                                                               Supreme Court

                                                               No. 2014-172-Appeal.
                                                               (NB 11-431)


   HK&S Construction Holding Corp.            :

                    v.                        :

Lynne S. Dible, in her official capacity as   :
Finance Director and Purchasing Official
    of the Town of Middletown et al.




              NOTICE: This opinion is subject to formal revision before
              publication in the Rhode Island Reporter. Readers are requested to
              notify the Opinion Analyst, Supreme Court of Rhode Island,
              250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                     Supreme Court

                                                                     No. 2014-172-Appeal.
                                                                     (NB 11-431)


       HK&S Construction Holding Corp.            :

                        v.                        :

    Lynne S. Dible, in her official capacity as   :
    Finance Director and Purchasing Official
        of the Town of Middletown et al.


                 Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                             OPINION

          Justice Indeglia, for the Court. This case came before the Supreme Court on the appeal

of the plaintiff, HK&S Construction Holding Corp. (HK&S or plaintiff), of a Superior Court

grant of summary judgment in favor of the defendants, Town of Middletown (town), 1 Robert J.

Rafferty (Rafferty), and Woodard & Curran, Inc. (Woodard & Curran).                  In granting the

defendants’ motion, the Superior Court rejected the plaintiff’s claim that the town wrongfully

failed to award the plaintiff a contract to construct a drainage project that had been put out to bid

and that Woodard & Curran owed it a duty. On appeal, the plaintiff argues that the Superior

Court erred in determining that the plaintiff’s bid was nonresponsive, thereby nullifying the grant

of summary judgment. This case came before the Supreme Court for oral argument on March 4,

2015, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided. After hearing the arguments of counsel and

1
  Town defendants included Lynne S. Dible (Dible), in her capacity as finance director and
purchasing official of the town, Shawn J. Brown (Brown), in his capacity as town administrator,
Warren Hall, in his capacity as town engineer, as well as Arthur S. Weber, Bruce J. Long,
Richard P. Cambra, Christopher T. Semonelli, Edward Silveira, Antone C. Viveiros, and Barbara
A. Vonvillas, in their capacities as members of the town council.


                                                  -1-
reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not

been shown. Accordingly, we shall decide the appeal at this time without further briefing or

argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                                I

                                       Facts and Travel

       On June 1, 2011, the town issued an invitation for bids on a drainage improvement

project, which involved the installation of 2,100 linear feet of drainpipe and structures with

outfalls to Easton Bay. The project called for both underground and subaqueous work, as well as

a significant amount of blasting. Providing the town with consulting services, Woodard &

Curran agreed to tabulate and evaluate the bids. The request for proposal (RFP) included a set of

instructions that detailed bid requirements. One entry, titled “Documents to be Returned With

Bid,” provided: “Failure to completely execute and submit the required documents before the

Submittal Deadline [of 10:30 A.M., July 14, 2011] may render a bid non-responsive.”

       An additional document, titled, “Bid Documents to Be Returned,” listed four documents

that “must be completed and submitted on or before the Submittal Deadline for the Bid to be

considered complete.”    Those documents were:       (1) a “Bid Form”; (2) a “Non-Collusion

Affidavit”; (3) the “Bidder’s Statement Regarding Insurance Coverage”; and (4) the “Bidder’s

Statement of Relevant Experience.” The RFP also requested additional information regarding

the subcontractor performing the subaqueous construction and blasting, as well as eight

additional items constituting the “company profile,” which, according to the RFP, the bidder

“must provide” and “shall [be] include[d] with the[ ] bid.” Those eight additional items included

documentation of: (1) company ownership; (2) location of company offices; (3) the number of

local and national employees; (4) the locations from which employees would be assigned; (5) the




                                              -2-
name, address, and phone number of the bidder’s contact for a contract resulting from their bid;

(6) a company background and history describing why it was qualified to provide the services

described; (7) a statement of the length of time the bidder has been providing the services

described; and (8) the resumes for key staff to be responsible for the performance of any contract

resulting from the bid.

       Two contractors submitted bids: HK&S and C.B. Utility Company, Inc. (C.B. Utility).

On July 14, 2011, the town held a bid meeting, at which it unsealed the bids to reveal that

plaintiff was the low bidder. The plaintiff proposed to complete the work for $1,631,125, while

C.B. Utility proposed to complete the work for $3,744,285. In his August 1, 2011 letter to the

town, Rafferty, technical leader of Woodard & Curran, noted that plaintiff’s bid failed to include

the company profile and subcontractor identification. 2          As a result, Woodard & Curran

recommended against awarding plaintiff the project and in favor of either “negotiating” a

contract with C.B. Utility or putting the project out for rebidding.

       On August 3, 2011, the town council held a special meeting to consider the bids. Town

administrator Brown reviewed the bids with the council. After Brown and Rafferty fielded

questions, the town council acknowledged that plaintiff’s bid was “non-responsible” and “voted

unanimously to adopt the recommendation of Woodard & Curran” and award the contract to

C.B. Utility.

       On August 19, 2011, plaintiff filed a complaint against the town in Newport County

Superior Court, seeking declaratory and injunctive relief “requiring that the Town shall award

the contract to [plaintiff],” or “declaring the invitation for bids and the contract award to C.B.



2
  To the extent that the town argues that plaintiff failed to include a minimum of five references
from similar projects, a review of plaintiff’s bid appears to indicate that it did in fact provide this
information.


                                                 -3-
Utility * * * illegal, null and void * * *.” The complaint alleged that the town violated G.L.

1956 chapter 55 of title 45 as well as Chapters 33 and 33A of the Middletown Code of

Ordinances when it denied plaintiff the contract award for the project. On November 23, 2011,

plaintiff amended its complaint, alleging wrongful denial of a municipal contract award under §

45-55-5 3 and seeking compensatory damages. In addition, plaintiff added a count alleging

intentional interference with prospective contractual relations, as well as counts alleging

violations of procedural and substantive due process under both the federal and state

constitutions. 4

         Subsequently, the case was removed to the United States District Court for the District of

Rhode Island, where another amended complaint was filed. In addition to including Rafferty and

Woodard & Curran (collectively Woodard & Curran) as defendants, this amended complaint

added an equal protection claim under both the federal and state constitutions against all

3
    General Laws 1956 § 45-55-5 provides, in relevant part:

                “(a) Contracts exceeding the amount provided by § 45-55-9 shall be
       awarded by competitive bidding * * *;
                “***
                “(b) The invitation for bids shall state whether award shall be made on the
       basis of the lowest bid price or the lowest evaluated or responsive bid price. If the
       latter basis is used, the objective measurable criteria to be utilized shall be stated
       in the invitation for bids, if available.
                “***
                “(d) Bids shall be opened publicly in full view of the public at the time
       and place designated in the invitation for bids. Each bid, together with the name
       of the bidder, shall be recorded and an abstract made available for public
       inspection. Subsequent to the awarding of the bid, all documents pertinent to the
       awarding of the bid shall be made available and open to public inspection and
       retained in the bid file.
                “(e) The contract shall be awarded with reasonable promptness by written
       notice to the responsive and responsible bidder whose bid is either the lowest bid
       price, or lowest evaluated or responsive bid price.
                “(f) Correction or withdrawal of bids may be allowed only to the extent
       permitted by regulations issued by the purchasing officer.”
4
  The plaintiff amended its complaint yet again on January 5, 2012.


                                                -4-
defendants and a negligence claim against Woodard & Curran. On January 2, 2013, the town

moved for summary judgment; and, on April 22, 2013, a federal district judge entered an order

dismissing all federal constitutional claims and remanding all state claims to the Superior Court.

On April 26, 2013, plaintiff’s most recent amended complaint was remanded to the Superior

Court. 5

           Upon remand from the federal district court, the Superior Court entertained the town’s

motion for summary judgment as to plaintiff’s state law claims. In its motion, the town argued

that plaintiff’s bid did not qualify for consideration because it did not contain the required

documents and was, thus, nonresponsive. Because there was only one responsive bid, the town

averred that it was within its right to exclusively negotiate with C.B. Utility for a new price

pursuant to §§ 45-55-7 and 45-55-8. 6

           On November 4, 2013, Woodard & Curran filed a separate motion for summary

judgment in which it argued that it was not liable to plaintiff because it was acting as the agent of

a disclosed principal, the town, and plaintiff was clearly aware of this relationship. Woodard &

Curran also contended that there was no evidence of an abuse of discretion in the town’s

awarding of the contract to C.B. Utility. Finally, Woodard & Curran asserted that plaintiff’s

claim of intentional interference with contractual relations should be dismissed because no

business expectancy existed among the parties.

           In its memoranda objecting to the motions, plaintiff contended that its bid was responsive

and that the company profile and subcontractor information could have been submitted after the




5
  Woodard & Curran submitted its own answer to the amended complaint, while all remaining
defendants submitted one answer.
6
  Pursuant to § 45-55-7, a new price was negotiated with C.B. Utility for $3,269,185.


                                                  -5-
bid opening. The plaintiff insisted, then, that the town was legally obligated to evaluate and

properly determine whether plaintiff was a “responsible” bidder, but that it failed to do so.

       On January 16, 2014, defendants’ motions for summary judgment were heard by a

Superior Court justice (the hearing justice). On March 31, 2014, the hearing justice issued a

written decision, in which he determined that there were no genuine issues of material fact such

that defendants were entitled to summary judgment. The hearing justice concluded that there

was no palpable abuse of discretion in the town’s determination that plaintiff’s bid was

nonresponsive in light of the instructions given plaintiff and the materials plaintiff failed to

submit by the bid deadline. He also rejected plaintiff’s allegations of bad faith, noting that, even

if plaintiff’s account of the town’s conduct was true, it was not enough to show wrongful denial

of the contract. Further, the hearing justice noted that plaintiff failed to present evidence that

defendants engaged in any violation of the law.

       The hearing justice maintained that, notwithstanding plaintiff’s lower bid, the town

would not have been obligated to award it the contract. Citing H.V. Collins Co. v. Tarro, 696

A.2d 298, 303, 304 (R.I. 1997), he reaffirmed the principle that “an awarding authority [may]

tak[e] into account factors beyond price when selecting the ‘best’ or ‘superior’ bidder[,]” because

a company rated higher under the requested criteria, despite not placing the lowest bid, could

actually save the town money in the long run. Additionally, he rejected plaintiff’s claim of

intentional interference with contractual relations on the ground that plaintiff did not have a

business relationship with the town simply because its bid was lower than that of C.B. Utility.

       In dismissing plaintiff’s procedural and substantive due process claims, the hearing

justice noted that plaintiff was not deprived of a “life, liberty, or property interest,” and he also

stated that the town lawfully exercised its discretion when it determined that plaintiff’s bid was




                                                -6-
nonresponsive and therefore was not a bid at all. He then concluded that there were no grounds

to sustain plaintiff’s equal protection claim since its bid was nonresponsive and thus not similarly

situated to C.B. Utility’s bid. Finally, the hearing justice determined that Woodard & Curran

owed no legally cognizable duty to plaintiff, and he dismissed plaintiff’s negligence claim.

       On April 8, 2014, the hearing justice entered an order granting defendants’ motions for

summary judgment and, on that same day, entered final judgment on behalf of all defendants.

On April 18, 2014, plaintiff filed a notice of appeal of that decision to this Court.

                                                  II

                                        Standard of Review

       “[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50

(R.I. 2012)). “Examining the case from the vantage point of the trial justice who passed on the

motion for summary judgment, ‘[w]e view the evidence in the light most favorable to the

nonmoving party, and if we conclude that there are no genuine issues of material fact and that the

moving party is entitled to judgment as a matter of law[,] we will affirm the judgment.’” Id. at

406-07 (quoting Sacco, 53 A.3d at 150). “Although summary judgment is recognized as an

extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to

produce competent evidence that ‘prove[s] the existence of a disputed issue of material fact[.]’”

Id. at 407 (quoting Mutual Development Corp. v. Ward Fisher & Co. LLP, 47 A.3d 319, 323

(R.I. 2012)). “[W]here the facts suggest only one reasonable inference, the trial justice may

properly treat the question as a matter of law.” Shappy v. Downcity Capital Partners, Ltd., 973

A.2d 40, 45 (R.I. 2009) (quoting Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 77, 376

A.2d 329, 333 (1977)).




                                                -7-
                                                 III

                                            Discussion

       On appeal, plaintiff contends that the hearing justice erred in determining that plaintiff’s

bid was nonresponsive because it failed to include information regarding the company profile

and subcontractors. The plaintiff argues that the hearing justice made improper and erroneous

factual determinations that should not have been made on summary judgment. In response,

defendants argue that there is no dispute that plaintiff failed to provide the additional information

specifically requested in the RFP.      The defendants contend, then, that plaintiff’s bid was

nonresponsive and that the town was within its right to reject plaintiff’s bid.

       It is well settled that, in reviewing a public bidding process, the courts will not interfere

with the award of a state or municipal contract unless the awarding authority “acted corruptly or

in bad faith, or so unreasonably or arbitrarily as to be guilty of a palpable abuse of discretion.”

Paul Goldman, Inc. v. Burns, 109 R.I. 236, 240, 283 A.2d 673, 676 (1971); see also Gilbane

Building Co. v. Board of Trustees of State Colleges, 107 R.I. 295, 300, 267 A.2d 396, 399

(1970). “[W]hen officials in charge of awarding a public work[s] contract have acted fairly and

honestly with reasonable exercise of a sound discretion, their actions shall not be interfered with

by the courts.” Blue Cross & Blue Shield of Rhode Island v. Najarian, 865 A.2d 1074, 1081

(R.I. 2005) (quoting H.V. Collins Co., 696 A.2d at 302). This Court has recognized that “[t]he

decision of any official, board, agent, or other person appointed by the state concerning any

controversy arising under or in connection with the solicitation or award of a contract shall be

entitled to a presumption of correctness.” Id. (quoting G.L. 1956 § 37-2-51) (emphasis in

original). Finally, we have cautioned that “[t]o hold otherwise would place the Judiciary in the

position of litigating the award of every state and municipal contract and would place public




                                                -8-
officials in charge of awarding such contracts in [a] ‘legalistic straitjacket’ * * *.” H.V. Collins

Co., 696 A.2d at 305 (quoting Gilbane, 107 R.I. at 302, 267 A.2d at 400).

       Like the hearing justice, our task is to determine whether the town exercised sound

discretion when it awarded the contract for the project to C.B. Utility instead of HK&S, and

whether summary judgment is a proper mechanism for that determination. Separately, the town

and the hearing justice noted that plaintiff did not adhere to the requirements set forth in the RFP

because it failed to submit the company profile and subcontractor identification. This omission,

then, constituted a violation of the RFP, which explicitly stated that “[f]ailure to completely

execute and submit the required documents before the Submittal Deadline may render a bid non-

responsive.”

       We have previously held that “municipal contracts can properly be awarded to a bidder

‘other than the lowest bidder when the awarding authority deems it in the public interest to do

so.’” Coastal Recycling, Inc. v. Connors, 854 A.2d 711, 716 (R.I. 2004) (quoting H.V. Collins

Co., 696 A.2d at 304). In the bid process, the first hurdle to be crossed is the submittal of a

responsive bid.    Here, the RFP unambiguously required that bidders “must identify the

subcontractors * * * [by] includ[ing] with their bid, the subcontractors’ background information

and references,” and that bidders “must provide a company profile.” The town sought vital

information for a project dealing with subaqueous and underground blasting, and made it clear in

the RFP that this information was to be “include[d] with the[ ] bid.” This language, along with

the understanding of the significance of this information, was clear warning to the bidder that the

subcontractor information and company profile had to be included with the original bid.

       The plaintiff does not dispute that it failed to provide the above-mentioned documents,

but instead claims that the documents could have been submitted at a later date. This argument




                                               -9-
ignores the compulsory language accompanying the town’s requests for vital information, as

well as the notification that “[f]ailure to completely execute and submit the required documents

before the Submittal Deadline may render a bid non-responsive.” As the hearing justice noted,

“[t]he instructions do not indicate anywhere that any information at all may be submitted after

the Submittal Deadline.” Given these admonitions, there is no disputed issue of material fact

that the town acted within its sound discretion in determining that the plaintiff’s bid was

nonresponsive. As such, we conclude that there was no error in disposing of the plaintiff’s

claims against the town on summary judgment. Because we conclude that the plaintiff tripped

over the responsive bid hurdle, we need not consider the plaintiff’s claims for wrongful denial of

the contract, intentional interference with contractual relations, and violations of due process and

equal protection rights. Similarly, the plaintiff’s claim of negligence against Woodard & Curran

must also fail.

                                                    IV

                                            Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court, and the record

in this case shall be remanded to that tribunal.




                                                   - 10 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        HK&S Construction Holding Corp. v. Lynne S. Dible, in her
                      official capacity as Finance Director and Purchasing Official of the
                      Town of Middletown et al.

CASE NO:              No. 2014-172-Appeal.
                      (NB 11-431)

COURT:                Supreme Court

DATE OPINION FILED: April 7, 2015

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL:

                      For Plaintiff: Peter L. Kennedy, Esq.

                      For Defendants: Marc Desisto, Esq.
                                      Stanley F. Pupecki, Esq.
