DDI has also brought a claim for promissory estoppel. Maine has adopted the
definition of promissory estoppel found in the Restatement:
2 - · -- -- - ... .. -·- ·~ - - - ---- ·-···-· -- -. A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
See Panasonic Communications & Sys. Co. v. State ofMaine, 1997 ME 43, ,r 17, 691
A.2d 190; RESTATEMENT (SECOND) OF CONTRACTS§ 90(1). DDI alleges that
Maine Law, the Charter of the Town of Windham, the Notice to Bidders, and special
bid documents required that Windham award the Project to the lowest bidder.
Defendant argues that none of the cited documents binds Windham in contract or
constitute a promise on Windham's behalf.
DDI cites to 23 M.R.S. § 4243, which governs the award of contracts by the
MDOT, for support. "The department has the right to reject any bids and to advertise
for new bids if, in the department's opinion, doing so is in the best interest of the
department; otherwise, the department shall award the contract to the responsible
bidder submitting the lowest bid." 23 M.R.S. § 4243. Section 4243 does not set out I I
contractual terms binding a municipality and a bidder. Rather, section 4243 sets out
the process by which the MDOT will award contracts, granting MDOT considerable
discretion to "reject any bids ... if, in the department's opinion, doing so is in the best
interest of the department." The Court does not find that section 4243 create an
enforceable promise or agreement.
DDI alleges that the terms of the Charter of the Town of Windham creates an
agreement or promise obligating Windham to bidders on contracts. According to the
section of the Charter of the Town of Windham cited by DDI: "The Town Manager
shall act as purchasing agent for all departments of the Town and provide for
3 - , ...... ----- ----·--. · --··--- - - - - · -
cooperative purchasing arrangements where feasible, and shall submit to
competitive bids any transaction in excess of the amount set by order of the
Council." Charter of the Town of Windham, Art III,§ 2(A) (9). Similarly to 23 M.R.S. §
4243, the language found in the Charter of the Town of Windham does not amount
to an agreement or promise. The language of the Charter merely holds that the
Town Manager will seek competitive bids for certain transactions. The language
does not require the acceptance of the lowest bid, nor does it create contractual or
equitable rights 'for those who seek to offer "competitive bids".
Finally, DDI points to the Notice to Bidders and the special bid documents as the
basis of the alleged contract and promise. The Notice to Bidders states that the
"basis of the award will be low bid." Notice to Bidders, ,r 3. The special bid
documents note that the "award of the contract, if it be awarded, shall be made ... to
the lowest responsible and qualified bidder whose proposal complies with these bid
documents." Special Provisions§ 103.02. The special provisions also state that I "[t]he Town reserves the right to reject any bid if the evidence submitted by, or the
investigation of such bidder fails to satisfy the town that such bidder is properly
qualified to carry .out the obligations of the Contract and to complete the work
contemplated therein." Special Provisions§ 102.01.
It is settled law in Maine that a solicitation for bids is neither a contract nor a
promise, but merely a request for offers. "[A]n advertisement soliciting bids is not
an offer but only a request for offers that may be accepted or rejected." Carroll F.
Look Constr. Co. v. Town ofBeals, 2002 ME 128, ,r 9, 802 A.2d 994. Plaintiff
distinguishes the facts of this case from the facts presented to the court in Carroll,
4 . . - ---·-~ -- ---- ----· -- ·---- ,--- - - -·-··· - .. -·------·--- ---~- . ··-·
noting that in the current matter, "the Town's procurement process failed to follow
the Town's bid documents"..Plaintiff argues that the bid documents state that
Windham would award the Project to the lowest qualified bidder, that DDI was the
lowest bidder, and that DDI is qualified. Therefore, Plaintiff argues that Windham
has breached its agreement to the published terms and/or broken the promise to
rely upon the published terms upon which DDI reasonably relied.
The Court finds that even if this case is distinguishable from Carroll on those . ' bases, the holding in Carroll remains applicable. A request for bids does not '
demonstrate mutually assented to terms, nor does it constitute a "promise which
the promisor should reasonably expect to induce action or forbearance on the part
of the promisee". The Court finds that Plaintiff has not pled facts sufficient to make
out a claim for either promissory estoppel or breach of contract.
IV. Conclusion
The Court grants Defendant's Motion for Judgment on the Pleadings.
Date j /13 //1_ Justice, Superior Court
5 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss Docket No.: AP-16-15
) DESIGN DWELLINGS, INC. d/b/a ) DDI, CONSTRUCTION ) ) Plaintiff, ) ORDER ON PLAINTIFF'S MOTION ) FOR PRELIMINARY INJUNCTION V. ) ) TOWN OF WINDHAM ) ) Respondent ) STATEOFIWNE Cumharfand.11. Cferfc'c Ofb and APR 222016 R.J.GRONDIN & SONS,
Party-in-Interest RECEIVED This matter is before the Court on Plaintiff s motion for preliminary
injunctive relief. For the reasons stated herein, Plaintiffs motion is denied.
The Town of Windham (hereafter the "Town"), published an ad vertisement
inviting b ids on a construction project which involved the realignment and
construction of approximately 800 feet of Angler's Road, new sidewalks, associated
storm water management faciliti es, 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 bi ds for work to be performed for the Portland
Water District, including the extension of a water main a nd 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 bi d form and a volume of pages of information
regarding the project. The Notice to !3idders provided the process by which bids
would be submitted and evaluated. Relevantly to the instant dispute, the Notice to
Bidders explained that the Town resc,·ved the right to reject any and all bids should
it be deemed in the best interest of th c Town to do so. Further the Town expressly
reserved the right to evaluate the bidder's qualifications and capability to perform,
among other matrices used in evalua ting the bidders.
The Town instructed its consu I ta nt, William Haskell, P.E. to review the bids
and make recommendations for the award. Mr. Haskell recommended to the Town
Manager that the bid be awarded to Grondin. Grondin was 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 bid, including in relevant part that its bid was
substantially lower than any of the oth er eight bids and that the bid did not
therefore properly account for the corn plexity of the project. Haskell expressed
concern that DDI did not indicate that it had done any comparable projects in scope
and complexity; that its experience p rimarily involved new subdivision roads; that
DOI had not performed traffic signal construction work; and that DDI had listed two
projects where work had not yet begun.
By letter dated March 17, 201G, 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 bidder for the Town side of the project; that
2 DDI did not have the requisite quali ficati on for the project because it lacked
sufficient relevant experience; that t he Town had unsatisfactory experience working
with DDI; and DOI attempted to change its bid after the bid opening through an
email of March 16, 2016. The Town fo llowed up with substantially more detailed
analysis of the various and sundry reaso ns why it concluded DOI was not qualified
for the project based on its own experien ce with DOI as well as information
regarding DDI's work performed on town projects in Windham and Gorham.
Conclusions
It is the Plaintiffs burden to satis fy all four of the following elements of
injunctive relief:
1. That Plaintiff has a likelihood of success on the merits;
2. That Plaintiff will suffer irrepara ble injury if the injunction is not granted;
3. Plaintiffs injuries outweigh any harm to Defendant; and
4. The public interest will not be c1d versely affected by granting the injunction.
Ingraham v. Univ. ofMe. At Orono, 441 A.2 d 691 A.2d 691, 693 (Me. 1982).
Should Plaintiff fail to demonstrate that any one of these criteria ar e tnet,
injunctive relief shall be denied. Town ofCharleston v. Sch. Admin. Dist No. 68, 2002
ME 95, PP6-7, 798 A.2d 1102, 1104.
A. Likelihood of Success on the Mc rits
For analytical clarity, it appears that the relative strength of the case on the
merits is almost entirely based in pro cess; to wit, whether the Town was allowed to
follow its own bidding and process ,111d, if so, whether it in fact followed its own
3 bidding process. To the extent that Pl:iintiffs argument invites the Court to makes
its own a priori determination as to whether 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 SOB, the court reviews the decision "for abuse of discretion, errors of
law, or findings not supported by the subst::mtial evidence in the record." Wyman v. Town
of Phippsburg, 2009 ME 77, ~ 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 Plaintiff's petition.
The interpretation of local ordinances is a question of law that the court reviews
de nova. Rudolph v. Golick, 2010 ME l 06, ~ 8, 8 A.3d 684. The court examines
ordinances for their plain meaning and construes the terms of ordirnmces reasonably "in
light of the purposes and objectives of the ordinance and its general structure." Id. ~ 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 of Berwick, 2013 ME 105, ~ 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, ~ 9, 8 A.3d 684. The Court
4 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 that the Town of Windham was required to
comply with MDOT bidding in all respects as set forth in 23 M.R.S. § 4243, and that it
failed to do so. The subsidized funding of the project, which at least in part comes
from the MDOT, apparently animates plaintiffs argument. There is no recognized
canon of statutory or contractual construction which would render 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 Policy. Not only is this
analytically true based upon the lack of any controlling statute to the contrary and a
relationship between the MDOT and the Town as reflected in the MPA, but it is also
in keeping with the plenary powers reserved to the smallest political subsidiary
unit, otherwise known generally as Home Rule authority. Absent a statute to the
contrary, the Town of Windham enjoys freedom to contract by utilizing procedures
it regards to be in its best interest. With that axiomatic conclusion in place, that
leaves Plaintiffs quasi-contractual claim, which is equally unmoving.
Plaintiff argues that from a contractual standpoint, the Town failed to
properly handle this bid. While Plaintiff r efers to discreet portions in the Notice to
Bidders, it ignores less helpful portions of the Notice that militate against its
argument. Plaintiff appears to argue that the only language of any moment to the
analysis is that the award will be based on the low bid. However the Notice also
allows for the Town to reject an unqualified low bidder and also retains the right to
reject a bid if doing so is in the best interest of the Town. In fact, Plaintiffs counsel
5 conceded during the non-testimonial hearing on the motion that the low bid is not
the sole determinative factor in awarding the bid. The Town naturally can evaluate
whether the particular vendor is suitable or other wise qualified for the project. In
fact, the Town analyzed info rmation regarding DOI and determi ned that it was not a
qualified low bidder. Th e Court declines Plaintiffs tacit invitation to second-guess
whether the Town's determination that DOI was not a qualified low bidder or
whether DOI quote was most advantageous to the Town. The affi davits are clear
that the Town made a reasonable determination guided by the language of its own
Charter and Purchasing Policy.
Moreover, the Town's invitation of offers to be made for the project is not an
offer in its own right, the acceptance of which binds the Town to the terms of the
invitation to bid. Even if that were so, and it decidedly is not, the Court is not
persuaded the result would be any different.
B. Whether Plaintiff will suffer irreparable injury in the abse nce of the injunction.
A temporary restraining order may be granted only if it "clearly appears from
specific facts shown by a ffi davit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant." M. R. Civ. P. 65(a); see
also Town ofCharleston, 2002 ME 95, P6, 798 A.2d at 1104; Emerson, 563 A.2d at
768. "Proof of irreparable injury is a prerequisite to the granting of injunctive
relief." Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980).
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 the basis of a claim of
irreparable injury. There is nothing in Plaintiffs affidavit or argument, which comes
near to demonstrating immediate injury for which there is no adequate remedy at
law. This is a commercial construction contract "dispute," for which there is an
adequate remedy at law; to wit, money damages if properly supported. The fortuity
that pursuing such a claim may be laborious and uncertain makes it no more
distinguishable than any other civil action for which there is an adequate remedy at
law.
The Court does not address the remaining elements of injunctive relief, as
either of the foregoing constitutes an adequate basis for denial of Plaintiffs 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: