Opinion
No. CV-03-0824851 S
June 25, 2003
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS
This matter is before the court on motions to dismiss filed by the defendants, State of Connecticut Department of Public Works (DPW); T.R. Anson, Commissioner of Public Works; and Haynes Construction Company (Haynes). The defendants assert that the court lacks subject matter jurisdiction over this matter (1) since the State is immune from suit due to sovereign immunity; (2) since the plaintiff, Worth Construction Company, Inc. (Worth or plaintiff) lacks standing; and (3) since the plaintiff has failed to exhaust an available administrative remedy. The court held hearings in connection with the motions, including, on May 23, 2003, an evidentiary hearing. In addition, the parties submitted briefs and the court heard oral argument. For the reasons stated below, the court grants the motions.
I BACKGROUND
Worth filed a complaint, dated April 18, 2003, seeking temporary and permanent injunctive relief. According to the complaint, Worth is a general contractor. On January 15, 2003, bids for a construction project known as the new student center at Southern Connecticut State University, in New Haven, Connecticut (the "project"), were submitted and opened. Worth claims that Haynes was the apparent low bidder, with a bid of $21,900,000.00, while Worth was the second lowest bidder, with a bid of $22,439,000.00, a difference of $539,000.00. See complaint, ¶ 6.
The plaintiff asserts, in paragraph 7, that Haynes' bid was non-responsive, because Haynes' masonry subcontractor, Monarca, as a major subcontractor, did not have a license or certificate of registration, as required by General Statutes § 20-341gg and Amendment No. 2 of the bid package (hereafter "Amendment 2"). Worth further alleges that the masonry subcontractor "will be performing work CT Page 7547-fd that impacts upon the structural integrity of the structure, and is therefore required to hold a license as a `major contractor' . . ." Complaint, ¶ 11. In this mater it is not disputed that the masonry subcontractor for the project will be performing such work.
Section 20-341gg (b) provides, in pertinent part, "No person shall engage in or offer to perform the work of any major contractor in this state on any proposed structure or existing structure or addition that exceeds the threshold limits contained in section 29-276b unless such person has first obtained a license or certificate of registration as required under the provisions of chapter 539 or a registration from the Department of Consumer Protection in accordance with the provisions of this section."
Amendment 2 was a part of the bidding documents. In pertinent part, it provided, "THE PRIME CONTRACTOR AND ALL MAJOR SUBCONTRACTORS MUST POSSESS A VALID REGISTRATION OR LICENSE ISSUED BY THE DEPARTMENT OF CONSUMER PROTECTION AT THE TIME THAT BIDS ARE RECEIVED FOR THIS PROJECT." See Defendant's Exhibit A, Section 00900, Amendments, page 1 of 2. References herein to exhibits are to those presented at the evidentiary hearing.
In paragraph 13 of the complaint, Worth claims that the "DPW and Commissioner arbitrarily and capriciously approved Haynes's non-conforming submission of an unlicensed masonry subcontractor in its bid form, and in doing so precluded other bidders from competing on equal terms, thereby exhibiting favoritism toward Haynes and defeating the object and integrity of the competitive bidding laws." In its prayer for relief, Worth seeks an order: (1) compelling the DPW to disqualify Haynes' bid; (2) enjoining the DPW from awarding the contract to Haynes; (3) compelling the DPW to award the contract to Worth, as the second lowest bidder; and (4) if a contract has been awarded to or executed by Haynes, enjoining the project from going forward. In addition, the plaintiff requests any other equitable relief which the court deems appropriate.
At the evidentiary hearing, the parties were afforded the opportunity to present evidence. Worth presented one witness, and exhibits. The defendants called no witnesses, and also presented evidence in document form.
Worth contends that, if it had known that the DPW would permit the submission of bids which included the proposals of unlicensed major subcontractors, it would have been the lowest bidder. Worth asserts that it would have utilized proposals it received from two unlicensed contractors in order to formulate its bid on the steel work required on the project, instead of the higher number it assigned to this portion of the work, based on a proposal from a licensed steel subcontractor.
II STANDARD OF REVIEW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." (Internal quotation marks omitted.) Practice Book § 10-31(a) (1). CT Page 7547-fe
"[A] claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnick, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).
"A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits." Russell v. Yale University, 54 Conn. App. 573, 577, 737 A.2d 941 (1999). "[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31(a). "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Weidenbacher v. Duclos, 234 Conn. 51, 54 n. 5, 661 A.2d 988 (1995) "A motion to dismiss may . . . raise issues of fact and would, therefore, require a hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
In this context, the trial court is not required to assume the truth of the allegations in the complaint. See Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Bradley's Appeal From Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989). Rather, the purpose of the evidentiary hearing is to permit the court to "determine the disputed facts necessary to decide the jurisdictional issue." Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996).
In this memorandum of decision, the court has not relied on the affidavit of Richard F. Piotrowski, which was submitted in support of DPW's motion to dismiss. Certain of the exhibits presented with it became full exhibits, without objection, at the evidentiary hearing. See Defendant's Exhibits B, D, E, and G. The court has considered those exhibits. By accompanying order, the court has denied, as moot, Worth's motion to strike the affidavit.
III DISCUSSION
As noted, the defendants contend that the court lacks subject matter jurisdiction over this matter since the plaintiff lacks standing. See DPW's memorandum of law, dated May 15, 2003, pp. 15-16. The court agrees. CT Page 7547-ff
"[I]t is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552-53, 698 A.2d 245 (1997).
Standing may be challenged through a motion to dismiss. See Connecticut Associated Builders and Contractors v. Anson, 251 Conn. 202, 213, 740 A.2d 804 (1999). Where standing is at issue, the party asserting the claim has the burden of proof. See id.
"As a matter of common law, an unsuccessful bidder on a state or municipal contract has no contractual right that would afford standing to challenge the award of a contract. [A] bid, even the lowest responsible one, submitted in response to an invitation for bids is only an offer which, until accepted by the municipality, does not give rise to a contract between the parties. . . An unsuccessful bidder, therefore, has no legal or equitable right in the contract. Not unlike any other person whose offer has been rejected, the disappointed bidder has no right to judicial intervention." (Internal quotation marks omitted and citations omitted.) Connecticut Associated Builders and Contractors v. Hartford, 251 Conn. 169, 178-79, 740 A.2d 813 (1999).
"[S]tate and local competitive bidding laws have not been enacted in order to protect bidders. These laws serve to guard against abuses in the award of contracts such as favoritism, fraud or corruption and are enacted solely for the benefit of the public and in no sense create any rights in those who submit bids." (Internal quotation marks omitted.) Id., 179. "Despite these substantial constraints, we have recognized a limited exception to the rules of standing in order to provide a means of protecting the public's interest in properly implemented competitive bidding processes . . . Under this exception, unsuccessful bidders have standing to challenge the award of a public contract where fraud, corruption or acts undermining the objective and integrity of the bidding process existed." (Internal quotation marks omitted and citations omitted.) Id.
In Connecticut Associated Builders and Contractors v. Hartford, supra, the Supreme Court expressed the burden to demonstrate standing: "[b]y requiring [the plaintiff] to produce evidence that the bidding process was undermined by fraud, corruption or favoritism, the court is simply forcing the party challenging the competitive bidding process to make a CT Page 7547-fg colorable claim of injury that it is within the zone of interests protected by the competitive bidding laws . . . Although the plaintiffs were not required to prove the merits of their claim, they did have the lesser burden of establishing a colorable claim." (Emphasis in original; internal quotation marks omitted.) Id., 182.
As the trial court in Connecticut Associated Builders and Contractors v. Hartford, supra, observed, "[t]he zone of interests protected by the competitive bidding [laws] . . . is the right of the public to the lowest responsible bidder, absent fraud, corruption, or favoritism or acts undermining the objectivity and integrity of the bidding process." Connecticut Associated Builders and Contractors v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV-98-0584037 (Dec. 17, 1998, Langenbach, J.) ( 23 CLR 584), affirmed, 251 Conn. 169, 740 A.2d 813 (1999).
The court concludes that Worth has not met its burden to show that it has standing. Here, the evidence has not shown that Worth has a colorable claim that the right of the public to a contract award to the lowest responsible bidder has been impaired by the bidding process which occurred.
The focus of Worth's argument is the contention that DPW improperly accepted Haynes' bid although its masonry subcontractor, Monarca, was not licensed at the time the bids were submitted and opened. See plaintiff's memorandum of law, pp. 2-3 ("Plff. Memo."). Worth notes that Monarca received the required license two days after the bids were opened. See Defendant's Exhibit E, Worth's appeal, p. 4; see also Plff. Memo., p. 28. Worth contends that the DPW was not permitted to "waive" this requirement as a minor irregularity, pursuant to General Statute § 4b-95 (c), which states, "[t]he awarding authority shall be authorized to waive minor irregularities which he considers in the best interest of the state, provided the reasons for any such waiver are stated in writing by the awarding authority and made a part of the contract file." Worth contends that "[g]iven the clear requirement of Section 20-341gg that any major subcontractor must first be licensed by the [Department of Consumer Protection] before offering to perform work on a threshold project, and that the definition of `major contractors' includes subcontractors, it is improper for the DPW to waive that requirement as a minor irregularity." (Emphasis in original.) Plff. Memo., p. 13. Worth adds that if the DPW were permitted to utilize Section 4b-95 (c) (5)'s exception for unlicensed contractors, the requirements of Amendment 2 would be rendered meaningless. See Plff. Memo., p. 22.
Section 4b-95 (c), formerly Section 4-137e, in its entirety, provides, "General bids shall be for the complete work as specified and shall include the names of any subcontractors for the four classes of work specified in subsection (a) of section 4b-93, and for each other class of work for which the awarding authority has required a separate section pursuant to said subsection and the dollar amounts of their subcontracts, and the general contractor shall be selected on the basis of such general bids. It shall be presumed that the general bidder intends to perform with its own employees all work in such four classes and such other classes, for which no subcontractor is named. The general CT Page 7547-fp bidder's qualifications for performing such work shall be subject to review under Section 4b-92. Every general bid which is conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such general bid. The awarding authority shall be authorized to waive minor irregularities which he considers in the best interest of the state, provided the reasons for any such waiver are stated in writing by the awarding authority and made a part of the contract file. No such general bid shall be rejected because of the failure to submit prices for, or information relating to, any item or items for which no specific space is provided in the general bid form furnished by the awarding authority, but this sentence shall not be applicable to any failure to furnish prices or information required by this section to be furnished in the form provided by the awarding authority. General bids shall be publicly opened and read by the awarding authority forthwith. The awarding authority shall not permit substitution of a subcontractor for one named in accordance with the provisions of this section or substitution of a subcontractor for any designated subtrade work bid to be performed by the general contractor's own forces, except for good cause. The term "good cause" includes but is not limited to a subcontractor's or, where appropriate, a general contractor's: (1) Death or physical disability, if the listed subcontractor is an individual; (2) dissolution, if a corporation or partnership; (3) bankruptcy; (4) inability to furnish any performance and payment bond shown on the bid form; (5) inability to obtain, or loss of, a license necessary for the performance of the particular category of work; (6) failure or inability to comply with a requirement of law applicable to contractors, subcontractors, or construction, alteration, or repair projects; (7) failure to perform his agreement to execute a subcontract under Section 4b-96.
The court is unpersuaded by Worth's memorandum's references to out of CT Page 7547-fh state and federal law, since this matter concerns the applicability of Connecticut statutes. In addition, there is ample Connecticut decisional law in the public bidding area to provide guidance to this court.
Worth asserts that our Supreme Court's decision in Spiniello Construction Co. v. Town of Manchester, 189 Conn. 539, 456 A.2d 1199 (1989) (" Spiniello"), supports its contention here that Haynes' bid, which was based, in part, on its inclusion of Monarca as its unlicensed subcontractor, was a conditional, non-responsive bid, which should have been rejected, pursuant to Section 4b-95 (c). ("Every general bid which is conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such general bid."). See Plff. Memo., pp. 28-29.
Spiniello did not involve a bid on a state project; accordingly neither Section 4b-95 nor its predecessor statute applied. Also, Worth acknowledges there is no evidence here of pre-bid favoritism towards Haynes. See Plff. Memo., p. 31. In his testimony at the evidentiary hearing, Mr. William S. Dizenzo, Worth's senior vice president, stated that there was no pre-bid discrimination against his company. See transcript of hearing, May 23, 2003, p. 103. He stated also that he did not know of any information which Haynes had that other bidders did not have. See transcript of hearing, May 23, 2003, p. 111.
In contrast, in Spiniello, which involved bids on two separate contracts, the awarding authority had a secret conversation with a bidder before the bids were submitted. The bidder, Raymond, asked whether the Town would accept a "combined bid conditioned on both contracts . . .;" the Town assented. Id., 189 Conn. 542. "Despite the bid instructions which required written notice to all prospective bidders of interpretations of the bidding documents, no such notice was mailed to the plaintiff or to others." Id. "Since the plaintiff was not aware of this change in the bidding process, it had not submitted a discount proposal conditioned on the award of both contracts." id., 543. The court concluded, "Although Manchester reserved the right to reject any or all bids, it violated its bidding instructions by accepting a conditional combined discount bid based on an oral addendum known only to Manchester and Raymond. No written notice of the interpretation of a bidding instruction was mailed to prospective bidders, including the plaintiff. By permitting Raymond to submit a conditional bid when other bidders were not afforded the same opportunity, Manchester precluded the other bidders from competing on equal terms. It defeated the object and integrity of the competitive bidding by unintentionally exhibiting favoritism to Raymond." Id., 544-45. CT Page 7547-fi
Spiniello also explains the meaning of a "conditional" bid. There, the bidder submitted "an additional provision that it would deduct the sum of $35,000 if both contracts were awarded to it. Since the plaintiff was not aware of this change in the bidding process, it had not submitted a discount proposal conditioned on the award of both contracts." Spiniello, 189 Conn. 542-43.
The court is also unpersuaded by Worth's speculation as to how the Supreme Court in Spiniello would have treated a different set of facts. See Plff. Memo., p. 31 (contending that the court would have found the bidding procedure fatally flawed even if Raymond had not contacted Town officials and received information to which the other bidders were not privy). Soon after deciding Spiniello, our Supreme Court contrasted Spiniello's facts with those at issue in Ardmare Construction Co. v. Freedman, 191 Conn. 497, 467 A.2d 674 (1983), which involved the predecessor to Section 4b-95, Section 4-137e. See id., 500. There, the department of administrative services rejected a bid, since it did not contain an original signature, based on the fact that it "had in the past maintained the practice of rejecting all bids that did not have an original handwritten signature. According to the chief bidding officer, the department interpreted General Statutes 4-137e (b) to require handwritten signatures. He conceded, however, that the department had not promulgated any regulation concerning its interpretation of the statute, and that no bidders had been notified of the requirement that bids be signed by hand." (Footnotes omitted.) Id., 499-500.
In finding that there was no favoritism and no conduct which undermined the bidding statute, the court in Ardmare compared Ardmare's facts to those in Spiniello. "This case, however, involves none of the factors we considered significant in Spiniello. There, the municipality had imparted information to one bidder that it had not provided other bidders . . . Thus, parity of information no longer existed among the bidders as envisioned by the statute. In this case, however, the commissioner had not informed any bidder of its requirement. The construction company which received the contract award was not given any special advantage over the plaintiff in submitting its bid, nor was it privy to any secret information." (Citation omitted.) Id., 505-06. See also Unisys Corp. v. Department of Labor, 220 Conn. 689, 691, 600 A.2d 1019 (1991) (state drafted requests for proposals based on one vendor's input so it would favor that vendor; also, relevant information was provided to that vendor, but not to other vendors).
The evidence here is similar to that in Ardmare. As noted, Worth concedes that there is no evidence that the DPW provided information to Haynes that it had not provided other bidders. Parity of information existed, as envisioned by Section 4b-95. At the same time, the DPW, for many years, has had a practice of accepting bids which included subcontractors who were not registered or licensed at the time of bid submission. "In the past, DPW has concluded that failure of a listed subcontractor to be registered at the time of bid submission is a minor irregularity that can be cured and has permitted the subcontractor to complete the registration during the qualification review period. In no CT Page 7547-fj instance has an apparent low bid been rejected because a listed subcontractor was not registered at the time the bid was submitted to DPW." Defendant's Exhibit G, p. 2 (appeal of bid protest petition rejection, dated April 1, 2003). "Since July 1992, the DPW has not rejected any threshold project general bid for the lack of registration of a named subcontractor." Defendant's Exhibit D, ¶ 13, page 4 of 5 (ruling concerning bid protest, dated February 21, 2003). On at least one occasion, in 1997, when the DPW was notified that a named subcontractor was not so licensed, it advised the general bidder to ensure that the subcontractor had applied for the necessary license; the general's bid was not rejected. See Defendant's Exhibit D, ¶ 14, pages 4-5 of 5.
As noted, the referenced exhibits were admitted, without objection, at the evidentiary hearing. At oral argument on June 23, 2003, Worth argued that they should only be considered in connection with Worth's claim that it has exhausted its administrative remedies. Worth had a full opportunity to contest these facts at the evidentiary hearing. If it chose to challenge them, it could have called other witnesses, including state employees, to testify. See Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608 n. 10; Unisys Corp. v. Department of Labor, supra, 220 Conn. 695-96.
Worth's evidentiary presentation did not contradict the evidence of this long-standing practice. Also, there is no contention here by Worth that this practice was a secret. Thus, the facts here are markedly different from those in Spiniello where surreptitious communications with one bidder occurred. As the Supreme Court stated in Ardmare, "[n]oticeably absent in this case are elements traditionally thought to undermine the competitive bidding process. The commissioner did not apply its requirement inconsistently or in a discriminatory fashion. Nor was there any proof that the commissioner was acting in bad faith. In short, the commissioner made a good faith interpretation of the competitive bidding statute requirements, and applied it in a consistent fashion. The plaintiff was therefore without standing to challenge the award of the contract." Id., 506. As our Supreme Court also noted in Ardmare, in Spiniello it "limited the scope of our holding in order to strike the proper balance between fulfilling the purposes of the competitive bidding statutes and preventing frequent litigation that might result in extensive delay in the commencement and completion of government projects to the detriment of the public." Ardmare, 220 Conn. 505.
Worth attempts to distinguish Ardmare on the ground that "implicit in the Court's holding . . . is that the Department's interpretation [of the statute] was reasonable." (Emphasis in original.) Plff. Memo., p. 35. This court need not engage in interpolation concerning the Supreme CT Page 7547-fk Court's holding in Ardmare in order to discern whether a department's statutory interpretation must always be reasonable in order for a public bidding award to be upheld. Here, there is no evidence that DPW's actions went beyond what was deemed appropriate in Ardmare. There is no evidence that DPW's interpretation was applied inconsistently or in a discriminatory fashion or that it engaged in bad faith. It made a good faith interpretation of the competitive bidding statute requirements, which it applied consistently.
Our Supreme Court recently has provided guidance in the area of statutory interpretation. "[W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule. In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute." Internal quotation marks omitted and citation omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61-62, 818 A.2d 14 (2003).
Our Supreme Court also has cited with approval certain principles of statutory construction. A "statute's general term . . . is to be considered to embrace things of the same general kind or character as the more specific terms enumerated in the statute." Prudential Property Casualty Insurance Co. v. Bannon, 233 Conn. 243, 248, 658 A.2d 567 (1995). Also, "[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." (Internal quotation marks omitted.) Gifford v. Freedom of Information Commission, 227 Conn. 641, 652, 631 A.2d 252 (1993).
As noted, Section 4b-95 (c) provides that "[t]he awarding authority shall be authorized to waive minor irregularities which he considers in CT Page 7547-fl the best interest of the state." The statute does not define the term "minor irregularities." However, later it provides several examples of "good cause," for which a subcontractor may be substituted, including, but "not limited to" "(5) inability to obtain, or loss of, a license necessary for the performance of the particular category of work." Thus, Section 4b-95 (c)'s general provision concerning "minor irregularities" reasonably may be construed to include the specific categories later set forth therein concerning licensing. On the other hand, Section 20-341gg's specific requirement that a license must first be obtained before an offer to perform the work is made reasonably may be construed to prevail over Section 4b-95's general language about "minor irregularities." While DPW's interpretation may not have been correct, it was not unreasonable for the DPW to interpret the statute as permitting a subcontractor to become licensed during DPW's review period after the bids are opened. See General Statutes §§ 4b-91 and 4b-92.
The parties did not provide the court with references in the legislative history to the meaning of the term. The court found none in its review of the legislative history. Also, the court is unpersuaded by DPW's references, in its May 15, 2003 memorandum, pp. 21-22, to the different term "minor technicality," as provided in the Code of Federal Regulations, which has not been adopted in Connecticut.
Section 4b-91 provides that a contract "shall be awarded to the CT Page 7547-fq lowest responsible and qualified general bidder on the basis of competitive bids . . ." Section 4b-92 provides, "As used in this chapter and except as otherwise provided, the words `lowest responsible and qualified bidder' shall mean the bidder whose bid is the lowest of those bidders possessing the skill, ability and integrity necessary to faithful performance of the work based on objective criteria considering past performance and financial responsibility. Essential information in regard to such qualifications shall be submitted with the bid in such form as the awarding authority may require by specification in the bid documents and on the bid form. Every general bid shall be accompanied by a bid bond or a certified check in an amount which shall be ten per cent of the bid, provided no such bid bond or certified check shall be required in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than fifty thousand dollars. Failure to execute a contract awarded as specified and bid shall result in the forfeiture of such bid bond or certified check. In considering past performance the awarding authority shall evaluate the skill, ability and integrity of bidders in terms of the bidders' fulfillment of contract obligations and of the bidders' experience or lack of experience with projects of the size of the project for which the bids are submitted."
As stated above, Worth notes that Monarca received its license two days after bids were opened. See Defendant's Exhibit E, p. 4; Plff. Memo., p. 28. While this did not comport with Amendment 2's requirement, DPW's acceptance of Haynes' bid utilizing Monarca will not result in an unlicensed subcontractor performing work on a state project. See Plff. Memo., p. 10, n. 3. The court is therefore unpersuaded by Worth's contention that DPW's acceptance of Haynes' bid harmonizes Section 20-341gg's licensing requirement out of existence. See Plff. Memo., p. 11. DPW's exercise of its discretion here was not "unfettered." See Andrikis v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. 0100912 (June 10, 1991, McWeeny, J.), 4 Conn. L. Rptr. 187.
In addition, the court is unpersuaded that Haynes' bid was "conditional" and therefore prohibited by Section 4b-95 (c). As discussed above, our Supreme Court, in Spiniello, described a conditional bid as one which sets forth a proposal conditioning the bid on the way the award is made, there a discounted amount premised on the award of both contracts. Here, Haynes did not make its bid conditional by including Monarca. According to DPW's interpretation and past practice, a major subcontractor would be required to obtain the requisite license or certificate during the review period.
The situation here also bears similarity to that in Premier Roofing Co., Inc. v. Department of Public Works, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV91-0702631, (April 10, 1992, Aronson, J.), where the DPW awarded a contract to the lowest bidder. The second lowest bidder sought injunctive relief on the ground that the work to be done exceeded the "threshold limits" described CT Page 7547-fm in General Statutes § 20-341gg and thus required licensing. The DPW, which had a concurring opinion from the State Building Inspector, and despite a conflicting opinion from the Commissioner of the Department of Consumer Protection, interpreted the statute in a manner which did not disqualify the lowest bidder, although at the time it filed its bid it was not licensed. The court found that "[a]t most, the plaintiff has alleged that the [DPW] has misinterpreted a statute." It concluded, "[i]n the present case, like in Ardmare, `The construction company which received the contract award was not given any special advantage over the plaintiff in submitting its bid nor was it privy to any secret information.' Ardmare, supra, 506. On its face, the plaintiff's claim does not allege sufficient facts to allow it to have the limited standing that the Spiniello court has provided to disappointed bidders. The plaintiff lacks standing and therefore the court lacks subject matter jurisdiction to hear this action." Premier Roofing Co., Inc. v. Department of Public Works, supra.
This court finds Judge Aronson's analysis persuasive. Here, the most that can be claimed is that DPW has misinterpreted a statute, Section 4b-95 (c), and allowed a departure from the bid documents, by construing Section 4b-95 (c) to allow a deviation from Section 20-341gg's requirement that no offer to perform the work can be made unless a license or certificate of registration is first obtained. As our Supreme Court stated earlier, "All that is required of officials is that they observe good faith and accord all bidders just consideration, thus avoiding favoritism and corruption. An honest exercise of discretion will generally not be disturbed." (Internal quotation marks omitted.) John J. Brennan Construction Corp. v. Shelton, 187 Conn. 695, 703, 448 A.2d 180 (1982).
Worth cites other Superior Court decisions in the public bidding area which the court finds to be distinguishable. Barber-Colman Cosentino, Inc. v. Town of Manchester, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV-97-0484365 (March 26, 1998, Holzberg, J.) involved multiple allegations of favoritism, including advance meetings by one bidder with the Town; private "walk-throughs" for that bidder months ahead of the request for proposals (RFP); input of that bidder into the form and contents of the RFP; and permission to submit specifications for fifteen buildings whereas the RFP only called for fourteen. These allegations of preferential treatment are far closer to those present in Spiniello than to the facts in the case at bar. Also that case did not concern Section 4b-95, which, as discussed, authorizes the bidding authority to waive "minor irregularities."
Apcoa v. City of New Haven, Superior Court, judicial district of New CT Page 7547-fn Haven at New Haven, Docket No. CV95 0370220 (March 30, 1995, Booth, J.), also cited by Worth, dealt with New Haven's City Charter and applicable specifications, not Section 4b-95. At issue was whether a bidder had three years experience operating and managing public parking facilities of a like nature to those which were the subject of the contract to be awarded. See id. There, no reference is made to a provision similar to Section 4b-95 (c), concerning "minor irregularities," and affording such discretion to the awarding authority. In addition, apparently there was no evidence before the Apcoa court of a long-standing, consistently applied practice, such as that discussed above, of permitting a subcontractor to become licensed during the review period, after bid submission.
Worth also relies on D.P.L. Refuse Service, Inc. v. City of Ansonia, Superior Court, judicial district of New Haven at New Haven, Docket No. CV92 0340059 (June 8, 1993, Gray, J.) ( 9 Conn. L. Rptr. 219) (" D.P.L."), in which the court considered a Town bid invitation which authorized the City to "waive any minor irregularities." There, the issues involved multiple claims of error by the awarding authority, including as to a licensing issue. "The complaint allege[d] that the BFI recyclable bid proposal was not accompanied by a certified check in the amount of at least five percent of the total sum price of the bid, nor was the garbage bid proposal accompanied by the requisite check. Furthermore, it is alleged that the BFI garbage bid proposal was defective in that the company failed to submit '(with respect to alternative disposal sites)' the required evidence of licenses and permission from the state D.E.P. `to agree in accepting waste materials from the city of Ansonia . . .' nor did BFI submit evidence of consent of the D.E.P." As noted above, Section 4b-95 (c) (5) authorizes the DPW to approve the substitution of a subcontractor due to "inability to obtain, or loss of, a license necessary for the performance of the particular category of work." There is no reference in D.P.L. to the City having such authority. The court also finds D.P.L.'s analysis unpersuasive since it does not mention our Supreme Court's decision in Ardmare, which had been decided several years before D.P.L., and which remains controlling authority.
This court concludes that under these circumstances, the DPW's honest exercise of its discretion should not be disturbed. Worth has not shown a colorable claim of fraud, corruption, or favoritism or acts undermining the objectivity and integrity of the bidding process. Worth has not met its burden to demonstrate that it has standing. Accordingly, this court lacks subject matter jurisdiction. In view of this determination, the court need not address the defendants' other contentions, concerning sovereign immunity and exhaustion of administrative remedies. CT Page 7547-fo
CONCLUSION
For the foregoing reasons, the defendants' motions to dismiss are granted. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT