Opinion
CV186046499
08-13-2018
SILKTOWN ROOFING, INC. v. CITY OF NEW BRITAIN, et al.
UNPUBLISHED OPINION
OPINION
Joseph M. Shortall, Judge Trial Referee
The defendants in this challenge by an unsuccessful bidder to the award of a municipal contract have moved to dismiss the complaint. They claim that the allegations of the complaint, even if true, do not make out a case of favoritism in the award of the contract. Therefore, the plaintiff Silktown Roofing, Inc. (Silktown) lacks standing to challenge the award, and the court lacks subject matter jurisdiction over the case.
The defendants are the city of New Britain, the Consolidated School District of New Britain and Elite Roofing & Restoration, LLC. The court will refer to the first two named defendants collectively as "the city."
The party claiming standing, here Silktown, has the burden of proving its right to sue. Retirement Program for Employees of Town of Fairfield v. Madoff, 130 Conn.App. 710, 715 (2011). In determining whether the court has jurisdiction every presumption favoring jurisdiction should be indulged. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214 (2009).
"An unsuccessful bidder has. standing to challenge the award of a public contract only where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials ..." (Internal quotation marks and citation omitted.) Capasso Restoration, Inc. v. City of New Haven et al., 88 Conn.App. 754, 759 (2005). There are different rules and procedures in play when deciding a motion to dismiss depending on how the parties frame the dispute over the court’s jurisdiction. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss, ... the trial court ... may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Internal quotation marks and citations omitted.) (Emphasis original.) Conboy v. State of Connecticut, 292 Conn. 642, 651-52 (2009).
In this case counsel for all parties advised the court that the jurisdictional question could be resolved on the basis of the complaint alone, without supplementary affidavits or an evidentiary hearing into disputed facts. Therefore, the court will take as true the allegations of the complaint, including any necessarily implied facts, construing those facts in the light most favorable to Silktown.
So, the facts on which the court will decide whether Silktown has standing are as follows. The specifications issued by the city for a project to replace the roof on an elementary school included, among other things, a particular type of material for the roof in a particular color for the "exposed face" of the roof: "Custom, to match Architect’s sample." Complaint, ¶ 7, exhibit A. While its bid was being prepared, Silktown "discovered" that other bidders were preparing bids, "using pricing for standard colors, rather than the custom color that was provided for in the specifications." Id., ¶ 8. Silktown inquired of the city’s project architect and project manager whether it should prepare its bid to include pricing for the custom color called for in the specifications or standard color. The latter is less expensive than custom color. Id., ¶ 9.
Both the project architect and the project manager advised Silktown that its bid "must include" pricing for custom color, not standard color. Id., ¶ 10. Accordingly, plaintiff submitted such a bid.
The roofing project was awarded to defendant Elite Roofing & Restoration, LLC (Elite), which submitted a bid that was $30,000.00 less than plaintiff’s bid. In fact, plaintiff was the third lowest bidder. Contrary to the city’s specifications for the project, and to the direction plaintiff had received from the project architect and project manager, however, Elite and the second lowest bidder submitted bids including pricing for the less expensive standard color rather than custom color. That explains why the bids submitted by Elite and the second lowest bidder were lower than plaintiff’s bid. Id., ¶ 17.
Plaintiff requested that Elite and the second lowest bidder be disqualified because their bids failed to conform to the published specifications, but to no avail.
Based on these facts, plaintiff alleges that the city engaged in favoritism by: (1) requiring plaintiff, by way of the city’s project specifications and directions given by its project architect and project manager, to submit a bid that included the more expensive custom color, while (2) permitting Elite and the second lowest bidder to submit bids that included the less expensive standard color, and (3) awarding the project contract to Elite, a non-conforming bidder. Id., ¶ 20. Beside alleging the irreparable harm to it caused by the city’s action, plaintiff alleges that the public’s interest in getting "the best product at the lowest price" will be vindicated by the court’s either awarding the contract to plaintiff or opening it to re-bidding. Id., ¶ 23.
"Favoritism" has been defined by Superior Court judges in cases in which the award of a public contract has been challenged. In Meta-Life, Inc. v. Town of Hamden et al., Superior Court, judicial district of New Haven, Docket No. CV 09 5032680, 2010 WL 2817488 (June 7, 2010), the court said, "(T)he concept of favoritism ... simply appears to mean a situation where the chosen bidder has received an advantage not afforded to other bidders, thereby skewing the competitive bidding process and its aims." 2010 WL *7. And, the court in DATTCO, Inc. v. City of New Britain Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 18 6042800, 2018 WL 2293047 (Apr. 27, 2018), cited to the definition of "favoritism" in Black’s Law Dictionary (10th Ed. 2014), "preference or selection, usu. invidious, based on factors other than merit," and endorsed the Meta-Life definition. 2018 WL *7.
This court believes that the facts alleged in the complaint, taken as true, fit within that definition.
Based on the facts alleged in the complaint, Elite was given an advantage over Silktown when its nonconforming bid was accepted over Silktown’s bid, which conformed not only to the published specifications but also to the directions it received from the project architect and project manager, whom the court considers the city’s agents under the allegations of the complaint. From the allegations of the complaint it appears that Elite’s bid was accepted not on its merits but because it was $30,000.00 less than Silktown’s bid, and it was less than Silktown’s bid because it included the less expensive standard color.
Plaintiff has not alleged corruption or bad faith on the part of the city, and such an allegation is not necessary. "Good faith will not insulate a municipality from claims for injunctive relief against the awarding of a contract." Meta-Life, Inc. v. Town of Hamden et al., supra, 2010 WL *7. Just as in Spiniello Constr. Co. v. Town of Manchester, 189 Conn. 539, 543 (1983), the court assumes that New Britain’s officials "acted out of the highest motives to do what was best for [New Britain], namely, to save approximately [$30,000.00] by awarding" the contract to the lowest bidder, regardless of whether the bid conformed to the project specifications. Nevertheless, in awarding the contract to a nonconforming bidder they exhibited favoritism to Elite to the disadvantage of Silktown.
Defendants attempt to distinguish Spiniello from this case because in that case Manchester officials advised one of the bidders that it could submit a reduced bid conditioned on both of the two projects under bid being awarded to it, without communicating the same opportunity to other bidders. Id., 542. There is no similar allegation here. But, according to the complaint, agents of the city instructed Silktown that it "must include pricing for custom color membrane"; Complaint, ¶ 10; thus putting it at a disadvantage to Elite, whose bid was accepted by the city even though it diverged from the project specifications and from the instruction given to plaintiff by the city’s agents.
The city also complains in its motion to dismiss that plaintiff fails to allege any injury to the public from the award of the contract to Elite rather than Silktown. See Conn. Associated Builders & Contractors v. City of Hartford, 251 Conn. 169, 179-80 (1999).
Presumably, the city believed that a custom color for the roof that conformed to a sample provided by the architect was an optimum component of the roof replacement project. The competitive bidding process was intended to obtain the lowest price for the roof as described in the specifications. Yet, the city accepted a bid that did not conform to the specifications but was $30,000.00 less than plaintiff’s because of its nonconformity, according to the complaint. This is an example of how the "object and integrity of the competitive bidding process is defeated" by giving preference on a factor other than merit. Thus, Silktown’s challenge to the city’s acceptance of Elite’s bid vindicates the public’s interest in obtaining the lowest bid that conforms to the project specifications.
For the reasons set forth in this memorandum, the motions to dismiss are DENIED.
Given the public importance of deciding whether a temporary injunction should issue, the court will hear evidence and argument on that question on Wednesday, August 22, and, if necessary, Thursday, August 23, 2018.
Defendants are temporarily restrained from proceeding with construction of the new roof for the Smalley School until after the request for a temporary injunction has been heard and decided.