HK&S CONSTRUCTION HOLDING CORP.
LYNNE S. DIBLE, individually and in her official capacity as Finance Director and Purchasing Official of the Town of Middletown, SHAWN J. BROWN, individually and in his official capacity as Town Administrator of the Town of Middletown, WARREN HALL, individually and in his official capacity as Town Engineer of the Town of Middletown, ARTHUR S. WEBER, BRUCE J. LONG, RICHARD P. CAMBRA, CHRISTOPHER T. SEMONELLI, EDWARD SILVEIRA, ANTONE C. VIVEIROS and BARBARA VONVILLAS, in their capacities as Members of the Middletown Town Council, the TOWN OF MIDDLETOWN, ROBERT J. RAFFERTY, and WOODARD & CURRAN, INC.
Newport County Superior Court
For Plaintiff: Peter Lawson Kennedy, Esq.; Kevin P. Gavin, Esq.
For Defendant: Turner C. Scott, Esq.; Marc DeSisto, Esq.; Mark P. Dolan, Esq.
A construction contractor claims that the Defendants' denial of a municipal award was unlawful and motivated by bad faith. Before the Court are the Defendants' Motions for Summary Judgment.
Facts and Travel
Complaint in Federal Court
Plaintiff HK&S Construction Holding Corp. (Plaintiff), a construction contractor, sued the Town of Middletown (Town); certain Town officials; Warren Hall (Hall), the Town's Engineer; members of the Town Council; Woodard & Curran, Inc. (Consultant), an engineering consulting firm hired by the Town; and Robert J. Rafferty (Rafferty), Vice President of the Consultant, following the award of the Town's Esplanade Drainage Improvement Project Contract (Drainage Project or Contract) to CB Utility Co., Inc. (CB Utility), a competitor of the Plaintiff. The Complaint was filed in United States District Court for the District of Rhode Island (C.A. No. NC 12-14-M). The Plaintiff alleges that the Plaintiff and CB Utility were the only two entities that submitted bids for the Contract in response to the Request for Proposal (RFP) issued by the Town. The Plaintiff contends that it submitted the low bid for the project, but alleges that the Town and the Consultant unlawfully and in bad faith denied the Plaintiff the Contract award, in the process violating the Plaintiff's rights under the U.S. and Rhode Island Constitutions. The case has been remanded to this Court.
B Complaint on Remand to this Court
The Plaintiff alleges that its bid on the Drainage Project "was responsive, " Compl. ¶ 15, and that the Plaintiff "was the lowest responsible bidder" for the Drainage Project, thus entitling it to the Contract award. Compl. ¶ 38. The Plaintiff alleges that the Town's denial of the Contract award to the Plaintiff violated the Award of Municipal Contracts Act, G.L. 1956 §§ 45-55-1, et seq.; the Town Purchasing Ordinance, Chapter 33A of the Town Code; and "was the result of corruption, bias and/or bad faith, and was so unreasonable and/or so arbitrary as to constitute a palpable abuse of discretion." Compl. ¶ 39. The Plaintiff further argues that the RFP was tainted by lack of proper notice because the Town failed to publish notice of the RFP as required by § 45-55-5. Compl. ¶ 27. Through its Third Amended Complaint, the Plaintiff seeks declaratory judgment, compensatory damages, and attorney's fees for Wrongful Denial of Municipal Contract Award (Count I). The Plaintiff also alleges Intentional Interference With Prospective Contractual Relations (Count II); charges that the Defendants violated the Plaintiff's Procedural Due Process (Count III), Substantive Due Process (Count IV), and Equal Protection (Count V) rights under the Rhode Island and U.S. Constitutions; and alleges that Defendants Rafferty and the Consultant were negligent for failing to exercise their duty of reasonable care and due diligence in evaluating the bids and bidders in making their recommendations to the Town for award of the Contract (Count VI).
The Defendants have moved for Summary Judgment under Rule 56(c) of the Rhode Island Rules of Civil Procedure. They argue that there is no genuine issue of material fact and that the Defendants are entitled to judgment as a matter of law. With respect to the Plaintiff's allegation of Wrongful Denial of Municipal Contract Award in Count I, the Defendants contend that the Plaintiff's bid did not qualify for the Town's consideration because the bid itself was nonresponsive. The Defendants maintain that the Plaintiff's bid was materially noncompliant in that it did not contain certain documents that were required pursuant to the Town's Instructions to Bidder. The Defendants aver that these omissions had the effect of rendering the Plaintiff's bid nonresponsive. The Defendants argue that the Town was not obligated to allow the Plaintiff to cure its defective bid in light of the fact that the bid itself was nonresponsive. Since there was only one responsive bidder—CB Utility—the Defendants claim that the Town was within its rights to exclusively negotiate with CB Utility for a new price pursuant to §§ 45-55-7 and 45-55-8. Alternatively, the Defendants argue that even if the Plaintiff's bid was responsive, the Plaintiff had the onus of supplying any missing information under a plain reading of the Town Ordinance. Finally, with respect to the Plaintiff's argument that the RFP was tainted by lack of proper notice, the Defendants contend that the Plaintiff lacks standing to challenge the award of the Contract to CB Utility because the Plaintiff cannot establish injury or causation inasmuch as the Plaintiff, in fact, knew about the existence of the RFP.
Standard of Review
Summary judgment is proper when "no genuine issue of material fact is evident from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, and the motion justice finds that the moving party is entitled to prevail as a matter of law." Smiler v. Napolitano, 911 A.2d 1035, 1038 (R.I. 2006) (quoting Rule 56(c)). When considering a motion for summary judgment, this Court must draw "'all reasonable inferences in the light most favorable to the nonmoving party."' Hill v. Nat'l Grid, 11 A.3d 110, 113 (R.I. 2011) (quoting Fiorenzano v. Lima, 982 A.2d 585, 589 (R.I. 2009)). The burden lies on the nonmoving party to "prove the existence of a disputed issue of material fact by competent evidence, " rather than resting on the pleadings or mere legal opinions and conclusions. Hill, 11 A.3d at 113. Where it is concluded "'that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, "' summary judgment shall enter. Malinou v. Miriam Hosp., 24 A.3d 497, 508 (R.I. 2011) (quoting Poulin v. Custom Craft Inc., 996 A.2d 654, 658 (R.I. 2010)). However, "if the record evinces a genuine issue of material fact, summary judgment is improper." Shelter Harbor Conservation Soc'y, Inc. v. Rogers, 21 A.3d 337, 343 (R.I. 2011) (citations omitted).