Maietta Construction, Inc. v. City of Portland
| Decision Date | 06 June 2005 |
| Docket Number | Civil Action AP-03-47 |
| Parties | MAIETTA CONSTRUCTION, INC., Plaintiff v. CITY OF PORTLAND and SHAW BROTHERS CONSTRUCTION, INC., Defendants |
| Court | Maine Superior Court |
January 29, 2004
Before this court is Plaintiff, Maietta Construction, Inc.'s appeal of Defendant, City of Portland's bid decision pursuant to M.R. Civ. P. 80B.
In April 2003, Defendant, City of Portland ("City") solicited bids for a project identified as Rehabilitation Runway 11-29 (Phase II); Runway Safety Area Upgrade; and CAT III-A Navaids and Lighting Upgrade (Phase I) ("Jetport Project"). Plaintiff, Maietta Construction, Inc. ("Maietta") and Defendant Shaw Brothers Construction, Inc. ("Shaw Brothers") submitted bids in accordance with Defendant City's requirements.
On May 20, 2003, Matthew Fitzgerald, the Purchasing Agent for Defendant City, opened the two bids, which were the only bids received for the project. The first bid was from Plaintiff Maietta and was in the amount of $6, 496, 895.00. The second bid was in the amount of $6, 986, 712.50, and was from Defendant Shaw Brothers. Subsequently, pursuant to policy the Purchasing Agent sent the bids to the Jetport engineers Deluca Hoffman. The Jetport staff reviewed the bids and advised the Defendant City Purchasing Office that the bids were almost $1, 000, 000 over budget. In addition, the Purchasing Office was also advised that Shaw Brothers had made a mathematical error on the mulch item line in their bid.
Accordingly, on May 28, 2003, the project was reduced in scope with revisions for a re-bid process to be completed between Plaintiff Maietta and Defendant Shaw Brothers. Both parties submitted new bids on the project. Plaintiff Maietta's bid totaled $5, 708, 627.50 and Defendant Shaw Brother's bid totaled $5, 527, 915.50. Consequently, Defendant Shaw Brothers was awarded the contract on June 16, 2003. Thereafter, on July 6, 2003, work on the project began.
On July 16, 2003, Plaintiff Maietta filed an Rule 80B Complaint challenging the award of the bid by Defendant City and asserting a number of independent claims. On August 26, 2003, this court stayed the independent claims, pending resolution of this Rule 80B appeal.
Plaintiff Maietta asserts that Defendant City's bid award was arbitrary and capricious. More specifically, Plaintiff Maietta argues that the motivating force behind the Defendant City's decision to require a re-bid was the determination that Defendant Shaw Brothers had made a "mathematical error." Conversely, Defendant City contends that its actions were justified because it chose to re-bid the contract because both bids were substantially over budget. (See Fitzgerald Aff. at ¶ 6.)
In order to overturn the Defendant City's bid award it is necessary for this court to find that its decision in awarding the contract to Defendant Shaw Brothers was arbitrary and capricious. Help-U-Sell, Inc. v. Maine Real Estate Comm'n, 611 A.2d 981, 984 (Me. 1992). The Law Court has Id. (citations and quotations omitted). In addition, "[w]here there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Cent. Maine Power Co. v. Waterville Urban Renewal Auth., 281 A.2d 233, 242 (Me. 1971). "As a general rule, courts will interfere with a municipal body's award of a contract only if there is fraud, favoritism, or corruption." Dineen v. Town of Kittery, 639 A.2d 101, 102 (Me. 1994).
Section 2-302(e) of the Portland City Code provides that the City Manager may waive the competitive bidding process if:
(Portland City Code § 2-302(e)(5).) In addition, section 2-305 of the Portland City Code specifically provides that the City Manager can waive "any informality or irregularity in any bid . . . and shall have the right to reject any or all bids or proposals received for whatever reason he or she deems in the best interest of the City." (Id. at § 2-305.) In fact, the invitation to bid provides: "[t]he City also reserves the right to waive any informalities in bids, to accept any bid and to reject any or all bids should it be deemed for the best interest of the City to do so." (Defendant City's Invitation To Bid at 2; R. at 6.).
Here, Defendant City decided to re-bid the project to the two original bidders. Plaintiff Maietta opines that Defendant City's decision was based on Defendant Shaw Brothers alleged "mathematical error." This court does not find this argument persuasive. Instead, this court finds that Defendant City's decision was based on the fact that both bids were substantially over budget. (See Fitzgerald Aff. at ¶¶ 6-11.) Moreover, Defendant City's decision was in accordance with the City Code and the language in the invitation to bid. Hence, this court finds that Plaintiff Maietta has failed to meet its burden, because there exists extensive evidence in the record to support Defendant City's decision.
Next, Defendant City argues that Plaintiff Maietta's Complaint is moot. (See Rule 80B Brief Of City Of Portland at 8-9.) Plaintiff Maietta, however, asserts that because it has independent claims pending this appeal falls within the collateral consequences exception to the mootness doctrine.
The Law Court has held that:
[a]n 80B appeal, like any other case, is moot "if the passage of time and the occurrence of events deprive the litigant of an ongoing stake in the controversy although the case raised a justiciable controversy at the time the complaint was filed. In reviewing for mootness we examine the record to determine if sufficient practical effects can flow from the litigation to justify the use of limited judicial resources. We have recognized three exceptions to the mootness doctrine for issues that (1) have sufficient collateral consequences; (2) are of great public concern; or (3) are capable of repetition but evade review.
Carroll F. Look Constr. Co., Inc. v. Town of Beals, 2002 ME 128, ¶ 6, 802 A.2d 994 (quotations and citations omitted). "Before we will entertain a moot appeal pursuant to the collateral consequences doctrine, the appellant must demonstrate that a decision on the merits of the appeal will have more than conjectural and insubstantial consequences in the future." Sordyl v. Sordyi 1997 ME 87, ¶ 6, 692 A.2d 1386 (quotations and citations omitted).
In the case at bar, Defendant City's attorney indicated at oral argument that the Jetport Project is almost ninety percent completed. In fact, Defendant City's attorney cited that the only remaining portion of the project to be completed is in regard to Department of Environmental Protection ("DEP") permits. Consequently, this situation has limited continuing controversial vitality. Accordingly, this court finds that sufficient practical effects do not flow from this "litigation to justify the use of limited judicial resources." Carroll F. Look Construe. Co., 2002 ME 128 at ¶ 6, 802 A.2d at 996.
WHEREFORE, this court DENIES and DISMISSES Plaintiff Maietta's appeal, pursuant to M. R. Civ. P. 80B.
Before this court is Defendants, City of Portland ("City") and Shaw Brothers Construction, Inc.'s ("Shaw Brothers") Motion to Dismiss Plaintiff, Maietta Construction, Inc.'s ("Maietta') remaining independent claims, pursuant to M.R. Civ. P. 12(b).
On July 16, 2003, Plaintiff Maietta filed a Complaint challenging the Defendant City's award of a bid to Defendant Shaw Brothers. Plaintiff Maietta's Complaint contained several counts. More specifically, Plaintiff Maietta's Complaint contained a Rule 80B appeal, as well as several independent claims. These included counts for breach of contract negligent misrepresentation, denial of due process, equal protection violations, and violations of the Maine Deceptive Trade Practices Act.
On August 26, 2003, this court issued an order staying Plaintiff Maietta's independent claims until after a hearing on the Rule 80B appeal. Subsequently, this court denied Plaintiff Maietta's Rule 80B appeal. Accordingly, on March 3, 2004, Defendant City filed a Motion to Dismiss, contending that Plaintiff Maietta's remaining independent claims were barred by the doctrine of collateral estoppel.
When reviewing the Defendant City's motion to dismiss, this court will look at the complaint in the light most favorable to the Plaintiff, taking the material allegations as admitted. See In re Wage Payment Litigation, 2000 ME 162, ¶ 3, 759 A.2d 217, 220. A motion to dismiss is properly granted "when it appears beyond a doubt that the plaintiffs are entitled to no relief under any set of facts that might be proven in support of the claim." Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996).
Defendant City argues that the independent...
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