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Landry/French Construction Co. v. Lisbon School Department

Superior Court of Maine, Cumberland

December 1, 2014

LANDRY/FRENCH CONSTRUCTION COMPANY, Plaintiff
v.
LISBON SCHOOL DEPARTMENT, LISBON SCHOOL COMMITTEE, and INHABITANTS OF THE TOWN OF LISBON, Defendants and LEDGEWOOD CONSTRUCTION, INC., Party-in-Interest

ORDER ON PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND/ OR PRELIMINARY INJUNCTION

Nancy Mills, Justice, Superior Court

Before the court is plaintiff's motion for temporary restraining order and/or preliminary injunction. Plaintiff requests the court take the following action: (1) enjoin defendants from executing the contract for the Lisbon High School- Gymnasium Renovations and Addition Project (project) to any entity other than plaintiff; (2) enjoin defendants from issuing a notice or authorization to proceed with the work on the project to any entity other than plaintiff; and (3) direct defendants to award the contract for the project to plaintiff. For the following reasons, plaintiff's motion is granted.

A. Background

In September 2014, defendant Lisbon School Department sought requests for qualifications from general contractors for the project. (French 11/12/14 Aff. ¶ 3.) Plaintiff submitted its qualifications to defendant School Department and the project architect, Scott Simons Architects (architect). (Id. ¶ 4.) Plaintiff was prequalified to bid on the project and was added to the list of approved bidders. (1415.)

Defendant School Department advertised for public bids for the project. (Id. ¶ 6; Ex. A to Petition.) The instructions to bidders required lump sum bids based on plans and specifications issued on behalf of the defendant School Department. (French 11/12/14 Aff. ¶ 7; Ex. B to Petition.) The contract documents, drawings, and specifications for the project were prepared by the architect. (Green Aff. ¶ 3.) Bids were to include a base bid on the project and bids for five alternates, which might be included in the project if funds permitted. (Id. ¶ 6.)

The project is entirely locally funded and has received no contribution from the State of Maine. (Id. ¶ 5; Messmer Aff. ¶ 2.) According to Joseph Oswald, Director of Planning, Design & Construction for the State of Maine Bureau of General Services, 5 M.R.S. § 1743-A applies to this project regardless of whether the project is funded entirely by local funds. (French 11/12/14 Aff. ¶ 14; French 11 /12/14 Aff. Ex. 1.)

On or before October 24, 2014, plaintiff submitted its bid for the project, $4, 492, 187.00, which fully complied with defendant School Department's instructions to bidders. (French 11/12/14 Aff. ¶ 8.) Plaintiff was the low qualified bidder. (Id. ¶ 9; Ex. C to Petition.) Party-in-interest, Ledgewood Construction, Inc., submitted the second lowest qualified bid, $4, 567, 918.00. (French 11/12/14 Aff. ¶ 10; Ex. C to Petition; Green Aff. Ex. A.) The difference between the base bids of plaintiff and party-in-interest is $75, 731.00. (Id.) The difference between the bids of plaintiff and party-in-interest, after consideration of the bid alternates, is $17, 136.00. (Green Aff. ¶ 7; Green Aff. Ex. A; Messmer Aff. ¶ 3.)

On October 28, after the bid opening and the day before the School Committee meeting at which the project contract would be awarded, Richard Green, Superintendent for Schools for the Lisbon School Department, and Catherine Messmer, Business Manager of the Lisbon School Department, spoke with Ryan Kanteres, Project Manager for the architect, Darrell Orr, Facilities Director with the Lisbon School Department, and David Lewis, the Owner's Representative on the project. (Messmer Aff. ¶ 4.) After speaking with Mr. Kanteres, Mr. Green "received the impression" that the architect would prefer to work with party-in-interest for a variety of reasons. (Green Aff. ¶ 8.) Specifically, Mr. Green received the following impressions: party-in-interest had a stronger portfolio of experience with school construction in Maine than did plaintiff; party-in-interest had better on-time/on-budget references for its recently completed projects; the working relationship between plaintiff and the architect had not gone smoothly on another project; party-in-interest and the architect had an excellent working relationship on past projects; and plaintiff showed an increase in project cost on alternate 5 for the project while party-in-interest showed a project savings, which Mr. Kanteres believed showed party-in-interest had a better overall understanding of the project scope than did plaintiff. (Id. ¶ 8; Messmer Aff. ¶ 4; Green Aff. Ex. A; Messmer Aff. Ex. A.) Alternate 5 concerned temporary vehicular access at the project site during construction. (French 11/17/14 Aff. ¶ 2; French 11 /17/14 Aff. Ex. 1; Messmer Aff. ¶ 4.)

Mr. Green conveyed the information and impressions he received from Mr. Kanteres to defendant School Committee at the October 29, 2014 meeting. (Green Aff. ¶ 9; Messmer Aff. ¶ 5.)[1] Defendant School Committee voted unanimously to approve the hiring of party-in-interest for the project because the difference in the lowest and second lowest bids was small compared to the overall cost of the project and because it was in the best interests of defendants not to accept the lowest bid but to hire a contractor with a better working relationship with the architect and better understanding of the project. (Green Aff. ¶¶ 10, 12; Green Aff. Ex. B; Messmer Aff. ¶ 6.)

On October 29, 2014, plaintiff was informed that defendant School Committee, on behalf of defendant School Department, voted to award the contract for the project to party-in-interest. (French 11/12/14 Aff. ¶ 12.) The next day, plaintiff protested the award of the contract and requested that defendant School Committee stay any action with regard to the award of the contract. (Id. ¶ 13; Ex. E to Petition.) Defendants School Committee and School Department did not act on plaintiff's request for a stay and rejected plaintiff's protest. (French 11/12/1/4 Aff. ¶ 15.)

On November 12, 2014, plaintiff filed its Rule 80B petition, which includes count I: Rule 80B review; count II: declaratory judgment; count III: request for injunction; count IV: promissory estoppel; and count V: breach of contract. On the same day, plaintiff filed its request for temporary restraining order and/or preliminary injunction. Defendants filed the opposition on November 14, 2014. Plaintiff filed its reply on November 17, 2014.

A telephone conference with the court and counsel was held on November 21, 2014. During the conference, counsel for party-in-interest represented it will not participate in this lawsuit. Argument on plaintiff's motion was held on November 26, 2014. Plaintiff and defendants were represented by counsel. Party-in-interest did not appear.

B. Procedure

It is not disputed that defendants' award of the project contract to party-in-interest is a final governmental agency action, that plaintiff is an aggrieved party, and, therefore, entitled to review of the defendants' action. See M.R. Civ. P. 80B; Brown v. State, Dept. of Manpower Affairs, 426 A.2d 880, 884 (Me. 1981) (award of contract allegedly in violation of statute was final agency action and plaintiff, as unsuccessful bidder, was aggrieved by agency's decision). When reviewing governmental action under M.R. Civ. P. 80B, the Superior Court reviews the operative decision of the municipality for "abuse of discretion, errors of law, or findings not supported by the ...


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