Elec. Contractors, Inc. v. Dep't of Educ., No. 18525.

• Court: Supreme Court of Connecticut
• Writing for the Court: ZARELLA
• Citation: 2012 Trade Cases P 77768,35 A.3d 188,192 L.R.R.M. (BNA) 2954,303 Conn. 402
• Parties: ELECTRICAL CONTRACTORS, INC., et al. v. DEPARTMENT OF EDUCATION et al.
• Docket Number: No. 18525.
• Decision Date: 17 January 2012

192 L.R.R.M. (BNA) 2954
2012-1 Trade Cases P 77,768
303 Conn. 402
35 A.3d 188

ELECTRICAL CONTRACTORS, INC., et al.
v.
DEPARTMENT OF EDUCATION et al.

No. 18525.

Supreme Court of Connecticut.

Argued Sept. 6, 2011.Decided Jan. 17, 2012.

[35 A.3d 193]

Steven B. Kaplan, with whom was Paul R. Fitzgerald, Hartford, for the appellants (plaintiffs).

Darren P. Cunningham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellees (named defendant et al.).

Frank G. Usseglio, Hartford, and John T. Fussell, East Hartford, with whom were Karen K. Clark and Glenn A. Duhl, and, on the brief, Robert M. Cheverie and Gary F. Sheldon, Hartford, for the appellees (defendant city of Hartford et al.).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

ZARELLA, J.

[303 Conn. 405] The principal issue in this appeal is whether the nonunion plaintiffs, Electrical Contractors, Inc. (ECI), and six of its individual employees,¹ have standing to challenge prebid specifications requiring the successful bidder on two state financed

[35 A.3d 194]

school construction projects ² in the city of Hartford to perform all project work with union labor under the terms of a project labor agreement (PLA). The plaintiffs claim that the trial court incorrectly concluded that (1) ECI lacked standing, pursuant to this court's decision in Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 740 A.2d 813 (1999) ( Associated Builders & Contractors), to challenge the PLA requirement and the rejection of its lowest, responsible, qualified bids on the two construction projects after ECI refused to sign and be bound by the mandatory PLA, (2) the PLA requirement did not violate the applicable competitive bidding laws, General Statutes §§ 4a–100, 4b–91, 4b–92 [303 Conn. 406] and 10–287, (3) the individual plaintiffs did not have standing under article first, §§ 1, 4, 5 and 20, of the Connecticut constitution to challenge the PLA requirement, and (4) ECI did not have standing to prosecute its claim that the PLA requirement was in violation of the Connecticut Antitrust Act, General Statutes § 35–24 et seq. The defendants, the city of Hartford (city), Morganti Group, Inc., Downes Construction Company, LLC, Custom Electric, Inc.,³ the state department of education (department), and Mark K. McQuillan, the commissioner of education,⁴ who allegedly approved the challenged contracts on behalf of the state,⁵ disagree with the plaintiffs and raise two alternative grounds for affirmance, namely, that the plaintiffs' claims are (1) preempted by federal labor law, and (2) barred by the doctrine of sovereign immunity. ⁶ We affirm in part and reverse in part the judgment of the trial court.

I FACTS

The following relevant facts are set forth in the trial court's memorandum of decision. “A PLA is a prehire collective bargaining agreement which requires all contractors and subcontractors on a construction project [303 Conn. 407] to comply with the terms of all existing collective bargaining agreements with unions representing workers from the trades performing work on the project and requires all project workers to join the unions for their respective trades, to remain members in good standing of such unions, and not to strike while the project is under construction.⁷

[35 A.3d 195]

The PLAs ... at issue share these essential features, although they set aside 15 percent of all work on each project for minority-owned ... and/or women-owned ... business enterprises, which are not bound by the PLAs.⁸ ...

[303 Conn. 408] “In their complaint, the plaintiffs [sought] several types of declaratory, injunctive and other extraordinary relief ⁹ in

[35 A.3d 196]

connection with the projects ... at issue based upon the common underlying claim that the city's imposition of mandatory PLAs upon successful bidders on those and similar state-financed construction projects is illegal....

[303 Conn. 409] “After this case was filed in [the trial] court, the defendants successfully petitioned for its removal to the United States District Court [for the District of Connecticut] so that [the] federal constitutional claims ... could be adjudicated in a federal forum. Upon its removal, the case was assigned to [Judge] Stefan Underhill, before whom the parties presented oral arguments after submitting extensive briefs on comprehensive motions to dismiss ¹⁰ all counts of the plaintiffs' then operative first amended complaint.¹¹ At the conclusion of oral argument, Judge Underhill dismissed all of the plaintiffs' federal claims, declined to exercise jurisdiction over their pendent state claims, and ordered that the case be remanded to [the trial] court for further proceedings. Left undecided in this process, with the express intention that [the trial] court should decide them on remand, were the defendants' jurisdictional challenges to the plaintiffs' state law claims.

“After the case was remanded, the [trial] court met with counsel to establish a procedure for identifying those jurisdictional challenges that remained to be adjudicated, claiming such challenges for a hearing, and filing supplemental briefs thereon. Upon receipt of the parties' claims for hearing and supplemental briefs, which incorporated by reference all relevant portions of the briefs they had previously filed in federal court, the [trial] court heard oral argument on all challenges [303 Conn. 410] claimed for hearing on July 3, 2009. For the purpose of that hearing, the parties agreed that all documents and materials submitted by any party could be considered parts of the evidentiary record upon which to decide the contested issues presented on the pending motions.

“The defendants, in their motions [to dismiss] ... challenged [the trial] court's subject matter jurisdiction over the plaintiffs' state law claims on three separate

[35 A.3d 197]

grounds. First, they claim[ed] that the plaintiffs lack [ed] standing to bring a bid protest under settled principles of Connecticut common law, as most recently applied ... in [ Associated Builders & Contractors ].... Second, the state defendants argue[d] that the plaintiffs' claims against them [were] barred by the doctrine of sovereign immunity because such claims do not rest upon allegations which, if proved, would establish that their conduct in this case was clearly in excess of their statutory authority. Third, all defendants join[ed] in claiming that the plaintiffs' general challenge to the use of PLAs in state funded municipal school construction projects [was] preempted by federal labor law, which has long approved of their use [in] public construction projects.”

Following the hearing, the trial court agreed with the defendants that the plaintiffs lacked standing and that the action should be dismissed for lack of subject matter jurisdiction. In its memorandum of decision, the court concluded that ECI had failed to make a colorable claim that the PLA requirement effectuated fraud, corruption, favoritism or otherwise undermined the objective or integrity of the competitive bidding process under the common-law principles articulated in Associated Builders & Contractors. The court also concluded that the individual plaintiffs did not have standing because they were not prequalified electrical contractors and had “neither bid on either project nor could have done so....” Accordingly, the trial court granted the defendants'[303 Conn. 411] motions to dismiss without reaching or deciding the alternative grounds advanced in support of their motions. Thereafter, the plaintiffs appealed to the Appellate Court from the trial court's judgment, and the appeal was transferred to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–2.

II STANDARD OF REVIEW

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue.... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests....

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected[303 Conn. 412] interest ... has been adversely affected.” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 112, 967 A.2d 495 (2009).

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In the context of competitive bidding, it is well established that an unsuccessful bidder on a state or municipal contract has no contractual right under the common law that would afford standing to challenge the award of a contract. Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 178, 740 A.2d 813. “[A] bid, even the lowest responsible one, submitted in response to an invitation for bids is only an offer which, until accepted by the municipality,...