Boston Harbor Commuter Service, Inc. v. Massachusetts Bay Transp. Authority

• Decision Date: 11 January 1999
• Docket Number: No. 97-P-1587,97-P-1587
• Citation: 46 Mass.App.Ct. 122,704 N.E.2d 197
• Parties: BOSTON HARBOR COMMUTER SERVICE, INC. v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another. 1
• Court: Appeals Court of Massachusetts

Page 197

704 N.E.2d 197

46 Mass.App.Ct. 122

BOSTON HARBOR COMMUTER SERVICE, INC. v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.¹

No. 97-P-1587.

Appeals Court of Massachusetts Suffolk.

Argued Nov. 5, 1998.

Decided Jan. 11, 1999.

Kevin F. Moloney(Roger T. Manwaring, Boston, with him) for the plaintiff.

Jonathan P. Feltner, Boston (Mary M. Logalbo with him) for Massachusetts Bay Transportation Authority.

Joel Lewin, Boston, for Harbor Cruises, LLC.

Present: KASS, GILLERMAN and BECK, JJ.

KASS, J.

In response to an invitation for bids from the Massachusetts Bay Transportation Authority (MBTA) to provide commuter boat service between Rowe's Wharf in Boston and Hewitt's Cove in Hingham, Harbor Cruises, LLC.(Harbor Cruises) offered to provide the service for five years at a price of $4,951,587.Boston Harbor Commuter Service, Inc.(Commuter Service) bid a five-year price of $10,500,000--i.e., $5,548,413 higher than the bid of Harbor Cruises.Commuter Service protested to MBTA that Harbor Cruises's spectacularly lower bid was nonresponsive and that Commuter Service was entitled to the award.MBTA rejected the protest and on June 5, 1997, awarded the contract to Harbor Cruises.On July 1, 1997, Harbor Cruises began to run the Boston-Hingham service.This appeal is from a failed attempt by Commuter Service to obtain a preliminary injunction against performance of Harbor Cruises's contract with MBTA.

We affirm the denial by a Superior Court judge of the request for a preliminary injunction.First, we come to that decision by application of the restrained standard of review under which an appellate court examines the denial or grant of preliminary injunctive relief.At the preliminary injunction stage, an appellate court will not reverse the action of the motion judge if there is a supportable legal basis for that action.Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616, 405 N.E.2d 106(1980).Westinghouse Bdcst. Co. v. New England Patriots Football Club, Inc., 10 Mass.App.Ct. 70, 75, 406 N.E.2d 399(1980).New England Patriots Football Club, Inc. v. University of Colo., 592 F.2d 1196, 1200(1st Cir.1979).This is not to say that the appellate court infallibly rubber stamps what the motion judge has done.Particularly when the record consists entirely of documentary evidence, the appellate court may draw its own conclusions, but the posture is still one of a measure of deference.Commonwealth v. Mass. CRINC, 392 Mass. 79, 87, 466 N.E.2d 792(1984).Second, we conclude that Boston Harbor's bid was responsive to MBTA's specifications and that the essence of Commuter Service's protest, upon examination, is not that Harbor Cruises failed to respond to the bid specifications, but rather that it could not perform in accordance with its response; Harbor Cruises, its rival insists, could not perform because it did not have the tools to do the job.

1.History of the litigation.Following award of the contract by MBTA to Harbor Cruises on June 5, 1997, events moved swiftly.MBTA gave Harbor Cruises a notice to proceed on June 10 and executed a contract with Harbor Cruises on June 18, by which time Commuter Service had (on June 16) logged in at the MBTA a protest of the bid award.On June 19, MBTA rejected the bid protest.Commuter Service that day appealed to MBTA's general counsel, who denied the appeal on June 23.On the very next day, Commuter Service filed its complaint with the Superior Court, asking, among other remedies, for a preliminary injunction to prevent performance of the contract between MBTA and Harbor Cruises.That contract, as noted above, was for five years, i.e., through June 30, 2002.Commuter Service had made the Boston-Hingham run during the previous five years at a price in the neighborhood of $5,000,000, a figure much resembling the winning low bid of Harbor Cruises in 1997.

With admirable dispatch, a Superior Court judge on June 30, 1997, considered and denied the motion for a preliminary injunction.In so doing, he observed that there were sharply conflicting claims about the ability of Harbor Cruises to provide ships with the speed and passenger accommodations promised in its bid response.Those facts the judge could not resolve on the basis of the hand-tailored affidavits that the contending parties submitted.On the record before him, the judge did not see indicia of arbitrary and capricious conduct by MBTA.He, thus, saw no likelihood of success for Commuter Service.Should it turn out that Harbor Cruises could not perform as it had promised, the judge observed, both the public and MBTA would know soon enough.Commuter Services was not successful in obtaining relief from a single justice of the Appeals Court under G.L. c. 231, § 118, 1st par., and took an appeal under the second paragraph of § 118.The record reflects no effort by Commuter Service to obtain a speedy trial on the merits.

At the time of argument of this case before us, Harbor Cruises had been performing the Boston-Hingham service contract for a year and one-half.With the advantage of a retrospective look, the ability of Harbor Cruises to produce the requisite equipment is not in doubt.That point came up in oral argument before us.We think that Commuter Service is right that our duty is to look at the bids as of the time they were submitted.If we determined the bid of Harbor Cruises to be materially deficient, we suppose we would be bound to order--although we reserve the point--that Harbor Cruises be enjoined from continuing performance of the contract.Cf.Amdahl Corp. v. Bureau of Sys. Policy & Planning, 26 Mass.App.Ct. 991, 996, 529 N.E.2d 1363(1988).A service contract differs from a construction contract in that construction work becomes fixed in place, the award cannot practically be undone, and the remedy of the wronged bidder is limited to the costs attendant on making...