Barletta/Aetna I-195 Washington Bridge North Phase 2 JV v. State, Department of Administration, 122120 RISUP, PC-2020-06551

Docket NºC. A. PC-2020-06551
Opinion JudgeTAFT-CARTER, J.
Party NameBARLETTA/AETNA I-195 WASHINGTON BRIDGE NORTH PHASE 2 JV; AETNA BRIDGE COMPANY; and BARLETTA HEAVY DIVISION, INC. Petitioners, v. STATE OF RHODE ISLAND, DEPARTMENT OF ADMINISTRATION, by and through BRETT SMILEY, in his official capacity as Chief Purchasing Officer; and STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, by and through PETER ALV...
AttorneyFor Plaintiff: Jackson C. Parmenter, Esq. Erin A. Hockensmith, Esq. Michael A. Kelly, Esq. For Defendant: Daniel W. Majcher, Esq. For Intervenor: Jeremy Ritzenberg, Esq. William M. Russo, Esq.
Case DateDecember 21, 2020
CourtSuperior Court of Rhode Island

BARLETTA/AETNA I-195 WASHINGTON BRIDGE NORTH PHASE 2 JV; AETNA BRIDGE COMPANY; and BARLETTA HEAVY DIVISION, INC. Petitioners,

v.

STATE OF RHODE ISLAND, DEPARTMENT OF ADMINISTRATION, by and through BRETT SMILEY, in his official capacity as Chief Purchasing Officer; and STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, by and through PETER ALVITI, JR., P.E., in his official capacity as Director Respondents.

C. A. No. PC-2020-06551

Superior Court of Rhode Island, Providence

December 21, 2020

For Plaintiff: Jackson C. Parmenter, Esq. Erin A. Hockensmith, Esq. Michael A. Kelly, Esq.

For Defendant: Daniel W. Majcher, Esq.

For Intervenor: Jeremy Ritzenberg, Esq. William M. Russo, Esq.

DECISION

TAFT-CARTER, J.

Before this Court for decision is the Rhode Island Department of Administration (DOA), by and through Brett Smiley acting in his official capacity of Chief Purchasing Officer for the State of Rhode Island, and Rhode Island Department of Transportation's (RIDOT), by and through Peter Alviti, Jr., P.E. acting in his official capacity as Director (Respondents), Motion to Dismiss the Petitioners' Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus (Petition). Respondents move to dismiss the Petition for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure and/or for lack of subject matter jurisdiction under Rule 12(b)(1). Barletta/Aetna I-195 Washington Bridge North Phase 2 JV (the JV), Aetna Bridge Company (Aetna), and Barletta Heavy Division, Inc. (Barletta) (Petitioners) object to Respondents' Motion to Dismiss. The Court heard this motion remotely via WebEx on November 19, 2020. Jurisdiction is pursuant to Rule 12 of the Superior Court Rules of Civil Procedure.

I. Facts and Travel

This action arises out of the bidding process that occurred during the second phase of a construction project on I-195 Washington Bridge North (Project) owned by RIDOT. The DOA is a state agency in charge of advertising requests for proposals and creating the "Procurement Regulations" which govern the solicitation process pursuant to G.L. 1956 §§ 37-2-1 et seq. (State Purchases Act). See G.L. 1956 § 37-2-13; 220-RICR-30-00-5.6(C)(5). Aetna is a Rhode Island corporation with its principal place of business located in Warwick, Rhode Island. (Petition ¶ 2.) Barletta is a Massachusetts corporation with its principal place of business located in Canton, Massachusetts. Id. ¶ 3. The JV is a joint venture organized for the purposes of submitting a proposal in order to obtain a contract with RIDOT in connection with phase two of the Project. Id. ¶ 1. Cardi Corporation (Cardi), the Intervenor in this action, was hired to perform certain work during the first phase of the Project and submitted a bid for the second phase of the Project as well. See id. ¶¶ 12, 19.

In December of 2016, Respondents issued a request for proposals concerning I-195 Washington North (Phase 1 of the Project) and awarded the contract to Cardi. Id. ¶¶ 11-12. Cardi performed certain work for Phase 1 until RIDOT terminated and/or cancelled the contract between the parties. Id. ¶ 13. On April 10, 2020, Respondents issued Request for Proposal # 7603376 (Phase 2 RFP), which sought proposals for "Best Value Design-Build Procurement for Bridge Group 57T-10: I-195 Washington North, Phase 2" (Phase 2 of the Project). Id. ¶¶ 1, 14. Responses by bidders were due on July 17, 2020. Id. ¶ 15. In total there were three bidders who submitted proposals, including Petitioners and Cardi. Id. ¶ 19.

Section 2.1 of Part 1 of the Phase 2 RFP provided that Phase 2 of the Project "will principally consist of the rehabilitation of the I-195 Washington Bridge North Phase 2 and the associated new on and off ramps in Providence and East Providence . . . Phase 1 of the project was the recently completed partial rehabilitation of the substructure of the bridge." Id. ¶ 16. Further, Section 3.1 of Part 1 of the Phase 2 RFP included a list of certain work that would be included in the rehabilitation of the Washington Bridge. Id. ¶ 17. One such activity included in the list was the "installation of link slabs." Id. The Phase 2 RFP also included a description of the work that occurred during Phase 1, which in pertinent part stated that "[a] partial rehabilitation of the Washington Bridge (Washington North Phase 1) was undertaken from 2016 through 2019 as part of Contract 2016-CB-059 . . . [O]nly a portion of the work depicted in the 2016 contract documents was completed during the Washington North Phase 1 project[.]" Id. ¶ 18.

Following the issuance of the Phase 2 RFP, the three bidders, including the JV, submitted questions to Respondents in order to clarify the quantity and description of the work completed during Phase 1 of the Project. Id. ¶ 19. One such question listed numerous repair items that were included in the previous Phase 1 contract with Cardi but were not included in "Form N and Section 3.7.3 of the [Phase 2] RFP" and asked for Respondents to provide estimates for those repair items. Id. RIDOT responded to the question about the missing repair items as follows: "With the exception of the bearing replacements at Pier 14 the items mentioned have not been performed. For items with estimated and only bid quantities, previously completed quantities have been taken into account. No additional items will be added to Form N." Id.

"In addition to the questions and answers exchanged," the JV attended certain field/site inspections where it apparently became "evident" to the JV that certain work that was contemplated for Phase 2 of the Project (including work on "link slabs") "may" have been completed during Phase 1 of the Project. See id. ¶¶ 22-23. However, because of Respondents' answers to the bidders' questions and what was stated in the Phase 2 RFP, Petitioners included in their submitted proposal the cost for the work that they had observed may have been completed during Phase 1. Id. ¶¶ 21-24.

On August 17, 2020, Respondents issued an "Apparent Best Value determination" that put forth each bidder's "final score." Id. ¶¶ 50-54. Based on this determination, Petitioners then became aware that Cardi's proposal price for Phase 2 was "significantly" less than the JV's price proposal, and, on August 27, 2020, submitted a bid protest pursuant to the States Purchases Act and the Procurement Regulations. Id. ¶ 56.

On September 15, 2020, in response to the bid protest, the Respondents issued a State Determination, stating, among other things, that Cardi had "proposed maintaining all existing bridge joints and did not include the construction of any link slabs at fixed joints[.]" Id. ¶¶ 58, 60. This is apparently work that Petitioners had included in their proposal based on the Phase 2 RFP and the Respondents' responses to the bidders' questions. Id. ¶¶ 61-63.

On September 17, 2020, Petitioners filed their three-count Petition with this Court. Count I requests a declaratory judgment that: (1) Cardi's proposal is disqualified, and/or (2) once further information concerning Phase 1 of the Project is released, the bidders would be allowed to submit new price proposals, and/or (3) the original Phase 2 RFP be cancelled and be reissued with information about the work performed in Phase 1. Id. ¶¶ 81-87. Count II requests injunctive relief enjoining the entire procurement process until all information pertaining to the work in Phase 1 is revealed. Id. ¶¶ 88-93. Count III requests a writ of mandamus compelling the Respondents to stop the procurement process, void all steps previously taken, disqualify Cardi's proposal, and/or cancel and reissue the Phase 2 RFP. Id. ¶¶ 94-97. Respondents filed their motion to dismiss this Petition on October 13, 2020. This Court now renders its decision.

II. Standard of Review

A. Rule 12(b)(1)

Rule 12(b)(1) of the Superior Court Rules of Civil Procedure permits a justice to dismiss a civil matter for "[l]ack of jurisdiction over the subject matter." A question of subject-matter jurisdiction may be raised at any time before judgment. State Loan Co. v. Barry, 71 R.I. 188, 189, 43 A.2d 161, 162 (1945). Likewise, "[a] challenge to subject-matter jurisdiction may not be waived by any party and may be raised at any time in the proceedings." Boyer v. Bedrosian, 57 A.3d 259, 270 (R.I. 2012) (quotation omitted). General Law 1956 § 8-2-14 provides that this Court "shall have original jurisdiction of all actions at law where title to real estate or some right or interest therein is in issue … and shall have exclusive original jurisdiction of all other actions at law in which the amount in controversy shall exceed the sum of ten thousand dollars ($10, 000); and shall also have concurrent original jurisdiction with the district court in all other actions at law in which the amount in controversy exceeds the sum of five thousand dollars ($5, 000) and does not exceed ten thousand dollars ($10, 000)[.]"

While the Rhode Island Superior Court is a court of general jurisdiction, it does not have subject-matter jurisdiction over all cases if such jurisdiction has been conferred by...

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