Opinion
HHDCV186086341S
07-12-2018
MOHAWK NORTHEAST, INC. v. STATE of Connecticut, DEPARTMENT OF TRANSPORTATION et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT
This matter is before the court concerning the defendant State of Connecticut, Department of Transportation (hereinafter DOT or defendant)’s motion to dismiss, based on lack of standing and sovereign immunity. The court heard oral argument on April 30, 2018.
After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
The plaintiff, Mohawk Northeast, Inc., (Mohawk) brings this claim against the defendants, the DOT and Manafort Brothers, Inc. (MBI). The plaintiff is seeking a temporary and/or permanent injunction against the DOT.
The plaintiff alleges the following. The plaintiff is a Connecticut corporation engaged in the trade or business of civil and heavy construction. On September 13, 2017, the DOT issued a request for proposal (RFP) for the rehabilitation of certain bridges. These bridges include bridge numbers 01686A and 06048, I-84 WB/EB over Market Street, and WB off-ramp to Market Street in Hartford, project number 063-0707 (project). The project is being funded by the state and the Federal Highway Administration.
In response to the RFP, the plaintiff submitted its bid on October 11, 2017. Of nine bidders, the plaintiff was the lowest bidder with a proposal price of $6,098,631.76. The second lowest bidder’s proposal price was $6,856,894.95. On November 9, 2017, the DOT issued a notice of project withdrawal "due to the discovery of a large quantity change in item 0601073-class s concrete." Relying on calculations from the engineer of record, the DOT increased the estimated bid quantity for the concrete. After the DOT issued its notice of project withdrawal, the plaintiff filed a freedom of information request for the DOT documents concerning the concrete quantity calculations, in addition to the DOT’s decision not to award the project.
In response to this request, the plaintiff received documents from the DOT regarding the withdrawal of the project. The DOT’s response referenced a quantity error discovered for concrete. The plaintiff alleges that the DOT did not discover a quantity error; it instead made a subjective judgment that there might be additional quantity of class s concrete work. The document also stated that the DOT cannot come up with a mathematically firm number and that the DOT’s personnel believed that the total quantity "will be greater than the bid estimate." Despite the error, the plaintiff alleges that it would still remain the lowest bidder with the quantity increase.
On November 21, 2017, the plaintiff submitted a complaint pursuant to Section XIV of the DOT’s Construction Contract Bidding and Award Manual (Manual). The plaintiff also advised the DOT that even if the additional quantity was included as part of the original bid quantity, the plaintiff would still be the low bidder. Additionally, the plaintiff requested that the DOT accept the bids received and, award the contract to the plaintiff. In response, the DOT cited section XIII of the Manual, which grants the DOT authority to withdraw contracts or projects if good cause exists. Additionally, the DOT represented that the analysis of Mohawk’s bid price for the concrete caused the DOT to investigate the quantity estimated for the item. The DOT then decided that it was in the best interest of the state to reject all the bids and to solicit new bids. On December 13, 2017, the project was re-let and MBI was the lowest bidder. The defendant subsequently awarded the project to MBI. MBI’s re-bid was $6,763,633.96.
On December 19, 2017, the plaintiff filed a motion for an injunction. The defendant, the DOT, filed its motion to dismiss on January 5, 2018. On January 10, 2018, the plaintiff filed its objection to the defendant’s motion to dismiss. The defendant filed a reply brief on January 12, 2018. Limited discovery was conducted. After a status conference with the court (Epstein, J.T.R.) on February 1, 2018, both the defendant and the plaintiff filed their supplemental briefs on March 28, 2018.
II
Standard Of Review
"The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ..." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).
"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 ...; other types of undisputed evidence; ... and/or public records of which judicial notice may be taken; ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ...; the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... 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 ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
"[A] challenge to the jurisdiction of the court presents a question of law ..." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).
"A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..." Practice Book § 10-30. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
"The proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n.6, 872 A.2d 408 (2005). "If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Corm. 542, 550, 23 A.3d 1176 (2011). Moreover, "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).
"Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court’s subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Regarding the common-law exceptions to sovereign immunity, "[i]n the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, 301 Conn. 56, 66, 23 A.3d 668 (2011). Similarly, "[l]ack of a statutory waiver of [sovereign] immunity is a jurisdictional defect properly raised by a motion to dismiss." Conboy v. State, supra, 292 Conn. 650.
III
Discussion
A
Standing
General Statutes § 13a-95 provides, in relevant part, that "The commissioner may reject any and all bids if, in the commissioner’s opinion, cause exists therefor; but otherwise the commissioner shall award the contract to the lowest bidder deemed to be responsible." "In the context of competitive bidding, it is well established that an unsuccessful bidder on a state or municipal contract has no contractual right under the common law that would afford standing to challenge the award of a contract." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 412, 35 A.3d 188 (2012). "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." Ardmore Construction Co. v. Freedman, 191 Conn. 497, 501-02, 467 A.2d 674 (1983).
"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." Id., 502. "Moreover, no statute grants unsuccessful bidders standing to challenge the award of a state contract ... In particular, state 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." Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 412.
"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 ... [S]uch a suit is brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a private attorney general." Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 412-13. "Our policy to limit standing so as to deny some claims brought by unsuccessful and precluded bidders is designed to protect twin goals that serve the public interest in various, sometimes conflicting, ways. The standing rules aim 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." Id.
As the Supreme Court explained in Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 422 n.17, an evidentiary hearing "is not typically required or held when the court is considering a motion to dismiss." (Citing Conboy v. State, supra, 292 Conn. 642). "[I]n most cases involving competitive bidding on public contracts, the allegations alone should provide a sufficient factual basis for deciding the jurisdictional issue of whether the plaintiff made a colorable claim of injury." Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 422 n.17.
"Courts will intervene to prevent the exercise of that discretion to deny a bid, therefore, 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." Spiniello Construction Co. v. Manchester, 189 Conn. 539, 544, 456 A.2d 1199 (1983).
The defendant argues that the court lacks subject matter jurisdiction for two reasons. First, the defendant contends that the plaintiff fails to allege a colorable claim of favoritism against the defendant; therefore, the plaintiff lacks standing. The defendant argues that it is not enough that the plaintiff used conclusory words or phrases to satisfy the heightened pleading requirement of bringing suit against the state; rather, the plaintiff’s complaint must contain factual allegations. Second, the defendant contends that even if standing exists, the plaintiff fails to allege any waiver or exception to the state’s sovereign immunity.
In response, the plaintiff argues that a public bidder may bring a cause of action in the interest of the public "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 the ... official." Mohawk contends that it has established a colorable claim against the defendant because the defendant’s actions "were arbitrary, capricious and done with a lack of good faith."
In Spiniello Construction Co. v. Manchester, supra, 189 Conn. 542, construction firms submitted individual bids on a project. On the third contract, the plaintiff placed the lowest bid and, Raymond International Builders, Inc. (Raymond) submitted the next lowest bid. On the second contract, Raymond placed the lowest bid and the plaintiff placed the next lowest bid. Without the other bidders’ knowledge, a Raymond representative "inquired whether, in addition to the separate bids, it could file a reduced combined bid conditioned on both contracts being awarded to Raymond. The Manchester officials advised Raymond that it could submit such a proposal in addition to the separate bids." Id. Manchester did not send written notice of the interpretations of the bidding documents to the other prospective bidders. See id. Consequently, Raymond’s bid included an additional provision deducting $35,000 if both contracts were awarded to it. See id., 542-43. Because the plaintiff was unaware of this provision, it did not provide an additional deduction. See id., 543. The plaintiff filed a written protest; however, its request was denied by Manchester. "[B]oth contracts were awarded to Raymond." Id.
On appeal, the court noted that "[a]lthough 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." Spiniello Construction Co. v. Manchester, supra, 189 Conn. 544. The court further noted that "[u]nder the circumstances of this case the plaintiff had standing ..." Id., 545.
In Capasso Restoration, Inc. v. New Haven, 88 Conn.App. 754, 756, 870 A.2d 1184 (2005), the plaintiff was a bidder on a subcontract that was awarded to a company for a restoration project. The issue in Capasso involved "the solicitation in the invitation to bid on a price for deep repairs of 5 [percent] of existing cast stone surface with new cast in place repairs to match existing." Id. The plaintiff’s quoted bid price was $300 per cubic foot, while the other bidder’s quoted bid price was $275 per square foot up to five inches. Id. The plaintiff’s complaint submitted to the trial court alleged that the other bidder’s "use of square feet instead of cubic feet resulted in an altered, qualified bid ... and that if the plaintiff had expressed its bid in the same measurements used by [the other bidder], it would have been the lowest responsible bidder." Id. Therefore, the plaintiff claimed that the city improperly favored that bidder. Id. Comparing Capasso to Spiniello, the Appellate Court held that "[u]nlike in Spiniello Construction Co., in this case no special information was provided to one bidder by the bidding officials during the bidding process. Rather, this case concerns the acceptance of a bid that included an allowance submitted in measurements different from those requested, which the bidding officials reasonably interpreted as meeting their requirements." Id., 760.
This case is also unlike Spiniello because the plaintiff did not allege facts indicating that the defendant provided any information to the other bidders that rise to the level of favoritism or fraud. Here, when the defendant re-advertised the bid, it was released to everyone, and there are no facts provided that show that the defendant released any of the bidding information to MBI that was never released to the plaintiff. As discussed above, the plaintiff acknowledges that the defendant determined that a large quantity change in item 0601073-class s concrete should be specified. Thus, based on the evidence provided, the DOT did not treat one bidder in a more favorable way than the plaintiff.
The plaintiff’s evidence of and arguments concerning bias against Mohawk do not reach the required showing. For example, the plaintiff argues that DOT’s prior history in renegotiating quantity increases with Mohawk and its personnel’s comments about Mohawk are examples of bias.
As the court explained in an analogous context, when discussing disparaging comments claimed to be evidence of bias, in Metropolitan Dist. v. Connecticut Res. Recovery Auth., Superior Court, judicial district of Hartford, Docket No. CV 10 6016708, (August 18, 2011, Aurigemma, J.), the plaintiff there did not prove that the evaluation of the bid and alternative proposals "was based on bias or that it rises anywhere near the required standard of fraud, favoritism or corruption, or damage to the object and integrity of the procurement process. The word ‘bias’ connotes a negative impression that is unfounded. The CRRA’s evaluation of MDC was based on its experience with MDC. The fact that CRRA’s evaluation of the MDC contract, the MDC’s performance under that contract, and the content of its submission was sometimes unflattering to the MDC is not evidence of bias."
Likewise, here, DOT employees’ comments about their prior experience with Mohawk are not evidence of bias. The plaintiff also contends that the defendant engaged in conversations relating to Mohawk not disclosing its priority bidding strategies and to confirm that its pricing covered all the work required for each item. These aspects of the plaintiff’s arguments also fails to rise to the level of fraud or favoritism.
The plaintiff also contends that the defendant acted arbitrarily, by concocting a quantity increase for concrete, which was not objectively substantiated, and amounted to a "guess," in order to seemingly justify re-bidding the project. The plaintiff asserts, for example, that there was no engineering survey or analysis performed to substantiate the quantity increase used to justify the decision. The plaintiff argues that, in so doing, the DOT’s actions compromised the integrity of the public bidding process.
As set forth above, General Statutes § 13a-95 provides that the DOT "may reject any and all bids if, in the commissioner’s opinion, cause exists therefor ..." Thus, the defendant "has broad discretion in considering proposals for governmental contracts." (Footnote omitted.) AAIS Corp. v. Dep’t of Admin. Servs, 93 Conn.App. 327, 331, 888 A.2d 1127, cert. denied, 277 Conn. 927, 895 A.2d 798 (2006). As the Appellate Court explained there, while proposals or bids to an awarding authority are evaluated by objective criteria, assessment necessarily "includes some subjective analysis by the department; that subjective analysis, however, does not carry with it the imprint of favoritism, but rather is a wholly permissible exercise of the department’s discretion unless favoritism otherwise is illustrated." Id., 332.
In addition, the defendant’s Construction Contract Bidding and Award Manual (Exhibit A to defendant’s reply brief (# 106), pages 28-29, states that quantities are approximate only and that "The Department reserves the right to increase or decrease any or all of the quantities shown on the proposal form as may be necessary to properly complete the contract project." In support of its initial submission on the motion (# 103), the defendant presented evidence (Exhibits 3 and 4 to affidavit of James P. Connelly, Construction Division Chief for the DOT) concerning visual inspection, which eventually prompted the quantity revision. The defendant was not prohibited from drawing on its own experience in reaching its decision to revise the quantity estimate and that it was in the best interest of the state to reject all the bids and to solicit new bids. The exercise of discretion by the defendant has not been shown to have defeated the object and integrity of the public bidding process.
At oral argument, the plaintiff objected to the defendant’s presentation of affidavits with its supplemental brief and argued that it was unfair to present an affidavit from an individual whom it had been prevented from deposing. The plaintiff had the opportunity to and did conduct several depositions. It presented exhibits containing deposition testimony. Review of the questioned affidavits reflects that they contain averments concerning the history of how the new quantity estimate was arrived at. The defendant’s initial submission in support of the motion also provided a similar explanation, to which the plaintiff responded in opposing the motion. The court is unpersuaded that the plaintiff’s opportunity to present evidence was prejudiced.
Accordingly, the plaintiff lacks standing.
B
Sovereign Immunity
Although the court has determined that the plaintiff lacks standing, the court will also address the plaintiff’s claim in regards to the third exception to sovereign immunity. The defendant argues that Mohawk cannot bring this claim against the DOT, because it fails to allege that the state consented to this suit, or that the DOT’s conduct in any way falls within any of the exceptions to sovereign immunity. Additionally, the DOT contends that in order to file a claim against the state, the party must receive a waiver from the Claims Commissioner and Mohawk has failed to do so. In response, the plaintiff argues that the defendant’s actions fall within the third exception of sovereign immunity because the DOT acted in a manner to steer the awarding of the project away from the plaintiff.
"[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority ... In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." Morneau v. State, 150 Conn.App. 237, 247, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).
"For [the second and third] exceptions, we have imposed specific pleading requirements ... For a claim under the third exception, the plaintiffs must do more than allege that the defendants’ conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations. In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citations omitted; internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 721, 937 A.2d 675 (2007). As the court discussed above, the plaintiff has failed to establish sufficient facts to show that the state committed any wrongful conduct in order to promote an illegal purpose.
CONCLUSION
For the reasons stated above, the motion to dismiss is granted.
It is so ordered.