Ardmare Construction Co. v. Freedman

467 A.2d 674, 191 Conn. 497, 1983 Conn. LEXIS 613
Supreme Court of Connecticut·Decided November 15, 1983·No. 12124·Published·Cited by 134 cases

Opinion

Shea, J.

In a judgment rendered from the bench,1 the trial judge granted the plaintiffs request for mandamus, and ordered the commissioner of administrative services to award a contract for the repair of walls and walks at the community correctional center in Bridge[498] port to the plaintiff. The defendants2 have appealed maintaining that an order of mandamus was improper because (1) the commissioner performs a discretionary duty when awarding a public work contract; (2) the plaintiff had an adequate remedy at law; and (3) the plaintiffs bid was incomplete, requiring the commissioner to reject the bid pursuant to General Statutes § 4-137e (c).3 We do not reach any of these issues but conclude that the plaintiff lacked standing to bring this action.4

The facts are not disputed. The commissioner solicited bids for the project pursuant to General Statutes § 4-137a.5 The plaintiff and fourteen other construc[499] tion companies submitted bids on forms supplied by the department of administrative services.6 On January 12, 1983, a public bid opening was held where it was announced that the plaintiff had submitted the lowest bid.

On January 17,1983, the department of administrative services rejected the plaintiffs bid because the signature of the president, who purported to act as the agent for the company, had been impressed on the bidding form with a rubber stamp. The administrative services department had in the past maintained the practice of rejecting all bids that did not have an [500] original handwritten signature.7 According to the chief bidding officer, the department interpreted General Statutes § 4-137e (b) E8 to require handwritten signatures. He conceded, however, that the department had not promulgated any regulation concerning its interpretation of the statute, and that no bidders had been notified of the requirement that bids be signed by hand.

The commissioner eventually awarded the contract to the defendant A. Petrucci Construction Company, the next lowest bidder. The plaintiff sought a temporary restraining order against the construction company as well as the commissioner, which was granted on March 11,1983. There has been no work performed on the project since that order was issued.

I

In Perkins v. Lukens Steel Co., 310 U.S. 113, 125-30, 60 S. Ct. 869, 84 L. Ed. 1108 (1940), it was held that prospective bidders had no standing to challenge an administrative interpretation of a public contract law because the competitive bidding statutes were enacted solely for the protection of the public and conferred no enforceable rights upon those seeking to do business with the government. “Courts should not, where Congress has not done so, subject purchasing agencies of [501] Government to the delays necessarily incident to judicial scrutiny at the instance of potential sellers, which would be contrary to traditional governmental practice and would create a new concept of judicial controversies.” Id., 130. Although the delay occasioned by this litigation has been greatly curtailed by our granting a motion for an expedited appeal, a period of more than six months has elapsed since this action was brought during which needed repair work upon a state facility has been stalled and may now have to be performed under conditions different from those contemplated when bids were submitted. This court has consistently followed the view that an unsuccessful bidder has no standing to challenge the award of a public contract. Joseph Rugo, Inc. v. Henson, 148 Conn. 430, 171 A.2d 409 (1961); Austin v. Housing Authority, 143 Conn. 338, 122 A.2d 399 (1956); 10 McQuillin, Municipal Corporations (3d Ed. Rev.) § 29.77. Recently, in Spiniello Construction Co. v. Manchester, 189 Conn. 539, 456 A.2d 1199 (1983), we held that only “where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials,” does an unsuccessful bidder have standing to challenge the award. Id., 544.

A

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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.” Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966).

This court has declared that “[a] bid, even the lowest responsible one, submitted in response to an invitation [502] for bids is only an offer which, until accepted by the municipality, does not give rise to a contract between the parties.” John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 702, 448 A.2d 180 (1982), citing Joseph Rugo, Inc. v. Henson, 190 F. Sup. 281 (D. Conn. 1960); see also Spiniello Construction Co. v. Manchester, supra; Joseph Rugo, Inc. v. Henson, 148 Conn. 430, 171 A.2d 409 (1961); Austin v. Housing Authority, supra; 10 McQuillin, Municipal Corporations (3d Ed. Rev.) § 29.80. An unsuccessful bidder, therefore, has no legal or equitable right in the contract. Not unlike any other person whose offer has been rejected, the disappointed bidder has no right to judicial intervention.9 See Perkins v. Lukens Steel Co., supra, 129; Austin v. Housing Authority, supra, 349.

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Ardmare Construction Co. v. Freedman, 467 A.2d 674, 191 Conn. 497, 1983 Conn. LEXIS 613 (Colo. 1983).

467 A.2d 674 (Ardmare Construction Co. v. Freedman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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