Cullen v. Town of Lincoln

• Docket Number: C. A. PC-2021-00314
• Decision Date: 20 January 2022
• Parties: JOHN J. CULLEN; and BARBARA T. CULLEN, Plaintiffs, v. TOWN OF LINCOLN, Defendant.
• Court: Rhode Island Superior Court

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JOHN J. CULLEN; and BARBARA T. CULLEN, Plaintiffs, v. TOWN OF LINCOLN, Defendant.

C. A. No. PC-2021-00314

Superior Court of Rhode Island, Providence

January 20, 2022

For Plaintiffs: Timothy K. Baldwin, Esq.

For Defendant: Anthony DeSisto, Esq.

DECISION

STERN J.

Before this Court are Plaintiffs John and Barbara Cullen's and Defendant Town of Lincoln's Cross-Motions for Summary Judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. Both parties filed timely objections. Jurisdiction is pursuant to Rule 56 of the Superior Court Rules of Civil Procedure.

I Facts and Travel

Plaintiffs John J. Cullen and Barbara T. Cullen (the "Cullens") are residents of Lincoln, Rhode Island. (Agreed Statement of Facts ¶ 1.) Defendant Town of Lincoln (the "Town") is a municipal corporation organized under the laws of Rhode Island. Id. ¶ 2. Pursuant to this Court's September 8, 2021 Amended Scheduling Order, the parties have prepared and submitted an Agreed Statement of Facts for purposes of the parties' Cross-Motions for Summary Judgment.^[1] (Am. Scheduling Order ¶ 1, Sept. 8, 2021 (Stern, J.); Agreed Statement of Facts 1.)

This dispute arises out of a municipal school construction project for the Town's High School (Lincoln High School Project). See Agreed Statement of Facts 2. Municipal school construction is governed by a complex set of Rhode Island statutes and regulations. Id. ¶ 3. Specifically, Rhode Island law authorizes the Rhode Island Department of Education (RIDE) to promulgate rules and regulations for school construction, set the school construction aid funding ratio and amounts of aid, authorize bonds to create available funds, and set rules for reimbursement. Id. The State of Rhode Island through RIDE, has the ability to provide significant financial assistance to municipalities engaged in school construction projects. Id. ¶ 5. Importantly, the Town received financial assistance from the State of Rhode Island for the Lincoln High School Project presently in question. Id. ¶ 6.

To assist in navigating the process for receiving state funding for school construction projects, RIDE published guidance that divided these projects into four distinct phases for municipalities engaged in such projects seeking state funding. Id. ¶ 7. In Phase I, municipalities must demonstrate the need for a new school, along with demographic projections and anticipated educational programs at the new school, and submit an application to RIDE which includes, among other things, a list of the school committee members and an asset protection plan. Id. ¶ 7(a).

Once RIDE issues a "Stage I" preliminary approval, under Phase II, "the school committee [will then] submit[] a Stage II application[.]" Id. ¶ 7(b). The Stage II application includes: "an architectural feasibility study, schematic design plans, a design and construction cost projection, and a financing and site purchase plan." Id. If RIDE approves the school committee's Stage II application, RIDE will enter into a "Memorandum of Agreement with the school committee that sets the budget for the project, and a requirement that the school committee must secure local approval for school funding within six months." Id.

If RIDE approves the school committee's Stage II application, then, under Phase III, the school committee will undertake a design review for projects over $500, 000 which includes, among other things, detailed architectural designs, financial management, and other professional services. Id. ¶ 7(c). At this stage, all aspects of the new school are "designed down to each individual component and room-starting with a schematic design review . . . then a design development review (to further develop the project design), and concluding with a construction documents review that includes the actual construction drawings." Id. Once RIDE approves the construction documents, the design for the new school is ready for construction. Id. Finally, Phase IV involves obtaining approval for State funding from the State's Capital Fund or School Housing Aid reimbursement, followed by school construction. Id. ¶ 7(d).

Pursuant to the Rhode Island Municipal Contracts Act (Municipal Contracts Act), "contracts over $10, 000 must be awarded by competitive bidding," unless the contract is for professional engineering or architectural services pursuant to G.L. 1956 § 45-55-8.1, and is determined in writing by the town that competitive bidding is not practicable. Id. ¶ 8; see § 45-55-5. If the contract is for architectural and engineering services, towns are required to follow the "qualification-based selection process" set forth in § 45-55-8.1. Agreed Statement of Facts ¶ 9; see § 45-55-8.1.

On June 12, 2015, the Town released a Request for Proposals (RFP) for the Lincoln High School Project Stage I application to RIDE.^[2] (Agreed Statement of Facts ¶ 10; Agreed Statement of Facts Ex. 2.) The Town's RFP made clear that the Town did not expect the cost of the Lincoln High School Project Stage I to be "more than $40, 000[.]" (Agreed Statement of Facts ¶ 11; Agreed Statement of Facts Ex. 2, at Addendum 1, 2.) The Town received two bids in connection with Stage I services and ultimately selected Symmes Maini & McKee Associates (SMMA) to perform the Stage I services for $40, 000 (the "Stage I Contract").^[3] (Agreed Statement of Facts ¶¶ 12-13; Agreed Statement of Facts Ex. 4, at 7.) Consequently, because the Stage I Contract totaled $40, 000, the Town received financial assistance from the State of Rhode Island for the Lincoln High School Project. (Agreed Statement of Facts ¶ 6.)

After the Lincoln High School Project Stage I services were completed, the Town and SMMA began discussions for a contract to submit a Stage II application to RIDE (the "Stage II Contract"). Id. ¶ 16. Although the Stage I Contract was for Stage I services only, the Town described the Stage II Contract as an "addenda" to the Stage I Contract. Id. ¶ 17.^[4] Ultimately, the Town and SMMA entered into the Stage II Contract in August 2016.^[5] (Agreed Statement of Facts Ex. 6.)

After RIDE approved Stage II of the Lincoln High School Project, the Town and SMMA began discussions for a contract for the Lincoln High School Project Stage III (the "Stage III Contract"). (Agreed Statement of Facts ¶ 21.) Importantly, the Town did not issue an RFP for Stage III services, engage in any competitive bidding process or a qualification-based selection process, nor identify any architectural or engineering firms other than SMMA for this submission. Id. ¶ 22. SMMA submitted a $4.25 million proposal for Stage III services and labeled this proposal as a "continuation" of the Town's Stage I Contract with SMMA. Id. ¶ 23. Ultimately, the Town's School Building Committee approved SMMA's proposal for Stage III services on October 28, 2017, and the Town and SMMA entered into the Stage III Contract in November 2017.^[6] Id. ¶¶ 25, 27; Agreed Statement of Facts Exs. 7-8.

As evident from the foregoing, the Town did not publicly announce the availability of the Lincoln High School Project's Stages II and III Contracts, nor did the Town invite firms to compete for the Stage II and Stage III services. (Agreed Statement of Facts ¶ 28.) The Town also did not release an RFP for the Lincoln High School Project's Stage III services, adhere to the Rhode Island Municipal Contracts Act "qualification-based selection process" for Stage III, or identify any architectural or engineering firms other than SMMA for the Stage III submission. Id. ¶ 22.

In fact, on May 21, 2018, Peter Skwirz, an attorney for the Town, confirmed that there were no competitive bidding documents for the Town's Stage III submission to RIDE and explained that under "chapter 55 of title 45, supplemental agreements and contract extensions are included within the original bid contract and do not require rebidding. Because the original contract . . . was competitively bid pursuant to the statute, the contract extension of an existing contract did not require further competitive bidding."^[7] Id. ¶ 29.

On May 14, 2019, the Cullens sent a letter to the Rhode Island Attorney General requesting a meeting regarding Stage III of the Lincoln High School Project. Id. ¶ 37. Following an investigation by the Attorney General's office, the Attorney General sent the Cullens a letter on September 22, 2020, explaining that the Town's procurement for the Lincoln High School Project did not rise "to the level of corruption, bad faith or a palpable abuse of discretion on the part of procurement officials" and therefore, the Attorney General would not be taking any further action.^[8] (Agreed Statement of Facts ¶ 39; Agreed Statement of Facts Ex. 9, at 1-2.) As of January 2020, the Lincoln High School Project was approximately $1.5 to $2 million overbudget, and Lincoln taxpayers were asked to approve $1.03 million to cover the cost overruns. (Agreed Statement of Facts ¶ 36.)

The Cullens responded by filing the instant lawsuit seeking "to rectify the lack of public competition for architectural and engineering design services for the Town of Lincoln's High School construction project." (Compl. 1.) The parties have now submitted Cross-Motions for Summary Judgment. See Def.'s Mot. for Summ. J. 1; Pls.' Mot. for Summ. J. 1. The Court's Decision follows.

II Standard of Review

Summary judgment is an extreme remedy and should be "granted only when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as [a] matter of law.'" Plunkett v State, 869 A.2d 1185, 1187 (R.I. 2005) (quoting Wright v. Zielinski, 824 A.2d 494, 497 (...