Opinion
AP-16-15
03-13-2017
DESIGN DWELLINGS, INC d/b/a DDI CONSTRUCTION, Plaintiff, v. TOWN OF WINDHAM, Defendant.
Plaintiff-Robert Ruesch Esq. Defendant Town of Windham-Stephen Langsdorf, Esq./Kevin Haskins, Esq.
Plaintiff-Robert Ruesch Esq. Defendant Town of Windham-Stephen Langsdorf, Esq./Kevin Haskins, Esq.
ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON TFTE PLEADINGS
LANCE E. WALKER JUSTICE.
I. Background
Plaintiff Design Dwellings, Inc. d/b/a DDI Construction ("DDI") seeks judicial review of the Town of Windham's award of a construction contract to Party-in-Interest R.J. Grondin & Sons ("R.J. Grondin") rather than to Plaintiff, which was the lowest bidder. In February 2016, Windham solicited bids from general contractors for a construction project known as "Angler's Road Realignment" ("Project"). The Project is a Maine Department of Transportation ("MDOT") Municipal Partnership Initiative ("MPI") funded by the MDOT, Windham, and the Portland Water District. Plaintiff submitted a bid for the Project on or before February 25, 2016. On March 16, 2016, after request and review of additional information from DDI and R.J. Grondin, Windham notified DDI that the Project would be awarded to R.J. Grondin.
DDI brought this action seeking review of Windham's decision to award the Project to R.J. Grondin rather than DDI, which submitted the lowest bid. DDI asserts claims for promissory estoppel and breach of contract. Windham moves the Court for judgment on the pleadings.
II. Standard of Review
A defendant's motion for judgment on the pleadings is generally treated as the equivalent of a motion to dismiss for failure to state a claim. MacKerron v. MacKerron, 571 A.2d 810, 813 (Me. 1990). "[T]he court resolves a defense motion for judgment on the pleadings by assuming that the factual allegations are true, examining the complaint in the light most favorable to plaintiff, and ascertaining 'whether the complaint alleges the elements of a cause of action or facts entitling the plaintiff to relief on some legal theory.''" Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988) (quoting Robinson v. Washington Cnty., 529 A.2d 1357, 1359 (Me. 1987)).
III. Discussion
Plaintiff DDI has asserted claims of promissory estoppel and breach of contract. Windham moves the Court for judgment on the pleadings arguing that DDI has not alleged facts sufficient to meet the elements of either claim. Windham contends that it did not make any promise or agreement with DDI and therefore could not have broken a promise or breached an agreement.
Plaintiff asserts a claim of breach of contract. "The establishment of a contract requires that the parties mutually assent to be bound by all its material terms; the assent must be manifested in the contract, either expressly or impliedly; and the contract must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liabilities of the parties." Forrest Assocs, v. Passamaquoddy Tribe, 2000 ME 195, ¶ 9, 760 A-2d 1041.
DDI has also brought a claim for promissory estoppel Maine has adopted the definition of promissory estoppel found in the Restatement:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.See Panasonic Communications & Sys. Co. v. State of Maine, 1997 ME 43, ¶ 17, 691 A.2d 190; RESTATEMENT (SECOND) OF CONTRACTS § 90(1). DDI alleges that Maine Law, the Charter of the Town of Windham, the Notice to Bidders, and special bid documents required that Windham award the Project to the lowest bidder. Defendant argues that none of the cited documents binds Windham in contract or constitute a promise on Windham's behalf.
DDI cites to 23 M.R.S. § 4243, which governs the award of contracts by the MDOT, for support. "The department has the right to reject any bids and to advertise for new bids if, in the department's opinion, doing so is in the best interest of the department; otherwise, the department shall award the contract to the responsible bidder submitting the lowest bid." 23 M.R.S. § 4243. Section 4243 does not set out contractual terms binding a municipality and a bidder. Rather, section 4243 sets out the process by which the MDOT will award contracts, granting MDOT considerable discretion to "reject any bids ... if, in the department's opinion, doing so is in the best interest of the department." The Court does not find that section 4243 create an enforceable promise or agreement.
DDI alleges that the terms of the Charter of the Town of Windham creates an agreement or promise obligating Windham to bidders on contracts. According to the section of the Charter of the Town of Windham cited by DDI: "The Town Manager shall act as purchasing agent for all departments of the Town and provide for cooperative purchasing arrangements where feasible, and shall submit to competitive bids any transaction in excess of the amount set by order of the Council." Charter of the Town of Windham, Art. Ill. § 2(A)(9). Similarly to 23 M.R.S. § 4243, the language found in the Charter of the Town of Windham does not amount to an agreement or promise. The language of the Charter merely holds that the Town Manager will seek competitive bids for certain transactions. The language does not require the acceptance of the lowest bid, nor does it create contractual or equitable rights for those who seek to offer "competitive bids".
Finally, DDI points to the Notice to Bidders and the special bid documents as the basis of the alleged contract and promise. The Notice to Bidders states that the "basis of the award will be low bid, " Notice to Bidders, ¶ 3. The special bid documents note that the "award of the contract, if it be awarded, shall be made ... to the lowest responsible and qualified bidder whose proposal complies with these bid documents." Special Provisions § 103.02. The special provisions also state that "[t]he Town reserves the right to reject any bid if the evidence submitted by, or the investigation of such bidder fails to satisfy the town that such bidder is properly qualified to carry put the obligations of the Contract and to complete the work contemplated therein." Special Provisions § 102, 01.
It is settled law in Maine that a solicitation for bids is neither a contract nor a promise, but merely a request for offers. "[A]n advertisement soliciting bids is not an offer but only a request for offers that may be accepted or rejected." Carroll F. Look Constr, Co. v. Town of Beds, 2002 ME 128, ¶ 9, 802 A.2d 994. Plaintiff distinguishes the facts of this case from the facts presented to the court in Carroll, noting that in the current matter, "the Town's procurement process failed to follow the Town's bid documents". Plaintiff argues that the bid documents state that Windham would award the Project to the lowest qualified bidder, that DDI was the lowest bidder, and that DDI is qualified. Therefore, Plaintiff argues that Windham has breached its agreement to the published terms and/or broken the promise to rely upon the published terms upon which DDI reasonably relied.
The Court finds that even if this case is distinguishable from Carroll on those bases, the holding in Carroll remains applicable. A request for bids does not demonstrate mutually assented to terms, nor does it constitute a "promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee". The Court finds that Plaintiff has not pled facts sufficient to make out a claim for either promissory estoppel or breach of contract.
IV. Conclusion
The Court grants Defendant's Motion for Judgment on the Pleadings.