Design Dwellings, Inc. v. Town of Windham
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STATE OF MAINE CUMBERLAND, ss SUPERIOR COURT Docket No.: AP-16-15 DESIGN DWELLINGS, INC. d/b/a DDI, CONSTRUCTION Plaintiff, v. TOWN OF WINDHAM Respondent ) ) ) ) ) ) ) ) ) ) ) and ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION STATE OFMl\iNE Cumharfand.• -Cltrk's O fb A 2· 20r16 PR 2 R.J.GRONDIN & SONS, RECEIVED Party-in-Interest This matter is before the Cour t on Plaintiffs motion for preliminary injunctive relief. For the reasons state d herein, Plaintiff s motion is denied. The Town of Windham (hereafte r the "Town"), published an advertisement inviting bids on a construction proje ct which involved the realignment and construction of approximately 800 fe et of Angler's Road, new sidewalks, associated storm water management facilities, 700 feet of roadway widening and sidewalk improvements on Route 302, and traffic signal and lane striping improvements on Route 302. The Town also invited bicls fo r work to be performed for the Portland Water District, including the extensi on of a water main and various other related construction projects. 1 Bidders interested in the projects received a so-called Notice to Bidders dated February 1, 2016, as well as a bid form and a volume of pages of information regarding the project. The Notice to Bid ders provided the process by which bids would be submitted and evaluated. Relevantly to the instant dispute, the Notice to Bidders explained that the Town res erve d the right to reject any and all bids should it be deemed in the best interest of t he Town to do so. Further the Town expressly reserved the right to evaluate the bi dder's qualifications and capability to perform, among other matrices used in evalua ti ng the bidders. The Town instructed its consulta nt, William Haskell, P.E. to review the bids and make recommendations for the awa rd. Mr. Haskell recommended to the Town Manager that the bid be awarded to Gron din. Grondin w as identified as the low bidder on the Windham portion of th e project while DDI presented the lowest bid on the Portland Water District part of the project. However, Mr. Haskell expressed several concerns regarding the DDI b id, including in relevant part that its bid was substantially lower than any of the other eight bids and that the bid did not therefore properly account for the co mpl exity of the project. Haskell expressed concern that DOI did not indicate tha t it had done any comparable projects in scope and complexity; that its experience p1 ·imarily involved new subdivision roads; that DOI had not performed traffic signal con struction work; an d that DDI had listed two projects where work had not yet beg un. By letter dated March 17, 201 G, the Town Manager wrote a letter to DDI explaining the reasons why DDI was not the successful bidder which included the following: that Grondin was the low bidd er for the Town side of the project; that 2 DDI did not have the re qu is ite quali fi cation for the proje ct because it lacked sufficient relevant exp er ien ce; that t he Town had unsati sfactory experience working with DDI; and DOI att empted to change its bid after the bid opening through an email of March 16, 201 6. The Town follo wed up with substantially more detailed analy sis of the various and sundry r ec1so ns why it conclu ded DDI was not qualifi ed for the project base d on its own exp e,·icn ce with DDI as well as info rmation regarding DDI's work performed on town projects in Win dham an d Gorham. Conclusions It is the Plaintiff s b urden to satisfy al l four of the foll owing el ements of injunctive relief: 1. That Plaintiff has a likelihood of success on the merits; 2. That Plaintiff will suffer irreparable injury if the injunction is not granted; 3. Plaintiff's injuries outweigh any harm to Defendan t; and 4. The public interest will not b e adv ersely affected by granting the injunction. Ingraham v. Univ. of Me. At Orono, 44 1 J\ .2d 691 A.2d 691, 693 (M e. 1982). Should Plaintiff fai l to demonstrate that any one of th ese criteria are met, injunctive relief shall be de nied. Tow n of Charleston v. Sch. Admin. Dist. No. 68, 2002 ME 95 , PP6-7, 798 A.2d 110 2, 1104. A. Likelihood of Success on the Me rits For analytical clarity, it appears that the relative strength of the case on the merits is almo st entirely based in proce ss; to wit, wheth er th e Town was allowed to foll ow its own bid ding and proces s ,llld , if so, whether it in fact followed its own 3 bidding process. To the extent that Pl:1i ntiffs argument invites the Court to makes its own a priori determination as to wh ether the Town awarded the bid to the construction company that is most advantageous to the Town, or whether it failed to award the project to DDI because it determined that DD! was not qualified, the Court rejects that invitation. The town enjoys broad deference in its own factual , determinations. When reviewing the decision of a municipal agency pursuant to Maine Rule of Civil Procedure 80B, the court reviews the decision "for abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record." Wyman v. Town of Phippsburg, 2009 ME 77, ,r 8, 976 A.2d 985 (internal quotation marks and citation omitted). The party seeking to vacate the municipal agency's decision bears the burden of persuasion on appeal. Bizier v. Town of Turner, 2011 ME 116, ~ 8, 32 A.3d 1048 . Guided by this standard of review, the Court is not persuaded that there is a likelihood of success on the merits of Plaintiffs petition. The interpretation of local ordinances is a question of law that the court reviews de nova. Rudolph v. Golick, 2010 ME 106, ,r 8, 8 A.3d 684. The court examines ordinances for their plain meaning and construes the terms of ordinances reasonably "in light of the purposes and objectives of the ordinance and its general structure." Id. ,r 9. Court must also give the words in the ordinance their "plain and ordinary meaning" and must not be construe the ordinance "to create absurd, inconsistent, unreasonable, or illogical results." Duffy v. Town ofBerwick, 2013 ME 105 , ,r 23, 82 A.3d 148 (internal quotation marks and citation omitted). If the meaning of an ordinance is clear on its face, the court looks no further. Rudolph, 20 l O ME 106, 4 ,r 9, 8 A.3d 684. The Court concludes that the Town's Charter and Purchasing Policy are sufficiently clear on their face and that the Town acted in accordance with them. Plaintiff argues unpersuasively th at the Town of Windham was required to comply with MDOT bidd ing in all respects as set forth in 23 M.R.S. § 4243, and that it failed to do so. The sub sidiz ed funding of the project, which at least in part comes from the MDOT, appare ntly animates pla intiffs argument. There is no recognized canon of statutory or con tractual constru ction wh ich would rende r such a benign relationship so significant as to impair the Town's authority to apply its own bidding procedures, as reflected in its Charter and Purchasing Pol icy. No t only is this analytically true based upon the lack of any controlling statute to the contrary and a relationship between th e MDOT and the Town as reflected in the MPA, but it is also in keeping with the plenary powers reserved to the small est pol iti cal subsidiary unit, otherwise known ge nerally as Hom e Rule authority. Absen t a statute to the contrary, the Town of Windham enjoys fr ee dom to contract by u tilizing procedures it regards to be in its best in terest. With t hat axiomatic conclusi on in place, that leaves Plaintiffs quasi-contractual claim, which is equally unmovi ng. Plaintiff argues that from a contractual standpoint, the Town failed to properly handle this bid. While Plaintiff r efers to discreet portio ns in the Notice to Bidders, it ignores less helpful portions of the Notice that militate against its argument. Plaintiff ap pea rs to argue that th e only language of a ny moment to the analysis is that the award will be based on the low bid. Howeve r the Notice also allows for the Town to reject an unqualifi ed low bidder an d also r etains the right to reject a bid if doing so is in the best interes t of the Town. In fact, Plaintiffs counsel 5 conceded during the no n- te stimonial hea ri ng on the motio n tha t the low bid is not the sole determinative facto r in awarding the bid. The Town na tu rally can evaluate whether the particu lar ve nd or is suitable or other wise qualifie d fo r the project. In fact, the Town analyzed info rmati on rega rd ing DD! and determ i11 ed that it was not a qualified low bidde r. Th e Court declines Plaintiff s tacit invitati on to second-guess whether the Town's deter m inat io n that DD! was not a qu alified low bidder or whether DDI quote was most advantageous to the Town. The affi davits are clear that the Town made a reasonable determination guided by the la nguage of its own Charter and Purchasing Poli cy. Moreover, the To wn's invitation of offers to be mad e for th e project is not an offer in its own right, th e acceptance of which binds the Town t o the terms of the invitation to bid. Even if tha t were so, and it decidedly is not, th e Court is not persuaded the result wo uld be any different. 8. Whether Plaintiff will suffer irreparable injury in the abs en ce of the injunction. A temporary rest rain ing order may be granted only if it "clearly appears from specific facts shown by affi davit or by the verified compl ai nt th a t immediate and irreparable injury, loss, or damage will result to the appli cant." M. R. Civ. P. 65(a); see also Town of Charleston, 200 2 ME 95, P6, 798 A.2d at 110 4; Em erson, 563 A.2d at 768 . "Proof of irreparab le inj ury is a prerequisite to the granti ng of injunctive relief. " Bar Harbor Banking & Trust Co. v. Alexander, 4 11 A. 2d 74, 79 (Me. 1 980). 6 "Irreparable injury" is defined as "injury for which there is no ad equate remedy at law." Id. Economic harm, standing alone, is inadequate to form th e basis of a claim of irrep arable injury. There is nothing in Plaintiff's affidavit or argument, which comes near to demonstrating immediate injury for which there is no a de quate remedy at law. This is a commercial construction contract "dispute," for w hi ch there is an adequate remedy at law; to wit, money damages if properly sup po rted. The fortuity that pursuing such a claim may be laborious and uncertain makes it no more dis tinguishable than any other civil action for which there is an ad equate remedy at law. The Court does not address the remaining elements of inju nctive relief, as either of the foregoing constitutes an adequate basis for denial of Plaintiff s motion. Plaintiffs motion for injunctive relief is denied. The Clerk is directed to enter this Order on the civil docket by reference pursuant to Maine Rule of Civil Procedure 79(a). Date: e, Superior Court 7
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