Barletta/Aetna I-195 Wash. Bridge N. Phase 2 JV v. R.I. Dep't of Admin.

• Decision Date: 12 March 2021
• Docket Number: C.A. No. PC-2020-06551
• Court: Rhode Island Superior Court
• Parties: 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, v. CARDI CORPORATION, Intervenor

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, v. CARDI CORPORATION, Intervenor

C.A. No. PC-2020-06551

STATE OF RHODE ISLAND PROVIDENCE, SC. SUPERIOR COURT

March 12, 2021

DECISION

TAFT-CARTER, J. Before this Court for decision are several dispositive and non-dispositive motions. These motions include three dispositive motions: (1) 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 (collectively, Respondents), January 13, 2021 Motion to Dismiss Based on Mootness; (2) Respondents' Motion to Dismiss Cardi Corporation's Cross-Claim and Counterclaim for Failing to Join an Indispensable Party and/or a Motion for Judgment on the Pleadings; and (3) Barletta/Aetna I-195 Washington Bridge North Phase 2 JV, Aetna Bridge Company, and Barletta Heavy Division, Inc.'s (collectively, Petitioners) Motion to Dismiss Intervenor Cardi Corporation's Counterclaims as Directed Against Petitioners. Also before the Court are several non-dispositive motions: (1) Intervenor/Defendant Cardi Corporation's (Cardi) December 3, 2020 Motion for Protective Order; (2) Cardi's December 31, 2020 Motion to Compel, Motion to Enjoin Further Procurement Proceedings, and Motion to Extend the Time to Answer or Otherwise Respond to the Petition; (3) Cardi's January 19, 2021 Motion to Compel; (4) Petitioners' December 14, 2020 Motion to Compel Intervenor/Defendant Cardi Corporation's Responses to Petitioners' Request for Production of Documents and Interrogatories and Motion to Strike Cardi's Objections Thereto; and (5) Petitioners' Motion to Vacate the Court's Scheduling Order. The Court heard these motions via WebEx on February 9, 2021. Jurisdiction is pursuant to Rules 11, 12(b)(1), 12(b)(7), and 12(c) of the Superior Court Rules of Civil Procedure and G.L. 1956 § 9-30-11.

IFacts and Travel

This controversy arises out of a public bidding contract sought by the Respondents for a construction project relating to the I-195 Washington Bridge.¹ In December 2016, the Respondents issued a request for proposal (RFP) as to Phase 1 of the I-195 Washington North project, which was awarded to Cardi. (Petition for Declaratory Judgment, Injunctive Relief andWrit of Mandamus (Petition) ¶¶ 11-12.) Cardi completed work under Phase 1 of the project until RIDOT cancelled or terminated the contract for the Phase 1 RFP. Id. ¶ 13.

On April 10, 2020, the Rhode Island Division of Purchases, on behalf of RIDOT, issued RFP # 76033776 for Phase 2 of the Washington Bridge North project (Phase 2 RFP). Id. ¶ 14. The Phase 2 RFP stated that 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." Id. ¶ 16. Section 3.1 of Part 1 of the Phase 2 RFP set forth a list of improvements to be completed as part of the Phase 2 project, including, inter alia, the "installation of link slabs." Id. ¶ 17. Additionally, the Phase 2 RFP noted that "Phase 1 of the project was the recently completed partial rehabilitation of the substructure of the bridge," but that "only a portion of the work depicted in the 2016 contract documents was completed during the Washington North Phase 1 project." Id. ¶¶ 16, 18.

In response to the Phase 2 RFP, three bidders submitted questions, including Petitioners, who requested clarification regarding the scope of work completed under Phase 1. Id. ¶ 19. According to Petitioners, the Respondents' answers to these questions contained incorrect information. Id. ¶ 21. Bidders also attended a site inspection for the project, where it "became evident" that "certain link slabs may have been replaced during the Phase 1 RFP," but it was not clear how many slabs were impacted. Id. ¶¶ 22-23. Petitioners submitted a timely bid with the required technical proposal and sealed price proposal. Id. ¶¶ 28-29. This bid relied upon the "State's representations that the majority of the work associated with the replacement of the link slabs had to be performed under the Phase 2 RFP." Id. ¶ 25.

On August 17, 2020, RIDOT issued an Apparent Best Value determination for the Phase 2 RFP, which report deemed Cardi to have the highest final score of the three bidders;consequently, Respondents tentatively selected Cardi for the project. Id. ¶¶ 50-54. Ten days later, Petitioners submitted a bid protest after learning that Cardi's price proposal was significantly less than Petitioners' proposal. Id. ¶ 56. Petitioners asserted in the bid protest that Cardi had a "substantial and unfair competitive advantage" based on its knowledge of the scope of the work performed under the Phase 1 RFP. Id. Respondents' Determination in response to the bid protest revealed that Cardi had not included construction of any link slabs in its proposal. Id. ¶ 60. This action followed.

On September 17, 2020, Petitioners filed a three-count Petition against the Respondents requesting declaratory and injunctive relief. Id. at 14-19. By agreement of the parties, Cardi entered the action as an Intervenor/Respondent. See Consent Order, Dec. 24, 2020. Respondents and Cardi filed Motions to Dismiss the action, which were subsequently denied by this Court on December 21 and December 22, 2020, respectively.

Immediately following those decisions, the course of this litigation changed significantly. On December 23, 2020, the Federal Highway Administration (FHWA) denied concurrence with the State's tentative award of the Phase 2 RFP to Cardi.² See Ex. B to Pet'rs' Mot. to Amend Compl. (Mot. to Am.). By letter, the FHWA noted that the basis for its decision was that Cardi was "non-responsive according to the terms of the RFP." Id. On December 31, 2020, RIDOT rescinded its tentative selection of the project to Cardi and cancelled the solicitation in its entirety. See Ex. C to Pet'rs' Mot. to Am. Cardi filed a bid protest challenging the Respondents' decision to cancel the solicitation, which protest was denied on February 17, 2021. See Cross-Claim andCounterclaim of Intervenor/Def. Cardi Corporation (Cardi Counterclaim) ¶ 85; Ex. B to Resp'ts' Suppl. Mem. Obj. to Pet'rs' Mot. to Am. Compl. at 7.

Following FHWA's decision of nonconcurrence, the parties filed several dispositive and non-dispositive motions. Notably, on January 13, 2021, Respondents filed a Motion to Dismiss Based on Mootness. The same day, Cardi filed a seven-count Crossclaim and Counterclaim seeking damages in addition to declaratory and injunctive relief. See generally Cardi Counterclaim. Both Respondents and Petitioners have moved to dismiss those claims.

On January 15, 2021, Petitioners filed a Motion to Amend the Complaint in light of the FHWA's issuance of nonconcurrence and events following therein. More specifically, Petitioners sought leave to amend the Petition to request declarations that: (1) cancellation of the solicitation was void and in violation of 23 C.F.R. § 635.114(h) and G.L. 1956 § 37-2-53; (2) the State's "failure to engage in Competitive Negotiations" with Petitioners violates the Purchasing Act, Procurement Regulations, and the RFP; (3) Cardi is a non-responsive bidder, has a conflict of interest, and an unfair competitive advantage, and is therefore precluded from engaging in Competitive Negotiations with the State; and (4) that the State is required to engage in Competitive Negotiations with Petitioners regarding the Phase 2 RFP. See Ex. A to Pet'rs' Mot. to Am. (Proposed Am. Pet.) at 24. Additionally, Petitioners' proposed First Amended Petition for Declaratory Judgment, Injunctive Relief and Writ of Mandamus requested that the Court issue injunctive relief voiding the cancellation of the solicitation and requiring the State to "proceed with a formal award of the Phase 2 RFP. . . by engaging in Competitive Negotiations with [Petitioners] and exclude Cardi from such negotiations[.]" Id. at 26. Last, Petitioners sought to amend their request for a writ of mandamus which would similarly compel the State to void cancellation of thesolicitation and require it to engage in Competitive Negotiations with Petitioners. Id. at 28. Both the Respondents and Cardi objected to Petitioners' Motion to Amend.

In addition to the Motions to Dismiss, several other non-dispositive motions remain pending before the Court, primarily concerning discovery. These motions include: (1) Cardi's December 3, 2020 Motion for Protective Order; (2) Cardi's December 31, 2020 Motion to Compel, Motion to Enjoin Further Procurement Proceedings, and Motion to Extend the Time to Answer or Otherwise Respond to the Petition; (3) Cardi's January 19, 2021 Motion to Compel; (4) Petitioners' December 14, 2020 Motion to Compel Intervenor/Defendant Cardi Corporation's Responses to Petitioners' Request for Production of Documents and Interrogatories and Motion to Strike Cardi's Objections Thereto; and (5) Petitioners' January 4, 2021 Motion to Vacate the Court's Scheduling Order.

Respondents submitted additional materials to the Court in an email dated February 18, 2021. Cardi objected to the email submissions and requested the right to supplement the record. The Court granted Cardi's request. Respondents filed Supplemental Memoranda relating to two of its Objections—Respondents' Objection to Petitioners' Motion to Amend and Respondents' Objection to Cardi's Motion to Compel, Enjoin, and Extend Time—and one of its dispositive motions—Respondents' Motion to...