Opinion
CV186046499
09-10-2018
SILKTOWN ROOFING, INC. v. CITY OF NEW BRITAIN et al.
UNPUBLISHED OPINION
OPINION
Joseph M. Shortall, Judge Trial Referee
This case was tried to the court on September 6 and 7, 2018. The plaintiff Silktown Roofing, Inc. (Silktown), an unsuccessful bidder for a municipal contract, challenges the award to the successful bidder on the ground of favoritism. "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).
The defendants are the city of New Britain, the Consolidated School District of New Britain and Elite Roofing & Restoration, LLC (Elite), the successful bidder. The court will refer to the first two named defendants collectively as "the city."
As summarized in this court’s decision denying the defendants’ motion to dismiss; Docket entry # 114; the complaint alleged that "(t)he 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." Docket entry # 114, 3-4.
Based on these facts, plaintiff alleged in its complaint that the city engaged in favoritism by requiring plaintiff, by way of the project specifications and directions given by the city’s project architect and project manager, to submit a bid that included the more expensive custom color while permitting Elite to submit a bid that included the less expensive standard color and awarding the project contract to Elite, a non-conforming bidder. Complaint, ¶ 20. Besides alleging the irreparable harm to it caused by the city’s action, plaintiff alleged that the public’s interest in getting "the best product at the lowest price" would be vindicated by the court’s either awarding the contract to plaintiff or opening it to re-bidding. Id., ¶ 23.
Based on its assessment of the credibility of the witnesses and the weight to be accorded their testimony and the exhibits introduced at trial, the court concludes that the plaintiff has failed to prove by a preponderance of the evidence the critical allegation of its complaint; namely, that the city permitted the successful bidder to submit a bid "for the less expensive, standard color membrane that did not conform to the Specifications; and then ... awarded the Project" to that bidder. Complaint, ¶ 20. There was no evidence that Elite’s bid included pricing for the less expensive standard color rather than custom color and that was the reason why it was $30,000.00 less than Silktown’s. The bids submitted to the city, which were introduced at trial, were "lump sum" bids, i.e., they showed only the total price for which the bidder would "furnish all labor, materials, equipment and services necessary to perform the work required by the bid documents." See exhibits C (Elite’s bid) and D (Silktown’s bid). Thus, there was no way for the city to know when awarding the contract whether the bids included pricing for standard or custom colors. At the post-bid scope review the project manager, project architect and the city’s representatives assured themselves that Elite would be able to provide custom colors as called for in the specifications. See exhibit F (scope review checklist) and the testimony of Brian Grant, project manager for Newfield Construction, Inc.
Much of the evidence offered by the plaintiff pertained to conduct of the city and its architect and project manager that occurred after the bids had been opened and the contract awarded. This evidence was irrelevant to the allegations of the complaint, which dwelt on the alleged conduct of the city during the bidding process and on the award of the contract. On the second day of trial plaintiff’s counsel moved orally to amend the complaint to conform to this evidence of post-bid conduct, i.e., to allow an amendment that the city’s activities after the award of the bid up to and including the selection of the color of the exposed portion of the roof membrane amounted to favoritism toward the successful bidder.
"A trial court may allow, in its discretion, an amendment to the pleadings before, during or after trial to conform to the proof ... Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ... The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Citations and internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 640 (2013).
The court reserved decision on the motion to amend. Applying the tests articulated in Fountain Pointe, the motion to amend the complaint to conform to the evidence is now DENIED. The court finds that allowing an amendment during trial that could have been offered prior to trial would unduly prejudice the defendants.
Plaintiff’s counsel argued that he had first become aware of the post-bid conduct that allegedly amounted to favoritism toward Elite at the deposition of the project manager on Monday, August 20; this was more than two weeks before trial began, on Thursday, September 6. While the court understands that plaintiff’s counsel was on trial on another matter during much of the intervening period, it cannot conclude that there was no opportunity during that time to draft and file an amended complaint that would alert the defendants to the change in plaintiff’s claim of favoritism. This was not an insubstantial change such as was present in Fountain Pointe, where an amendment during trial was upheld. Fountain Pointe, LLC v. Calpitano, supra, 144 Conn.App. 638-39. Rather, it called into question the activities of the city’s representatives, the project architect and the project manager during a period of time not even alluded to in the complaint and of a completely different nature than the pre-bid conduct that formed the basis of the complaint. Nor was any claim made that defense counsel somehow knew of plaintiff’s intended amendment, a factor that was also present in Fountain Pointe. Id., 641.
Even were the court to allow the proposed amendment, the evidence of post-bid conduct on the part of the city’s representatives did not show favoritism toward the successful bidder. The evidence was that, although the range of colors available through the roof membrane manufacturer selected by the successful bidder was limited, three custom or "non-standard" colors were available. One of those non-standard colors has been found acceptable by the person who testified at trial that he is responsible for recommending a color choice to the defendant school district. Therefore, the successful bidder will be providing a custom color for the exposed surface of the roof membrane, as called for in the project specifications.
The undisputed evidence at trial was that "custom" and "nonstandard" are synonymous terms for labeling colors that fall outside the standard colors offered by a roofing manufacturer, i.e., those that are available "off the shelf."
The plaintiff failed to prove its allegations of favoritism in the award of this municipal contract. Therefore, it failed to prove that it has standing to bring this lawsuit; Capasso Restoration, Inc. v. City of New Haven et al., supra ; and the court lacks subject matter jurisdiction. Accordingly, the action is DISMISSED.
The temporary restraining order entered by the court in its decision denying the motion to dismiss; Docket entry # 114, 9; will remain in effect until Monday, October 1, 2018, the date by which an appeal from this decision must be filed.