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HK&S Constr. Holding Corp. v. Dible

Supreme Court of Rhode Island

April 7, 2015

HK& S Construction Holding Corp.
Lynne S. Dible, in her official capacity as Finance Director and Purchasing Official of the Town of Middletown et al

Newport County Superior Court. (NB 11-431). Associate Justice Brian P. Stern.

For Plaintiff: Peter L. Kennedy, Esq.

For Defendants: Marc Desisto, Esq., Stanley F. Pupecki, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


Page 408

Indeglia, Justice

This case came before the Supreme Court on the appeal of the plaintiff, HK& S Construction Holding Corp. (HK& S or plaintiff), of a Superior Court grant of summary judgment in favor of the defendants, Town of Middletown (town),[1] Robert J. Rafferty (Rafferty), and Woodard & Curran, Inc. (Woodard & Curran). In granting the defendants' motion, the Superior Court rejected the plaintiff's claim that the town wrongfully failed to award the plaintiff a contract to construct a drainage project that had been put out to bid and that Woodard & Curran owed it a duty. On appeal, the plaintiff argues that the Superior Court erred in determining that the plaintiff's bid was nonresponsive, thereby nullifying the grant of summary judgment. This case came before the Supreme Court for oral argument on March 4, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.


Facts and Travel

On June 1, 2011, the town issued an invitation for bids on a drainage improvement project, which involved the installation of 2,100 linear feet of drainpipe and structures with outfalls to Easton Bay. The project called for both underground and subaqueous work, as well as a significant amount of blasting. Providing the town with consulting services, Woodard & Curran agreed to tabulate and evaluate the bids. The request for proposal (RFP) included a set of instructions that detailed bid requirements. One entry, titled " Documents to be Returned With Bid," provided: " Failure to completely execute and submit the required documents before the Submittal Deadline [of 10:30 A.M., July 14, 2011] may render a bid non-responsive."

Page 409

An additional document, titled, " Bid Documents to Be Returned," listed four documents that " must be completed and submitted on or before the Submittal Deadline for the Bid to be considered complete." Those documents were: (1) a " Bid Form" ; (2) a " Non-Collusion Affidavit" ; (3) the " Bidder's Statement Regarding Insurance Coverage" ; and (4) the " Bidder's Statement of Relevant Experience." The RFP also requested additional information regarding the subcontractor performing the subaqueous construction and blasting, as well as eight additional items constituting the " company profile," which, according to the RFP, the bidder " must provide" and " shall [be] include[d] with the[ ] bid." Those eight additional items included documentation of: (1) company ownership; (2) location of company offices; (3) the number of local and national employees; (4) the locations from which employees would be assigned; (5) the name, address, and phone number of the bidder's contact for a contract resulting from their bid; (6) a company background and history describing why it was qualified to provide the services described; (7) a statement of the length of time the bidder has been providing the services described; and (8) the resumes for key staff to be responsible for the performance of any contract resulting from the bid.

Two contractors submitted bids: HK& S and C.B. Utility Company, Inc. (C.B. Utility). On July 14, 2011, the town held a bid meeting, at which it unsealed the bids to reveal that plaintiff was the low bidder. The plaintiff proposed to complete the work for $1,631,125, while C.B. Utility proposed to complete the work for $3,744,285. In his August 1, 2011 letter to the town, Rafferty, technical leader of Woodard & Curran, noted that plaintiff's bid failed to include the company profile and subcontractor identification.[2] As a result, Woodard & Curran recommended against awarding plaintiff the project and in favor of either " negotiating" a contract with C.B. Utility or putting the project out for rebidding.

On August 3, 2011, the town council held a special meeting to consider the bids. Town administrator Brown reviewed the bids with the council. After Brown and Rafferty fielded questions, the town council acknowledged that plaintiff's bid was " non-responsible" and " voted unanimously to adopt the recommendation ...

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