No. 00-2400.Commonwealth of Massachusetts Superior Court SUFFOLK, SS.
June 14, 2000
SIKORA, J.
INTRODUCTION
The plaintiff, G.V.W., Inc. (“GVW”) has brought this motion for a preliminary injunction pursuant to Mass.R.Civ.P. 65(b). In its motion, GVW seeks to restrain the defendant Town of Norwell (“Norwell”) from awarding a contract to John T. Callahan Company (“Callahan”).[1] For the reasons discussed below, GVW’s motion will be DENIED.
BACKGROUND
On or about March 29, 2000, Norwell issued an invitation for Bids/Advertisement inviting sealed bids for renovations to the Norwell High School located on 18 South Street, Norwell, Massachusetts (the “Project”), with bidding procedures in accordance with the provisions of G.L.c. 149, §§ 44A-44H. The original solicitation for the Project requested that the general bidders submit a price for the base scope of work and for five alternate elements (“alternates”). Norwell requested prices for alternates in part because Norwell believed that the costs for construction of the Project could be greater than was indicated in the Norwell 2001 Program Budget. By pricing various alternatives, Norwell hoped to control the cost of the Project by accepting only those alternates within the budget limitation.
Following the original solicitation, Norwell, through its Architect, issued Addendum No. 1 to the Project Contract Documents, which removed work from the base scope and added, among other things, “Alternate No. 6.” Alternate No. 6 involved the following addition to the scope of the contract work: “Drainage improvements including infiltration trench and catch basins as shown on Drawings C1 and C2 excluding work indicated in AD1-C1.”
When the sealed bids were opened, Norwell determined that Callahan was the low bidder with a bid of $12,566,000 and that GVW was the second low bidder with a bid of $12,763,801. Norwell also determined that Callahan, as well as the third and fourth low bidders, had neglected to include a price for Alternate No. 6. Norwell could not afford to accept any of the alternates due to budget constraints. Norwell, therefore, concluded that Callahan’s omission of a price for Alternate No. 6 was a minor or immaterial omission that would have absolutely no effect on the contract price. As a result, Norwell decided to award the contract to Callahan.
On May 11, 2000, the day after general bids were opened, GVW sent a fax to Norwell in which it protested Callahan’s bid. On May 17, 2000, the Norwell Building Committee voted to award the contract to Callahan because it determined that Callahan’s omission was inconsequential since Norwell could not afford to pay for any of the work described in the alternates. On May 25, 2000, Norwell issued a Letter of Intent to Callahan and requested that Callahan submit the appropriate certifications and bonds.
The $54 million budget for the Norwell 2001 Program proposed by the Norwell School Building Committee and approved by the Town anticipated that construction costs for the Project would be $12,367,209. Callahan’s bid was the lowest at $12,566,000. Callahan’s bid is $198,000 over budget. Although this result presents a significant overage, Norwell states that it is able to absorb the overage due to the provision of a construction contingency in the Project budget. GVW’s bid of $12,763,801 is more than $396,000 over budget.
GVW argues that Norwell accepted Callahan’s bid in violation of G.L.c. 149, § 44E (3), and that this court should enjoin Norwell from awarding the contract to Callahan. As a result, argues GVW, the Norwell should award the contract to GVW because it complied with G.L.c. 149, § 44E (3) and because it would be the next lowest bidder. Norwell, on the other hand, argues that Callahan’s bid substantially complied with G.L.c. 149, § 44E (3) and that the omission of a price for Alternate No. 6 was only a minor deviation from the requirements set out in G.L.c. 149, § 44E.
DISCUSSION
In determining whether to grant a preliminary injunction, Massachusetts courts employ the balancing test set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-617 (1980). See also Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990). First, we must evaluate “the moving party’s claim of injury and its chance of success on the merits.” Id. at 617. Second, should the moving party be likely to prevail on the merits, the court must compare the actionable irreparable harm likely to result alternatively from the grant of equitable relief and the denial of such relief.
If denial “would subject the moving party to a substantial risk of irreparable harm,” the court will balance the risk against any similar risk of irreparable harm which allowance of the injunction would create for the opposing party. Id. “In the context of a preliminary injunction, the only rights which may be irreparably lost are those not capable of vindication by a final judgment, rendered either at law or in equity. Id. at 617 n. 11. Moreover, in appropriate cases, the court should also consider the risk of harm to the public interest. GTE Products Corp. v Stewart, 414 Mass. 721, 723. (1993). Commonwealth v. Massachusetts CRINC., 392 Mass. 79, 89 (1984); Biotti v. Board of Selectmen of Manchester, 25 Mass. App. Ct. 637, 640 (1988). A preliminary injunction is a drastic remedy that a court should not grant unless the movant, by a clear showing, carries its burden of persuasion. Charles Wright Arthur Miller, 11 Federal Practice Procedure, § 2948, at 129-130 (1995). “If the moving party demonstrates both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibility of success on the merits warrants issuing an injunction.” Packaging Indus., supra, at 617, n. 12 (citations omitted).
With those analytical principles in mind, we now turn to a consideration of the factual allegations and legal arguments presented by the parties with respect to GVW’s request for a preliminary injunction.
I. Substantial Likelihood of Success on the Merits
GVW reasons that it is likely to succeed on the merits of its claim because of Callahan’s failure to comply with G.L.c. 149, § 44E (3), which sets forth certain statutory mandates governing the public bidding process. Norwell, on the other hand, argues that GVW is not likely to succeed on the merits of its claim because Callahan substantially complied with G.L.c. 149, § 44E (3). Norwell further argues that it is in the public interest to award Callahan the contract because to do otherwise would impose a burden on its budget and eventually on its taxpayers.
G.L.c. 149, § 44E (3) provides:
General bids shall be for the complete work as specified and shall include the names of sub-bidders and the amounts of their sub-bids; and the general contractor shall be selected on the basis of such general bids. Every general bid which is not accompanied by a bid deposit as prescribed by [G.L.c. 149, § 44B (2)], or which otherwise does not conform with [G.L.c. 149, §§ 44A-44H], inclusive, or which is on a form not completely filled in, or which is incomplete, conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such bid. No such 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 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. (emphasis added).
At oral argument, there was dispute over the construction of the last sentence of G.L.c. 149, § 44E (3). G.L.c. 149, § 44E (3) requires bid forms to be completely filled in. The last sentence of G.L.c. 149, § 44E
(3), however, exempts a bidder from submitting prices or information for any item for which no designated space is furnished on the bid form. The next clause of the last sentence, however, provides an exception to the exception, and requires a bidder to provide any prices or information required by G.L.c. 149, § 44E (3). Thus, the last clause in the last sentence of G.L.c. 149, § 44E (3) pulls one back into the requirements of the statute and requires the bidder to provide certain information on the bid form, regardless of whether a space is present on the bid form for that information.
Stated simply, a bidder must provide certain information on a bid for regardless of whether a space is designated on the bid form for that information. (emphasis added). Every bid form, therefore, must: (1) contain the names of the sub-bidders (if any); (2) contain the amounts of the sub-bidders sub-bids (if any); (3) be completely filled in; (4) not be incomplete, conditional or obscure; and (5) not contain any addition not called for. The failure of a bidder to comply with these five requirements will render his bid invalid regardless of whether a space was designated on the bid form for any one of these five requirements.
Callahan’s bid, therefore, may have been in technical violation of G.L.c. 149, § 44E (3) because it was not completely filled. In certain circumstances, however, a party may be excused for minor deviations from G.L.c. 149, § 44E (3). Specifically, Massachusetts courts have held that while an incomplete bid will certainly give the awarding authority the right to reject a bid, rejection is not always required. Chick’s Construction Co. Inc., v. Wachusett Regional High School District School Committee, 343 Mass. 38, 41 (1961). In Chick’s, the Supreme Judicial Court stated, “[M]inor deviations from [bid] requirements will not require rejection of a bid. Id. Likewise, the Massachusetts Appeals Court has stated: “If . . . the deviation from [bidding statute] requirements is minor or trivial, the [awarding] authority has discretion and may either accept or reject the bid.” Peabody Construction Co. v. Boston, 28 Mass. App. Ct. 100, 104 (1989) (citation omitted).
In a concurring opinion in Peabody Justice Kass offered some practical guidance for application of the statutory formalities.
The cases line up persuasively that public bidding authorities have discretion to waive or to count as disqualifying minor defects in bid responses. Courts, in general, should not second-guess the honest exercise of discretion by bidding authorities for the excellent reason that a bidding authority . . . is in a better position to evaluate the significance of an apparently minor deviation than a judge is.
Id. at 106-107. He emphasized that bidding authorities ought to exercise their discretion with regard to the public interest; that bidding authorities, where possible, should use their discretion to award bids to the lowest bidder, even though the lowest bidder may have committed a trivial or minor violation of the bidding statutes; and that such a course of action would result in taxpayers shouldering a lower tax burden. Id. at 107.
Here, Callahan committed only a minor deviation from G.L.c. 149, § 44E
(3). It omitted a price for an alternate that Norwell determined it could not afford to accept in any event. Furthermore, Norwell, in its original solicitation for the project, requested prices for only five alternates, not six. Alternate No. 6 was added through a later addendum to the original solicitation. Callahan’s omission does not appear to have the intent or the effect of violating the bedrock policies of the bidding statute. Moreover, this court finds that the acceptance of Callahan’s bid protects the public interest of the residents of Norwell. Callahan’s bid was $198,791.00 less than GVW’s bid. The purpose of the competitive bidding statute is to “ensure that the awarding authority obtains the lowest price among responsible contractors’, and to establish an open and honest procedure for competition for public contracts.” John T. Callahan Sons, Inc. v. City of Malden, 430 Mass. 124, 127 (1999). The circumstances here do not disclose any question of the integrity of the bidding process and therefore do not warrant a mandatory disqualification. The Town retained some discretion. By awarding the contract to Callahan, Norwell was able to obtain the lowest possible price among responsible contractors.
ORDER
For the foregoing reasons, the court must DENY the plaintiff GVW’s motion for preliminary injunctive relief.