No. 95-5188Commonwealth of Massachusetts Superior Court CIVIL ACTION SUFFOLK, ss.
October, 1995
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
GARSH, JUSTICE.
At the eleventh hour, on September 21, 1995, almost 11 weeks after the Massachusetts Turnpike Authority (“MassPike”) issued a Request for Proposals (“RFP”) for bids on an electronic toll collection and management system (“ETTM”), the plaintiff, AT/COMM, Inc. (“AT/COMM”) filed a complaint seeking a declaration that the RFP is invalid as it impermissibly narrows certain inter-agency common technical specifications in violation of Chapter 273, Section 87 of the Acts and Resolves of 1994 (“Section 87”). The Complaint also seeks a preliminary injunction enjoining MassPike from awarding a contract under the RFP until this controversy is resolved. MassPike hopes to select a successful respondent on October 10. A hearing was held on the afternoon of October 5, 1995. No emergency request for an earlier hearing was made.[1]
After hearing, and upon consideration of all of the submissions, for the reasons set forth below, the plaintiff’s Motion for Preliminary Injunction is denied.
BACKGROUND
MassPike anticipated the procurement of a toll collection system upgrade, including the installment of an electronic toll collection system, for several years. In 1994, the General Court promulgated Section 87, which mandates that certain state agencies, “study and develop specifications and standards for a comprehensive, inter-agency compatible electronic toll collection and traffic management system that shall encourage multiple bidders.” The statute does not expressly create a private cause of action.
On April 21, 1995, pursuant to Section 87, a Memorandum of Understanding (“MOU”) was signed by MassPike, the Massachusetts Port Authority, Massachusetts Bay Transportation, the Department of Highways, and the Executive Office of Transportation and Construction (collectively, “the Agencies”). The MOU sets forth a plan for an “interagency-compatible” electronic toll collection and traffic management system. An interagency-compatible system is defined as one “that is functionally interoperable between and among the various Transportation Facilities.” MOU, para. 1. The MOU further provides that an agency’s procurement of an ETTM system “shall comply with the requirements for an ETTM System as specified in the `Common Technical Specifications for ETTM Systems’ and otherwise be functionally interoperable with any ETTM System of any other Party.” MOU, para. 3. The Common Technical Specifications (“CTS”) “encompass the minimum acceptable parameters for the implementation of an ETTM system.” MOU, para. 2. Any party may propose additions or modifications to the CTS, in which case the parties shall endeavor in good faith to agree unanimously. MOU para. 2.
On July 7, 1995, MassPike issued an RFP for an ETTM system. It has received four responses to its RFP, including one from AT/COMM.
The CTS “ETTM System Parameter” for “ETTM Account Validation/Verification” states: “To be handled separately by each Agency; Real-Time ETC account verification and validation.” The RFP incorporates the required Real-Time parameters. It also specifies that ETTM Account Validation/Verification shall be centralized through a comprehensive listing maintained in the lane controller. The RFP also states that transponder-based accounting and validation may be proposed so long as sufficient information is stored by the Toll Administrative Computer System to verify transponder balances.
The CTS “ETTM System Parameter” for “Transponder Type” states as follows: “Read/Write capability; Works with Read Only system; Operating temperature (-20F to 158 F); Battery life of seven years preferred; Operating speed of 0 to 80 mph.” The CTS are silent as to capability for audiovisual features. The RFP states that certain audiovisual features, namely weather information and account balance, are “neither required nor desired.” AT/COMM submitted both a bid in compliance with the RFP and an alternative bid that uses its own patented so-called “smart transponder” technology. Its “smart transponder” technology uses a decentralized system and contains the interactive features not required nor desired by the RFP.
MassPike intends to have the ETTM system procured and implemented to coincide with the opening of the Third Harbor Tunnel, scheduled for December 15, 1995.
Plaintiff seeks to enjoin the award of a contract under the RFP on the grounds that the RFP impermissibly narrows the Common Technical Specifications, and therefore, violates Section 87.
DISCUSSION
In evaluating a request for preliminary injunctive relief, the court must first evaluate, in conjunction, the moving party’s claim of injury and its chance of success on the merits. In other words, the risk of harm to the moving party is to be evaluated in light of its chance of success on the merits. The risk of irreparable harm, if any, to the moving party if the injunction is not granted is then to be balanced against the risk of irreparable harm, if any, which granting the injunction would create for the opposing party. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Since this dispute is between a private party and a public agency, the risk of harm to the public interest is also a factor to be taken into account in deciding whether or not preliminary injunctive relief is appropriate. Commonwealth v. Mass. CRINC, 392 Mass. 79, 89
(1984).
Likelihood of Success on the Merits CTS Minimum Acceptable Parameters
Even assuming AT/COMM has standing to complain that the CTS have been impermissibly narrowed, which appears questionable, it is not likely to prevail on the merits regarding its claim that section 87 has been violated.
ETTM Account Validation/Verification
AT/COMM contends that the RFP “impermissibly narrows” the CTS by requiring that ETTM Account Validation and Verification be performed through a centralized, as opposed to a decentralized, system. The CTS only specify that whichever system selected must use “Real-Time.”
In fact, the RFP provides that the system may be decentralized if there is centralized accounting. Equally important, there is no dispute that the centralized system preferred by MassPike is a Real-Time system. Thus, it does not appear to be outside the minimum parameters stated in the CTS. The MOU does not contemplate that an Agency’s RFP simply be the CTS and nothing more. If it had intended that result, the procurement paragraph easily could have been drafted to state just that. Instead, the MOU states that an RFP “shall comply with the requirements” of the ETTM system described in the CTS. By specifying a “Real-Time” methodology, the RFP appears to be compliant. This would have been a different case had MassPike specified a non-Real-Time methodology in the RFP. The MOU also states that any RFP must “otherwise” be “functionally interoperable,” which signals that the CTS are not intended to be exhaustive.
AT/COMM seems to be arguing that the account validation and verification system requiring centralized accounting violate Section 87 because they would produce inter-agency incompatibility. Complaint, paragraphs 11-12.[2] That argument is not persuasive. If AT/COMM is correct that each of the five Agencies must specify in their respective RFPs only that the accounting system be “Real-Time” and not how to achieve that, then it must have been contemplated by the Agencies that the winning bidder on one RFP might use a centralized system and the winning bidder on the RFP for another Agency might use a decentralized system. Because different Agencies likely would end up with different account verification and validation methodologies by not specifying any method, the specification of one methodology over another presumptively does not lead to inter-agency incompatibility. If it did, the CTS presumably would have specified one particular methodology, and it did not. Moreover, MassPike has submitted an affidavit that attests to the fact that all of the Agencies had the opportunity to review the RFP and none have objected to it.
Furthermore, the CTS specifically state that the ETTM account validation and verification system is to be “handled separately by each Agency.” AT/COMM’s restrictive reading of the word “handles” is questionable.
At bottom, MassPike has decided to specify the way it prefers its account validation and verification be performed rather than leaving it to chance. This does not preclude another Agency from leaving it to chance by just specifying a “Real-Time” system in its own RFP. The plaintiff has not made a convincing argument that MassPike violated Section 87.
Audiovisual Features
Equally unconvincing are plaintiff’s claims that the RFP violates Section 87 by stating that certain technologies, namely interactive audiovisual features, are “neither required nor desired.” MassPike appears to have excluded these features in the interests of safety to avoid driver distractions. The CTS do not mention these features, so it hardly can be said that the RFP does not comply with the CTS. Neither is it likely that the RFP imposes a condition that would render MassPike’s system not functionally interoperable with the ETTM of a different Agency. The MOU was the result of many months of effort. If the elimination of these features would render MassPike’s system not functionally interoperable, it would appear to follow that these features would be needed to make an ETTM functionally interoperable. Presumably, the drafters of the MOU would not have overlooked such a basic technological proposition. Furthermore, plaintiff’s bid states that its technology has the flexibility of disabling the driver interactive features when desired, allowing it to operate in an active role on one Agency’s facilities and in a passive mode on another Agency’s facilities.
Standing
AT/COMM’s standing to bring this claim is subject to serious doubt. Section 87 does not contain an express private cause of action. The MOU specifically states that “no third party rights are conferred upon anyone not a party to the MOU.” MOU, para. 5. “A party has standing when it can allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.” Town of Northbridge v. Town of Natick, 394 Mass. 70, 75 (1985) (quoting Penal Institution Commissioner. v. Commissioner of Correction, Mass. 527 (1981). One area of legislative concern appears to have been the attraction of multiple bidders. The plaintiff does not contend that the RFP narrowed the field of potential bidders. The other area of legislative concern was interagency compatibility. The injury allegedly suffered by AT/COMM is its inability to sell its smart-transponder system to MassPike. Section 87 did not mandate a particular type of technology. It is unlikely the legislature intended that a private party could litigate whether or not a system would result in inter-agency compatibility when the Agencies concerned do not take that position. “An injury alone is not enough; a plaintiff must allege a breach of a duty owed to it by the public defendant.” Id.
Irreparable Harm
If, indeed, AT/COMM were precluded from participating in a fair and honest bidding process, it would appear that it would suffer some irreparable harm, but in the circumstances of this case, it is not obvious that such harm is inevitable. AT/COMM’s situation is far different from one in which plaintiff is precluded from participating in the bidding process by submitting a compliant bid. Here, At/COMM has submitted a compliant bid. It has not alleged that it is at a competitive disadvantage vis-a-vis the specifications contained in the RFP. There is no allegation that by failing to enjoin MassPike, AT/COMM will not be awarded the contract and will lose profits thereunder. Compare TRW Envtl. Safety Sys. v. United States, 16 Cl. Ct. 520, 529 (1989)(“a plaintiff moving for preliminary injunction need only allege, in order to establish irreparable injury, that by failing to enjoin, it will not be awarded the contract and will lose profits thereunder”). Indeed, plaintiff admits in its bid that its smart transponder technology was made 100% compliant with the RFP without “extensive development.” AT/COMM’s bid also states that its technology could operate on a “more passive mode” when operating on MassPike’s facilities and switch to a “fully-active” mode when on another Agency’s facilities. There is no claim that AT/COMM would make more profit on the sale of its “smart transponder” to the MassPike than it would make on the system contained in its compliant bid, should its bid be chosen. AT/COMM only alleges that by not bidding its “smart transponder” technology, it has been deprived of the cost and performance advantages it enjoys in competition with differing technical approaches.
Plaintiff also maintains that the failure to grant a preliminary injunction would deprive it of the opportunity of having its “smart transponder” technology viewed by the standard-setting bodies of New England, and by the New Hampshire Bureau of Turnpikes, which is considering its own ETTM system later this year. However, plaintiff’s bid states that ETTM’s using its technology are operating in four other states, two other countries, and is under contract to be supplied to the Maine Turnpike. The argument that Masspike’s lack of interest in the smart transponder technology will have an impact on other standard-setting bodies is highly speculative. This court is not persuaded that the loss of the chance to submit a bid for a particular system raises a significant threat of irreparable injury to the plaintiff.
Plaintiff argues that the public interest would not be harmed by an injunction because its “smart transponder” technology is significantly less expensive and, thus, would save taxpayers money. However, given the affidavits submitted by MassPike, this court has no reason to doubt that MassPike had valid safety and other reasons for drafting the RFP as it did. The MOU states that “time is of the essence” and that it is in the best interest of the Commonwealth that the procurement and implementation of the ETTM system proceed on schedule to coincide with the early opening of the Third Harbor Tunnel, scheduled for December 1995. MOU para. 6. In sum, after considering together the low likelihood of success on AT/COMM’s claims that the RFP violated Section 87, the questionable standing of the plaintiff to complain about the alleged injuries, the speculative nature of plaintiff’s irreparable harm, and MassPike’s and the public’s interest in proceeding on schedule with the procurement and implementation of the ETTM system, this court determines that AT/COMM is not entitled to preliminary injunctive relief.
ORDER
For the foregoing reasons, it is hereby ORDERED that plaintiff’s motion for a preliminary injunction be DENIED.
E. Susan Garsh Justice of the Superior Court
Dated: October, 1995