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.
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).
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. 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.
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).
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 ...