5 C. Standard of Review
Before granting a motion for a preliminary or permanent injunction, the
court must find the following have been met:
(1) that plaintiff will suffer irreparable injury if the injunction is not grant-ed;
(2) that such injury outweighs any harm which granting the injunctive relief would inflict on the defendant;
(3) that plaintiff has exhibited a likelihood of success on the merits (at most a probability; at least a substantial possibility)?
(4) that the public interest will not be adversely affected by granting the injunction.
Ingraham v. Univ. of Me. at Orono, 441 A.2d 691, 693 (Me. 1982). "Even if
likelihood of success is low, a court might consider injunctive relief based on a
very significant showing of irreparable harm." Me. Educ. Ass'n Benefits Trust v.
Cioppa, 842 F.Supp. 2d 386, 387 (D. Me. 2012).
D. Discussion
1. Irreparable Harm
Defendants do not dispute plaintiff will suffer irreparable harm if the
motion for injunctive relief is not granted. (Defs.' Mem. 4.); see Carroll F. Look
Constr. Co. v. Town of Beals, 2002 ME 128, 9I 7, 802 A.2d 994.
2. Injury to Plaintiff Outweighs Harm to Defendants
Defendants argue they "will suffer significant injury if the injunction is
granted because Defendants will not be able to start construction on the project
2 "For a permanent injunction, the criterion from Ingraham regarding the merits is more accurately expressed as 'plaintiff succeeds on the merits."' Fitzpatrick v. Town of Falmouth, 2005 ME 97, 9I 18, 879 A.2d 21.
6 as scheduled, which will result in both short term and long term delays." (Defs.'
Mem. 8.) This conclusion is not addressed or explained in the affidavits of Mr.
Green or Ms. Messmer. Plaintiff argues it "will forever lose the opportunity to
have its rights as low bidder vindicated and to perform work that it should have
been awarded as low bidder if injunctive relief is not granted." (Pl.'s Mem. 7-8.)
As noted, defendants do not dispute plaintiff will suffer irreparable harm.
Plaintiff is a qualified bidder for the project. After oral argument on
plaintiff's motion, counsel confirmed, "Landry /French and Ledgewood have
each agreed to extend the effective date of their bids for at least an additional 10
days. Accordingly, the earliest date that the bids might expire is December 8,
2014." (Crouter Email dated 11/26/14.) The court understands this to mean that
on the date the court's order on plaintiff's motion is filed, either plaintiff or
party-in-interest is prepared to proceed with the project work based on the bids
submitted. Accordingly, any delay to defendants' project is minimal while
potential injury to plaintiff is significant.
3. Likelihood of Success on the Merits
a. 5 M.R.S. § 1743-A 3 The award of this contract is governed by section 1743-A, which
provides:
Any contract for the construction, major alteration or repair of school buildings involving a total cost in excess of $250,000 . . . must be awarded by competitive bids. The school district directors, school committee, building committee or whatever agency has responsibility for the construction, major alteration or repair shall, after consultation with the
3 The parties agree this statute governs the project contract. (Pl.'s Mem. 5-7; Defs.' Mem. 1, 4-6; Pl.'s Reply Mem. 1.)
7 Director of the Bureau of General Services, seek sealed proposals. 4
5 M.R.S. § 1743-A (2013). The term "competitive bids" is not defined in the
context of this statute. Accordingly, the court is required to determine the "plain
meaning" of the undefined statutory term and may "rely on definitions provided
in dictionaries in making this determination." Apex Custom Lease Corp. v. State
Tax Assessor, 677 A.2d 530, 533 (Me. 1996). The business dictionary definition
for "competitive bidding" is as follows:
Transparent procurement method in which bids from competing contractors, suppliers, or vendors are invited by openly advertising the scope, specifications, and terms and conditions of the proposed contract as well as the criteria by which the bids will be evaluated. Competitive bidding aims at obtaining goods and services at the lowest prices by stimulating competition, and by preventing favoritism. In (1) open competitive bidding (also called open bidding), the sealed bids are opened in full view of all who may 5 wish to witness the bid opening.
BusinessDictionary.com, http:/ /www.businessdictionary.com/ definition/
competitive-bidding.html (last visited Dec. 1, 2014).
Defendants argue "there is nothing in the plain language of§ 1743-A that
requires such contracts to be awarded to the low bidder." (Defs.' Mern 5.)
Defendants rely on a statute from California that specifically requires a contract
to be awarded to the "lowest responsible bidder." Cal. Pub. Cont. Code§ 20162 6 (West 2014). But as plaintiff notes, other statutes in Maine expressly permit
4 "Competitive bids may be waived in individual cases involving unusual circumstances." 5 M.R.S. § 1743-A. There was no waiver in this case. 5 See "Advertisement for Bids," Ex. A to Petition, §1.2(B) and "Instructions to Bidders," Ex. B to the Petition, § 5.1. 6 Defendants also argue that even when a statute requires an award to the lowest responsible bidder, the bidder must be qualified to perform the contract. (Defs.' Mem.
8 consideration of "other factors" or "valid reasons" other than cost in competitive
bidding situations. (Pl.'s Reply Mem. 3 n.2.) For example, the statute governing
the contracts for student loan notes are entered "through an open competitive
bidding process" and specifically refers to the state contract statute. 20-A MRS.
§ 11407(5) (2013); see 5 M.R.S. §§ 1825-A-1825-J (2013). The statute governing a
school board's purchase of insurance is "by competitive bidding," which
includes "evaluation criteria and relative scoring weights" to be applied to the
prequalification evaluation process and the request for proposal. 20-A M.R.S. §
1001(14)(C)(1)(b) & (C)(2)(f) (2013). The statute governing contracts for
wholesale liquor activities provides that contracts are awarded by the
commissioner, who "shall choose the best value bidder in conformity with Title
5, section 1825-B, subsection 7 and shall consider as criteria for award the
information required to be provided in subsection 4, as applicable." 28-A M.R.S.
§ 90(5) (2013); see 28-A M.R.S. § 90(4)(A) & (B). The statute governing a contract
between a public facility and a contractor for construction of a facility on private
property provides the contract "shall be awarded by a system of competitive
bidding. Unless there are valid reasons to the contrary, contracts shall be
awarded to the lowest responsible bidder." 35-A M.R.S. § 712 (2013). The statute
governing a contract between a sanitary district and a contractor for construction
of facilities provides the contract "shall be awarded by a system of competitive
bidding. Unless there are valid reasons to the contrary, the contracts shall be
awarded to the lowest responsible bidder." 38 M.R.S. § 1210 (2013).
5.) There is no dispute in this case plaintiff was prequalified to bid on and perform the project contract.
9 In contrast, the statute governing the contract in this case does not include
other factors or reasons to be considered; the contract "must be awarded by
competitive bids." 5 M.R.S. § 1743-A. The Legislature understands how to
further define "competitive bids" and understands how to delineate factors to be
considered in competitive bidding situations. The Legislature, by its omission of
additional language in section 1743-A, intended the plain meaning of the term
"competitive bids" to apply. See State v. Edward C., 531 A.2d 672, 673-74 (Me.
1987) (statute provides that any person can commit gross sexual misconduct;
because other statutes specify that the perpetrator must be of a certain age, the
Legislature, by omitting a minimum age, did not intend to place an age
requirement for gross sexual misconduct).
As plaintiff also observes, because section 1743-A does not include other
factors or reasons to be considered in awarding a contract, if the low bid is not
dispositive, on what basis does defendant School Committee award the contract?
(Pl.'s Reply Mem. 4.); see State v. McCurdy, 2010 ME 137,
(scallop-fishing catch-measurement regulation so vague fishermen required to
guess at the meaning and could not determine how to conduct themselves to
comply); Kosalka v. Town of Georgetown, 2000 ME 106, <]I 15, 752 A.2d 183
(ordinance requiring all development to "conserve natural beauty" did not give
developers or the zoning board of appeals any guidance on how to interpret the 7 requirement.) Because no "evaluation criteria" were included in section 1743-A,
7 The definition of "competitive bidding" referenced above provides: "[t]ransparent procurement method in which bids from competing contractors, suppliers, or vendors are invited by openly advertising the scope, specifications, and terms and conditions of the proposed contract as well as the criteria by which the bids will be evaluated." BusinessDictionary.com http: I I www .businessdictionary.com I definition I competitivebidding.html (last visited
10 the contract "must be awarded by competitive bids," which means awarded to
the low bidder.
b. 5 M.R.S. § 1825-A
Defendants' reliance on 5 M.R.S. § 1825-A(3), a statute that, along with
nine other subsections, applies to a state contract award, is misplaced. (Defs.'
Mem. 5.); 5 M.R.S. § 1825-A (2013). The definition in section 1825-A(3) for
"competitive bidding" must be read in the context of the remaining provisions of
the statutes in that subchapter that apply to such state contracts. See, ~ 5
M.R.S. § 1825-B(1) ("The Director of the Bureau of general Services shall purchase
collectively all goods and services for the State or any department or agency of
the State in a manner that best secures the greatest possible economy consistent
with the required grade or quality of the goods or services.").
c. Instructions to Bidders
Finally, defendants argue they did exactly what the instructions to bidders
allowed them to do: hire the contractor defendants determined was in their best
interests. (Defs.' Mem. 6-7.) The instructions to bidders provide, in part:
It is the intent of the owner to award a Contract to the lowest qualified Bidder provided the Bid has been submitted in accordance with the requirements of the Bidding Documents and does not exceed the funds available. The Owner shall have the right to waive informalities and irregularities in a Bid
Dec. 1, 2014) (emphasis added). Although the statute, which includes no evaluation criteria, controls, the court notes that the Advertisement for Bids and the Instructions to Bidders do not include any criteria on which the contract will be awarded, other than the "Owner's judgment" and the "Owner's own best interests." (Ex. A to Petition; Ex. B to Petition§ 5.3.1.) The Instructions to Bidders do, however, provide, "[i]t is the intent of the Owner to award a Contract to the lowest qualified Bidder" and do specify a method to determine the low bidder. (Ex. B to Petition§§ 5.3.1; 5.3.2 ("The Owner shall have the right to accept Alternates in any order or combination, unless otherwise specifically provided in the Bidding Documents, and to determine the low bidder on the basis of the sum of the Base Bid and Alternates accepted.").)
11 received and to accept the Bid which, in the Owner's 8 judgment, is in the Owner's best interest.
(Ex. B to Petition,§ 5.3.1.) Accordingly, defendants argue, the court can interfere
with the contract award only on a showing by plaintiff of "fraud, favoritism, or
corruption." (Defs.' Mem. 6-7); Dineen v. Town of Kittery, 639 A.2d 101, 102
(Me. 1994). In Dineen, plaintiff was the low but unsuccessful bidder on a
contract to transport students to and from school. Id. at 102. The school
committee found the higher bidder satisfactory in all aspects but found serious
questions about plaintiff's "ability to perform the contract in a safe manner." Id.
The school transportation bidding statute requires the school committee to
"conserve the comfort, safety, and welfare of the students conveyed." Id. 9 (quoting 20-A M.R.S § 5401(12) (1993)).
The Law Court in Dineen found against plaintiff and determined the
school committee had the right and the responsibility to award the contract to a
reliable company. Dineen, 639 A.2d at 102. Because the school committee had
complied with the applicable statute, the court concluded that, "[a]s a general
rule, courts will interfere with a municipal body's award of a contract only if
there is fraud, favoritism, or corruption." Id.
In this case, defendants did not comply with the plain meaning of section
1743-A, the applicable statute. No showing of "fraud, favoritism, or corruption"
is required. Id.
8 To the extent the language of this section is ambiguous, the language would be construed against the drafters of the language. See Barrett v. McDonald Invs., Inc., 2005 ME 43,
12 4. Public Interest Not Adversely Affected
Defendants argue that issuing an injunction "would have the effect of
overturning a good faith decision made by the locally-elected School Committee,
an impact that is clearly adverse to the public interest." (Defs.' Mem 8.) Plaintiff
"does not question the process of appointing school board members nor is it
challenging the character of these individuals." (Pl.'s Reply Mem. 7.) The
public's interest in having defendants follow a statute enacted by the Maine
Legislature that applies to this contract far exceeds the public's interest in
ratifying a decision of a local school committee.
E. Conclusion
Plaintiff has satisfied the criteria required for injunctive relief. See
Ingraham, 441 A.2d at 693. Because the issue of security was not addressed by
the parties in the pleadings or at oral argument, the court has no basis to
determine a proper sum for the payment of "such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained .... " M.R. Civ. P. 65(c). Further, as stated, plaintiff was a
prequalified bidder and the low bidder for the project. Party-in-interest has
chosen not to participate in this lawsuit. Accordingly, the giving of security is
waived. - See- id.
The entry is
Plaintiff's Motion for Temporary Restraining Order and/ or Preliminary Injunction is GRANTED.
Defendants are PRELIMINARILY ENJOINED from the following: (1) executing the contract on the Lisbon High School Gymnasium Renovations and Addition Project to any entity other than Plaintiff
13 Landry/ French Construction Company; and (2) issuing a notice or authorization to proceed with the Lisbon High School Gymnasium Renovations and Addition Project to any entity other than Plaintiff Landry/French Construction Company.
Defendants are ORDERED to award the contract for the Project to Plaintiff Landry I French Construction Company.
Date: December 1, 2014 Nancy Mills, Justice, Superio
Plaintiff-Robert Ruesch Esq Defendants-Jerrol Grouter Esq PII Ledgewood-Mary Delano Esq