Maietta Constr., Inc. v. City of Portland

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

CUMBERLAND, ss. DOCKET NUMBER AP-03-47

ME A EDO soe

_MAIETTA CONSTRUCTION, INC.,

Plaintiff

ORDER

Pe EE gg eee

CITY OF PORTLAND MoUE VED

and

SHAW BROTHERS CONSTRUCTION,

INC.,

Defendants

Before this court is Plaintiff, Maietta Construction, Inc.’s appeal of Defendant,

City of Portland’s bid decision, pursuant to M. R. Civ. P. 80B.

FACTS

In April 2003, Defendant, City of Portland (“City”) solicited bids for a project

identified as Rehabilitation Runway 11-29 (Phase II); Runway Safety Area Upgrade; and

CAT IIIl-A Navaids and Lighting Upgrade (Phase I) (“Jetport Project”). Plaintiff,

Maietta Construction, Inc. (“Maietta”) and Defendant Shaw Brothers Construction, Inc.

(“Shaw Brothers”) submitted bids in accordance with Defendant City’s requirements.

On May 20, 2003, Matthew Fitzgerald, the Purchasing Agent for Defendant City,

opened the two bids, which were the only bids received for the project. The first bid

was from Plaintiff Maietta and was in the amount of $6,496,895.00. The second bid was

in the amount of $6,986,712.50, and was from Defendant Shaw Brothers. Subsequently,

pursuant to policy, the Purchasing Agent sent the bids to the Jetport engineers, Deluca

Hoffman. The Jetport staff reviewed the bids and advised the Defendant City

Purchasing Office that the bids were almost $1,000,000 over budget. In addition, the

Purchasing Office was also advised that Shaw Brothers had made a mathematical error

on the mulch item line in their bid.

Accordingly, on May 28, 2003, the project was reduced in scope with revisions

for a re-bid process to be completed between Plaintiff Maietta and Defendant Shaw

Brothers. Both parties submitted new bids on the project. Plaintiff Maietta’s bid totaled

$5,708,627.50 and Defendant Shaw Brother’s bid totaled $5,527,915.50. Consequently,

Defendant Shaw Brothers was awarded the contract on June 16, 2003. Thereafter, on

July 6, 2003, work on the project began.

On July 16, 2003, Plaintiff Maietta filed an Rule 80B Complaint challenging the

award of the bid by Defendant City and asserting a number of independent claims. On

August 26, 2003, this court stayed the independent claims, pending resolution of this

Rule 80B appeal.

DISCUSSION

A. Is The Award of The Bid Arbitrary and Capricious?

Plaintiff Maietta asserts that Defendant City’s bid award was arbitrary and

capricious. More specifically, Plaintiff Maietta argues that the motivating force behind

the Defendant City’s decision to require a re-bid was the determination that Defendant

Shaw Brothers had made a “mathematical error.” Conversely, Defendant City contends

that its actions were justified because it chose to re-bid the contract because both bids

were substantially over budget. (See Fitzgerald Aff. at J 6.)

In order to overturn the Defendant City’s bid award it is necessary for this court

to find that its decision in awarding the contract to Defendant Shaw Brothers was

arbitrary and capricious. Help-U-Sell, Inc. v. Maine Real Estate Comm'n, 611 A.2d 981,

984 (Me. 1992). The Law Court has “defined arbitrary and capricious conduct by an

administrative agency as wilful and unreasoning action, without consideration of facts

or circumstances. The burden of proof clearly rests with a party seeking to overturn an

administrative decision.” Id. (citations and quotations omitted). In addition, “[w]here

there is room for two opinions, action is not arbitrary or capricious when exercised

honestly and upon due consideration, even though it may be believed that an erroneous

conclusion has been reached.” Cent. Maine Power Co. v. Waterville Urban Renewal

Auth. 281 A.2d 233, 242 (Me. 1971). “Asa general rule, courts will interfere with a

municipal body's award of a contract only if there is fraud, favoritism, or corruption.”

Dineen v. Town of Kittery, 639 A.2d 101, 102 (Me. 1994).

Section 2-302(e) of the Portland City Code provides that the City Manager may

waive the competitive bidding process if:

[t]here has been a competitive process but no bids or proposals were

received or the city manger determines that the bids or proposal received

are unreasonable or in excess of the f[u]nds available... In such cases, he

or she may negotiate a contract if he or she determines:

a. That it is not feasible to resolicit bi[d]s or proposals again; and

b. Each qualified and responsible bidder or proposer, if any, has been

notified of the intention to negotiate with the bidders or proposer first

consecutively until a contract acceptable to the city is reached.

(Portland City Code § 2-302(e)(5).) In addition, section 2-305 of the Portland City Code

specifically provides that the City Manager can waive “any informality or irregularity

in any bid . . . and shall have the right to reject any or all bids or proposals received for

whatever reason he or she deems in the best interest of the City.” (Id. at § 2-305.) In

fact, the invitation to bid provides: “[t]he City also reserves the right to waive any

informalities in bids, to accept any bid and to reject any or all bids should it be deemed

for the best interest of the City to do so.” (Defendant City’s Invitation To Bid at 2; R. at

6.)

Here, Defendant City decided to re-bid the project to the two original bidders.

Plaintiff Maietta opines that Defendant City’s decision was based on Defendant Shaw

Brothers alleged “mathematical error.” This court does not find this argument

persuasive. Instead, this court finds that Defendant City’s decision was based on the

fact that both bids were substantially over budget. (See Fitzgerald Aff. at [{ 6-11.)

Moreover, Defendant City’s decision was in accordance with the City Code and the

language in the invitation to bid. Hence, this court finds that Plaintiff Maietta has failed

to meet its burden, because there exists extensive evidence in the record to support

Defendant City’s decision.

B. Is Plaintiff’s Complaint Moot?

Next, Defendant City argues that Plaintiff Maietta’s Complaint is moot. (See

Rule 80B Brief Of City Of Portland at 8-9.) Plaintiff Maietta, however, asserts that

because it has independent claims pending this appeal falls within the collateral

consequences exception to the mootness doctrine.

The Law Court has held that:

[aJn 80B appeal, like any other case, is moot "if the passage of time and the

occurrence of events deprive the litigant of an ongoing stake in the

controversy although the case raised a justiciable controversy at the time

the complaint was filed. In reviewing for mootness we examine the

record to determine if sufficient practical effects can flow from the

litigation to justify the use of limited judicial resources. We have

recognized three exceptions to the mootness doctrine for issues that (1)

have sufficient collateral consequences; (2) are of great public concern; or

(3) are capable of repetition but evade review.

Carroll F. Look Constr. Co., Inc. v. Town of Beals, 2002 ME 128, J 6, 802 A.2d 994

(quotations and citations omitted). “Before we will entertain a moot appeal pursuant to

the collateral consequences doctrine, the appellant must demonstrate that a decision on

the merits of the appeal will have more than conjectural and insubstantial consequences

in the future.” Sordyl v. Sordyl, 1997 ME 87, q 6, 692 A.2d 1386 (quotations and

citations omitted).

In the case at bar, Defendant City’s attorney indicated at oral argument that the

Jetport Project is almost ninety percent completed. In fact, Defendant City’s attorney

cited that the only remaining portion of the project to be completed is in regard to

Department of Environmental Protection (“DEP”) permits. Consequently, this situation

has limited continuing controversial vitality. Accordingly, this court finds that

sufficient practical effects do not flow from this “litigation to justify the use of limited

judicial resources.” Carroll F. Look Construc. Co., 2002 ME 128 at Jf 6, 802 A.2d at 996.

WHEREFORE, this court DENIES and DISMISSES Plaintiff Maietta’s appeal,

pursuant to M. R. Civ. P. 80B.

Dated: January 41, 2004

RolandA. Cole

Justices Superior Court

b

Date Filed 07-16-03 Cumberland Docket No. _4P~-03-47

County

Action ___80B Appeal

MAIETTA CONSTRUCTION, INC. CITY OF PORTLAND

SHAW BROTHERS CONSTRUCTION, INC.

VS.

Plaintiff’s Attorney Defendant’s Attorney

Timothy H. Norton, Esq./Jennifer Archer,Esq. |Michael D. Traister, Esq. (Shaw Brother

Kelly, Remmel & Zimmerman P.O. Box 9785

53 Exchange Street Portland, Maine 04104-5085

P.O. Box 597 (207) 773-5651

Portland, Maine 04112-0597

(207) 775-1020 Donna M. Katsiaficas, Esq.

City of Portland

389 Congress Street

Portland, Maine 04101-3509

Date of (207) 874-8480

Entry

2003

STATE OF MAINE - SUPERIOR COURT

CIVIL ACTION ,

CUMBERLAND, ss. DOCKET NO. AP-03-47° A

RAG? CUM 6/4/24

i {

MAIETTA CONSTRUCTION, INC.,

Plaintiff

Vv ORDER

Cu STA TE O

CITY OF PORTLAND Mberlang F MA IN

and

Jun 9 Mt

Before this court is Defendants, City of Portland (“City”) and Shaw Brothers

Construction, Inc.’s (“Shaw Brothers”). Motion to Dismiss Plaintiff, Maietta

Construction, Inc.’s (“Maietta’) remaining independent claims, pursuant to M.R. Civ. P.

12(b).

FACTS

On July 16, 2003, Plaintiff Maietta filed a Complaint challenging the Defendant ©

City’s award of a bid to Defendant Shaw Brothers. Plaintiff Maietta’s Complaint

contained several counts. More specifically, Plaintiff Maietta’s Complaint contained a

-Rule 80B appeal, as well as several independent claims. These included counts for

breach of contract, negligent misrepresentation, denial of due process, equal protection

violations, and violations of the Maine Deceptive Trade Practices Act.

On August 26, 2003, this court issued an order staying Plaintiff Maietta’s

independent claims until after a hearing on the Rule 80B appeal. Subsequently, this

court denied Plaintiff Maietta’s Rule 80B appeal. Accordingly, on March 3, 2004,

Defendant City filed a Motion to Dismiss, contending that Plaintiff Maietta’s remaining

independent claims were barred by the doctrine of collateral estoppel.

DISCUSSION

A. Standard of Review

When reviewing the Defendant City’s motion to dismiss, this court will look at

the complaint in the light most favorable to the Plaintiff, taking the material allegations

as admitted. See In re Wage Payment Litigation, 2000 ME 162, { 3, 759 A.2d 217, 220. A

motion to dismiss is properly granted “when it appears beyond a doubt that the

plaintiffs are entitled to no relief under any set of facts that might be proven in support

of the claim.” Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996).

B. Collateral Estoppel

Defendant City argues that the independent claims remaining in Plaintiff

Maietta’s Complaint are barred by the doctrine of collateral estoppel, and should be

dismissed by this court.

“The collateral estoppel prong of res judicata is focused on factual issues, not:

claims, and asks whether a party had a fair opportunity and incentive in an earlier

proceeding to present the same issue or issues it wishes to litigate again in a subsequent

proceeding.” Macomber v. Macquinn-Tweedie, 2003 ME 121, { 22, 834 A.2d 131, 139.

In addition, “[clollateral estoppel arises only if the identical issue necessarily was

determined by a prior final judgment. A party asserting collateral estoppel has the

burden of demonstrating that the specific issue was actually decided in the earlier

proceeding.” Id. at { 25 (citations and quotations omitted).

First, in order to ascertain if the doctrine of collateral estoppel bars Plaintiff

Maietta’s independent claims it is necessary for this court to determine whether or not

there exists a valid, final judgment issued in a previous action.

In the case at bar, on December 10, 2003, this court denied Plaintiff Maietta’s Rule

80B appeal, but did not direct the entry of a final judgment in that portion of the

proceedings. See MR. Civ. P. 54(b)(1). Additionally, this court notes that there does

not exist a previous action in this case, because the Rule 80B appeal is part of the same

proceeding as the independent claims. Hence, this court finds that the doctrine of

collateral estoppel is inapplicable.

Furthermore, Defendant City also contends that this court has effectively ordered

that Plaintiff Maietta is not entitled to further discovery regarding its independent

claims. This conclusion is based on language contained in this court’s order, providing

that “the discovery issue, if needed, can be explored if the Plaintiff prevails on its Rule

80B Motion.” (December 10, 2003 Order at 2.) This court finds that the intent of this

language was not to have the preclusive effect desired by Defendant City.

WHEREFORE, this court DENIES Defendants City and Shaw Brothers' Motion

to Dismiss, pursuant to M.R. Civ. P. 12(b).

Dated: June ¥, 2004

Roland A. Cole

Justice, Superior Court

COURTS ,

1 County

( 287

04112-0287

DONNA KATSTIAFICAS ESO

389 CONGRESS STREET

PORTLAND ME 04101

MICHAEL TRAISTER ESQ

PO BOX 9785

PORTLAND ME 04112

JENNIFER ARCHER ESQ

PO BOX 597

PORTLAND ME 04112

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

DOCKET NO. AP 03-47

- PAR CA fy ba ot

mas coh 2? DY (fod KA

Maietta Construction, Inc., INS FEB -2 i 3 3

Petitioner

v. ORDER

we ag

City of Portland,

Respondent

tto 7 «OS

This case comes before the Court on Defendant City of Portland’s Motion

for Summary Judgment pursuant to Maine Rule 56 of Civil Procedure.

FACTS

This dispute arose when two construction companies, Plaintiff Maietta

Construction, Inc. (Plaintiff) and Shaw Brothers Construction, Inc. (Shaw Bros.),

submitted bids for a contract with Defendant City of Portland (the City) for

construction at the Portland Jetport. Portland Purchasing Agent, Matthew

Fitzgerald opened both bids on May 20, 2003 and found a bid from Plaintiff for

$6,496,865, and a bid from Shaw Bros. for $6,986,712.50. Although the City knew

additional funds might become available for the project, both bids were

considerably higher than the $5.5 million dollars the City had budgeted. The bids

were also reviewed by Jetport engineer Michael DeLuca and operations manager

Arthur Sewall. In reviewing the Shaw Bros. bid, DeLuca, Sewall and Fitzgerald

noted what they assumed was a decimal or computational error of some

_ magnitude on Shaw Bros.’s line item price for mulch. Fitzgerald, DeLuca and

Sewall concluded that, without the error, Shaw Bros. bid might be lower.

Because of the possible error, and because both bids were well over

budget, the City decided to reduce the scope of the project, and invite both

Plaintiff and Shaw Bros. to resubmit bids on the reduced project. On May 28,

2003, those bids were opened, with Plaintiff bidding $5,708,627.50, and Shaw

Bros. bidding $5,527,915.50. Shaw Bros. was awarded the contract. Work began

on July 6, 2003, and has since been completed.

On July 16, 2003, Plaintiff filed a Rule 80B appeal of the City’s decision to

award the contract to Shaw Bros. (Count J), along with independent claims for

injunctive and declaratory relief, and tort, constitutional, and trade practices

violations (Counts II-VII). Plaintiffs independent claims were stayed pending

the outcome of the 80B appeal.

On January 29, 2004, this Court denied and dismissed Plaintiff’s 80B

appeal; the City then moved to dismiss Plaintiff's independent claims. The City’s

Motion to Dismiss was denied, and both sides conducted additional discovery.

On November 19, 2004, the City filed for summary judgment pursuant to Maine

Rule 56 of Civil Procedure on Plaintiff's independent claims for breach of

contract (Count II); negligent misrepresentation (Count III); due process (Count

IV); equal protection (Count V); deceptive trade practices (Count VI); declaratory

judgment (Count VIJ); and injunction (Count VIII).

DISCUSSION

The existence of a dispute of material fact and entry of summary judgment

are questions of law. Scott v. Androscoggin County Jail, 2004 ME 143,914, A.2d

___ (citing Botka v. S.C. Noyes & Co., 2003 ME 128, J 18, 834 A.2d 947, 952-53). On

summary judgment, the Court will consider the evidence in the light most

favorable to the party against whom judgment is sought to decide whether the

2

parties’ statements of material facts and the referenced record evidence reveal a

genuine issue of material fact, and whether the moving party is entitled to

judgment as a matter of law. Id. To survive a defendant's motion for a summary

judgment, a plaintiff must establish a prima facie case for each element of the

cause of action. Id. (citing Doyle v. Dep’t of Human Servs., 2003 ME 61, J 9, 824

A.2d 48, 52). If the plaintiff presents insufficient evidence on an essential element

of the cause of action, so that "the defendant would . . . be entitled to judgment

as a matter of law on that state of the evidence at a trial, the defendant is entitled

to a summary judgment." Id. (quotation omitted).

Count II. Breach of Contract.

Generally, “an advertisement soliciting bids is not an offer but only a

request for offers that may be accepted or rejected.” Look Constr. Co. v. Town of

Beals, 2002 ME 128, { 9, 802 A.2d 994, 997. In the absence of a statutory

requirement to accept a certain bid, bidders’ offers may be rejected . Id. atn.1

(citing RESTATEMENT (SECOND) OF CONTRACTS § 28) (finding no breach of contract

with lowest bidder when the Town expressly reserved the right to accept or

reject all bids). The Law Court has found municipalities have considerable

discretion when it comes to deciding what constitutes their “best interest” in

awarding a contract, and courts will interfere “only if there is fraud, favoritism,

or corruption.” Dineen v. Town of Kittery, 639 A.2d 101, 102 (Me. 1994).

The City argues that Plaintiff's lower bid on the first contract solicitation is

an offer, and does not create a binding agreement when the City expressly

reserved the right to reject all bids. The City also argues there can be no

acceptance by conduct of Plaintiff's bid/ offer by the City when Plaintiff did not

invite such an acceptance and City regulations expressly spell out the steps

required to generate a binding contract.

Plaintiff argues there is a disputed issue of fact concerning whether the

City accepted the Plaintiff’s offer by its conduct, first, because the City generated

an unsigned bid award document listing both Plaintiff and Shaw Bros. ‘s original

bids, and second, because the City sent some equipment for a Scan 16 System,

and other supplies to Plaintiff in error. The Plaintiff also argues there is a

disputed issue of fact concerning whether the City’s reasons for rejecting

Plaintiff's bid and inviting the parties to rebid on the scaled down project were

pretextual.

Here, itis undisputed that the City’s Invitation to Bid on the Jetport

project reserved the right for the City to accept or reject any bid, whether the

lowest bid or not.’ The City Code of Ordinances also provides that the city

manager “shall have the right to reject any or all bids or proposals received for

whatever reason he or she deems in the best interest of the city.” § 2-305. It is

also undisputed that Plaintiff, in submitting his bid, did not invite the City to

accept the offer by conduct.? Such an “acceptance” would be utterly

contradicted by the City’s conduct in rejecting both bids, reducing the project,

and inviting a second round of bids, and Plaintiff’s conduct in willingly

‘ The “Invitation to Bid” states:

The City of Portland reserves the right to accept the bid on one or more

items of a proposal, on all the items of a proposal, or on any combination

of items on a proposal. The City also reserves the right to waive any

informalities in bids, to accept any or all bids should it be deemed in the

best interest of the City to do so.

* An offer may be accepted by a party’s performance, but only if the party

making the offer invites such an acceptance by performance. RESTATEMENT

(SECOND) OF CONTRACTS § 53 (1981)(using as an example, the offering of a reward

in exchange for the return of a lost item).

f

participating in that second bid. Also, City regulations require specific steps be

taken before the City accepts the offer of one of the bidders. Under Section 2-

302(b)(1), (2) of Portland Code of Ordinances, no award of any bid can take place

until the “finance director certifies that funds are available for such

procurement,” and a contract is executed, and signed. Although the Ordinances

state a general intent “to award the bid to the lowest qualified and responsible

bidder who meets the specifications,” § 2-302(c), the that acceptance is far from

automatic, and the City is careful to reserve its right to reject any bid when it is in

the City’s interest to do so. The Ordinances allow the City, when bids are

collected but over budget, and rebidding isn’t feasible, to negotiate with one or

another bidder; however, there is no requirement that the City do so.’

Here, the parties hotly dispute the City’s motive in deciding it was in its

best interest to reject both initial bids, scale down the project, and invite Plaintiff

and Shaw Bros. to bid again. However, that dispute is not material to the issue

of whether the City accepted, and thus, entered a binding contract with the

Plaintiff at any point in the two bidding processes. Under contract law and the

express provisions of the City Code of Ordinances governing the formation of

such contracts, the City did not.

Because the existence of a binding contract is a necessary element to

Plaintiff's breach of contract claim, summary judgment should be awarded to the

City on Count II.

° Negotiations may be undertaken with the qualified and responsible proposer(s)

whose proposal(s) is determined to be most advantageous to the city,

considering the price and evaluation factors set forth in the request for proposals.

§ 2-302 (d)(4). .

(5) [If there was competitive bidding and the bids are unacceptable, the city

manager] may negotiate a contract if he or she determines: a. That it is not

feasible to resolicit bits (sic) or proposals again . . . § 2-302(e)(5)(a).

5

Count IV Due Process

Plaintiff seeks damages under 42 U.S.C. §§ 1983, 1988, and the Maine Civil

Rights Act 5 M.R.S.A. § 4682 (2004), claiming the City deprived Plaintiff of a

protected property interest without due Process of law. A “necessary predicate

for either [procedural or substantive due process claims] is a cognizable property

interest.” Look Constr. Co. v. Town of Beals, 2002 ME 128, J 11, 802 A.2d 994, 997

Citations omitted). The Law Court has expressly adopted the rule that

“disappointed bidders do not havea property interest unless the applicable law

or regulation mandated that the contracting body accept the bid and gave it no

discretion whatsoever to reject the bid. Id. at § 16, 802 A.2d at 999 (emphasis

added)(citing Kim Construction Co. v. Bd. of Trustees of the Village of Mundelein, 14

F.3d 1243, 1247 (7th Cir. 1994).

The City argues the Plaintiff's claim fails as a matter of law because

Plaintiff, as a disappointed bidder, had no property interest in the Jetport

contract once the City retained the discretion to withhold the award of that

contract under the express holding in Look Constr. Co. Plaintiff argues there isa

disputed issue of fact concerning whether the City expressly retained the

discretion to reject Plaintiff's lower initial bid, scale back the project and solicit

new bids from Plaintiff and Shaw Bros.

Here, the City’s discretion to reject Plaintiff’s bid could not be clearer. That

discretion was announced on the face of the Invitation to Bid,* and embodied in

the Ordinances at § 2-305,5 and under the many exceptions for waiving the

* See supra note 2.

5 The manager may waive any informality or irregularity in any bid or

proposal received and shall have the right to reject any or all bids or

competitive bidding process altogether at § 2-302(e)(1-8). Although the parties

actively dispute the correctness of the City’s motives when it acted within its

discretion and did not negotiate with Plaintiff, but instead scaled back the project

and solicited rebidding, there is no issue of fact about whether the City had that

discretion under the express terms of its Code of Ordinances. Because the

Ordinances do not mandate that the City accept or negotiate with the initial

lowest bidder when both bids are over budget, and the City has considerable

discretion to reject any bid, Plaintiff has no protected property interest in the

award of the contract that would subject to due process protections. Look Constr.

Co. v. Town of Beals, 2002 ME 128, J 16, 802 A.2d 994, 999. Plaintiff’s failure to

demonstrate it had a property interest in the contract it sought through the

bidding process is fatal to both its federal and state due process claims Id. at { 17;

Northrup V. Poling, 2000 ME 199, ¢ 9 n.3, 761 A.2d 872, 875 (due process rights

under the Maine Constitution are coextensive with those guaranteed by the

Fourteenth Amendment of the US. Constitution). Summary judgment should be

awarded to the City on Count IV.

Count V. Equal Protection

Equal protection under the U.S. and Maine Constitutions may be

implicated “when an action by the state results in treatment of a person different

than the treatment given similarly situated individuals.” Aucella v. Town of

Winslow, 583 A.2d 215, 216 (Me. 1990)(citation omitted). However, the unequal

application of a law “is not a denial of equal protection unless there is shown to

be an element of intentional or purposeful discrimination.” Id. An unlawful

proposals received for whatever reason he or she deems in the best

interest of the city.

§ 2-305.

intent “to favor one individual or class over another. .. may be inferred from the

totality of relevant facts.” Id. at 216-17 (citations omitted).

The State may treat similarly situated persons unequally, however, “if

there is a rational basis for the distinction that is related to a legitimate state

purpose.” Aucella v. Town of Winslow, 628 A.2d 120, 124 (Me. 1993) (affirming that

the town’s desire to acquire the valuable, commercially zoned property was a

sufficiently rational basis for its selective enforcement of tax lien foreclosures).

Plaintiff argues that there is a disputed issue of fact over whether the City

favored Shaw Bros. for the Jetport project when it found additional funding and

awarded the contract to the lower bidder in the second round of bidding, but not

the first. Plaintiff argues the fact that one of Shaw Bros. employees, Eric Barnes,

was previously employed by DeLuca/ Hoffman, project engineers, may be a

basis for the City’s favoritism toward Shaw Bros. Such favoritism, Plaintiff

argues, can also be inferred from the City’s conduct in interpreting the Shaw

Bros. mulch figure as an error, and soliciting new bids on a reduced project,

rather than negotiating with the Plaintiff. The City argues that the desire of the

City to get a lower price for the Jetport project provides a sufficient rational basis

for its actions.

Here, the factual dispute over whether Shaw Bros. made an error in its

initial bid or intentionally computed a high cost for mulch as part of its bidding

strategy, is not material to any of Plaintiff’s claims. Nor is the issue of whether

the City correctly identified Shaw Bros.’s error. The undisputed facts show the

City budgeted 5.5 million dollars for the project, and that additional funds were

not available, but were likely to be available later. The record also shows

Plaintiff’s lower initial bid was close to one million dollars over the originally

4

8

budgeted amount. The record shows that Fitzgerald, Sewall and DeLuca

believed that Shaw Bros.’s bid would be significantly lower, saving the City and

taxpayers money, if Shaw Bros.’s alleged error was corrected. Itis also

undisputed that the City did not negotiate with Shaw Bros., or permit Shaw Bros.

to correct a possible error on its initial bid, although the City had the discretion

to do either.® Instead, the two bidders were put on equal footing and allowed to

rebid a scaled back project. The undisputed record shows the City made a

decision, authorized under its ordinances, to scale back the project, thus lowering

the cost, in the face of two bids well over budget, one of which may or may not

have contained an error. Although the City found additional funding and

awarded the contract to Shaw Bros. after Shaw Bros. was over budget on the

second bid, the record shows the amount of overage in the rebid-$27,000 as

opposed to almost $1,000,000-was far from similar to the first bid. Even if the

City conceivably could have searched for and found additional funds to pay

Plaintiff the original $6,496,865 amount, it was rational of the City to decide to

contract for only the work it needed, for the least, or much less money.

Finally, nothing in the record on summary judgment suggests favoritism

can be inferred from the previous employment of Mr. Barnes by Mr. DeLuca. No

evidence is presented of any animosity toward the Plaintiff; in fact, it is

undisputed that the City had awarded contracts to the Plaintiff on more than one

occasion. Because the Plaintiff has not met his burden of providing evidence of a

discriminatory intent by the City or an irrational basis for the City’s actions,

summary judgment for the City should be granted on Count V.

° “The city manager may waive any informality or irregularity in any bid or

proposal received ... ” §2-305

Count VI. Deceptive Trade Practices

The goal of the Uniform Deceptive Trade Practices Act is “to provide

aggrieved parties an opportunity to seek injunctive relief from deceptive

practices,” J.S. McCarthy, Co. v. Brausse, 340 F.Supp.2d 54, 61 (D. Me. 2004).

Under Maine law, a person engages in deceptive trade practice when he or she

does any of the following:

A. Passes off goods or services as those of another;

B. Causes likelihood of confusion or of misunderstanding as to the source,

sponsorship, approval or certification of goods or services;

C. Causes likelihood of confusion or of misunderstanding as to affiliation,

connection or association with, or certification by, another;

D. Uses deceptive representations or designations of geographic origin in

connection with goods or services;

E. Represents that goods or services have sponsorship, approval,

characteristics, ingredients, uses, benefits or quantities that they do not have,

or that a person has a sponsorship, approval, status, affiliation or connection

that he does not have;

}

F. Represents that goods are original or new if they are deteriorated, altered,

reconditioned, reclaimed, used or secondhand;

G. Represents that goods or services are of a particular standard, quality or

grade, or that goods are of a particular style or model, if they are of another;

H. Disparages the goods, services or business of another by false or

misleading representation of fact;

I. Advertises goods or services with intent not to sell them as advertised;

J. Advertises goods or services with intent not to supply

reasonably expectable public demand, unless the advertisement discloses a

limitation of quantity;

K. Makes false or misleading statements of fact concerning the reasons for,

existence of or amounts of, price reductions; or

L. Engages in any other conduct which similarly creates a likelihood of

confusion or of misunderstanding.

10

10 M.R.S.A. § 1212 (2004). When confusion under Subsection (L) is alleged, itis

not necessary that a misleading representation be false to be actionable under

this statute. Ambrose v. N.E. Ass’n of Schools and Colleges, 252 F.3d 488, 492 n.1 (1st

Cir. 2001). However, “not just any confusion or misunderstanding will do” to

fall within the statute’s reach. Town and Country Motors v. Bill Dodge Auto. Group,

Inc., 115 F. Supp.2d 31, 33 (D. Me. 2000). Under the Principle of ejusdem generis,

“where general words follow specific words in a statutory enumeration, general

words are construed to embrace only objects similar in nature to those objects

enumerated by the preceding specific words.” New Orleans Tanker v. Dept. of

Transp., 1999 ME 67, | 7,728 A.2d 673, 675 (quotation omitted). Thus, the U.S.

District Court noted that the word “similarly” in Subsection (L) refers only to the

creation of “confusion about source or origin” of goods or services. Town and

Country Motors, 115 F. Supp.2d at 33 (finding Subsection (L) did not apply

because confusion about whether rust proofing was desirable did not create

confusion about the “source or origin” of the rust proofing services at issue).

Here, Plaintiff argues the City’s conduct creates confusion and

misunderstanding within the meaning of Subsection (L). Plaintiff maintains the

City creates confusion and misunderstanding when it declares the intent to

award contracts to the lowest bidder,” and when it fails to negotiate with the low

bidder and instead solicits rebids. The City also creates confusion and

misunderstanding when it fails to follow its own procedures by inviting parties

” Competitive bidding ... shall include, ata minimum prior public notice of the

procurement. . .; solicitation of sealed bids based on identical specifications; and

intent to award the bid to the lowest qualified and responsible bidder who meets

the specifications. § 2-302 (c),

11

to rebid without advertising generally or providing written notice’ The City

argues the City’s practices do not meet the statutory definition of “confusing and

misleading” trade practices under the Deceptive Trade Practices Act, that the

City’s statement of intent to award the contract to the low bidder was expressly

conditioned by other provisions in the Ordinances, and that the City was clear in

all communications with bidders about retaining its discretion to accept or reject

any bid.

Here, the Court is hard pressed to find that the Deceptive Trade Practices

statute applies to the practices complained of by the Plaintiff. Subsection (L)

refers to conduct that creates confusion or misunderstanding “similarly” to the

confusion and misunderstanding created when a person passes off goods or

services (A), suggests goods and services come from a certain source (B), or have

certain qualities (C)-(E) they do not, represents goods and services as new when

they are not, (F), or of a certain standard they are not, (G), disparages goods and

services of another (H), advertises goods or services without having them in

stock or selling them as advertised (Dd), or misrepresents price reductions (K).

Furthermore, it is undisputed that the City’s Code of Ordinances

expressly reserves to the City the option to reject any bid, expressly conditions

the award of a contract on the certification of available funds, and expressly

states the City “may” but not “must” negotiate with the low bidder, and only if it

is not possible to resolicit bids, which, in this case it was. Although the City

failed to provide notice in writing to Plaintiff and Shaw Bros. that the project was

being scaled back and rebid, the undisputed record shows that the City provided

Plaintiff and Shaw Bros. with plenty of notice of that plan, including identical

® § 2-302 (c).

12

written specifications on the scaled back project and time to reconfigure their

bids. That the City failed to publicly advertise the rebid was confusing or

misleading only to third parties who may have also wished to take part. Even

there, the finance director retained discretion, under City ordinances, to restrict

the scope of bid solicitations?

Nothing in the record on summary judgment, although viewed ina light

most favorable to the Plaintiff, suggests the City engaged in practices that create

a likelihood of “confusion or misunderstanding” within the meaning of

deceptive trade practices statute, 10 M.R.S.A. § 1212(L), and Plaintiff’s claim

under the statute fails as a matter of law.

Count VI. Declaratory Judgment

The Superior Court has discretionary authority pursuant to 14 M.R.S.A. §

9951 and MLR. Civ. P. 57 to entertain requests for and to enter declaratory

judgments in appropriate circumstances.” Maine Cent. R.R. Co. v. Town of Dexter,

588 A.2d 289, 293 (Me. 1991). “{W]hether a declaratory judgment should be

issued rests in the sound discretion of the trial court.” Dodge v. Town of

Norridgewock, 577 A.2d 346, 347 (Me. 1990). However, “courts should decline to

decide issues which by virtue of .. . circumstances have lost their controversial

vitality.” State v. Jordon, 1998 ME 174, { 10, 716 A.2d 1004, 1006. A case or

controversy will be found moot when a court finds that not enough practical

effects would flow from resolving the litigation to justify expending limited

judicial resources. Id. N onetheless, even a case that is moot may be reached on

its merits if:

° § 2-302 (c), (d)(2).

13

(1) sufficient collateral consequences will result from the determination of

the questions presented so as to justify relief;

(2) the appeal contains questions of great public concern that, in the

interest of providing future guidance to the bar and public, the Court may

address; or

(3) the issues are capable of repetition but evade review because of their

fleeting or determinate nature.

Monroe v. Town of Gray, 1999 ME 190, 15, 743 A.2d 1257, 1258 (citing Halfway

House v. City of Portland, 670 A.2d 1377, 1380 (Me. 1996)).

Plaintiff seeks a declaratory judgment finding that the City’s contract with

Shaw Bros. to be null and void and finding that the contract is properly awarded

to Plaintiff. The City argues this claim is moot now that the contract has been

awarded to Shaw Bros. and work on the Jetport project at issue is complete, and

that no exceptions apply. Plaintiff argues the claim is not moot under the

exception to mootness for issues of “great public concern.” Id.

Here, the record provides no evidence that the City’s competitive bidding

practices and regulations are an issue of great public importance or that this

Court should provide guidance to the bar or the public in an area of “continued

uncertainty in the law.” Globe Air, Inc. v, Thurston, 438 A.2d 884, 887 (Me.

1981)(citation omitted). Nothing added to the record by additional discovery

supports the need for a separate decision, other than the decision reached in

Plaintiff’s 80B appeal, on whether the contract was lawfully awarded. Sucha

decision, “in the absence of practical consequences ... would be a meaningless

abstract decision that the mootness doctrine is intended to prevent.” Look Constr.

Co. v. Town of Beals, 2002 ME 128, J 7, 802 A.2d 994, 996 (finding an 80B appeal

14

moot and no public interest exception applied after a disputed construction

contracted awarded and the contract performed). See, also, Globe Ar, Inc. v,

Thurston, 438 A.2d 884, 887 (Me. 1981)(finding nothing could be done to restore

the status quo to an unsuccessful bidder once the disputed contract was fully

executed, and the matter was moot).

Count III. Negligent Misrepresentation and Count VIII. Injunction

Plaintiff concedes that Plaintiff’s Count III for negligent misrepresentation

is barred under the Maine Tort Claims Act, 14 M.R.S.A. § 8101 et seq. Plaintiff

also concedes Plaintiffs request to enjoin execution of the contract is now moot.

This Court GRANTS summary judgment to Defendant City of Portland

on all remaining Counts, II-VI of Plaintiff Maietta Construction, Inc.’s

Lil

Roland A>Cole7

Justice, Superior Court

Complaint.

Dated Fila. a 200-2

15

a... I ec NSE ansenennneerene

Date Filed _a7-] 6-03 _Cumberland | Docket No. AP-03-47

County

Action ___80B Appeal

MATETTA CONSTRUCTION, INC. CITY OF PORTLAND

SHAW BROTHERS CONSTRUCTION; INC, Dismissed

VS.

Plaintiff's Attorney Defendant’s Attorney

Timothy H. Norton, Esq./Jennifer Archer,Esq. |Michael D. Traister, Esq. (Shaw Brothers)

Kelly, Remmel & Zimmerman P.O. Box 9785

53 Exchange Street Portland, Maine 04104-5085

P.O. Box 597 (207) 773-5651

Portland, Maine 04112-0597 James A. Billings, Esq. (co-counsel1)

(207) 775-1020 Donna M. Katsiaficas, Esq.

City of Portland

389 Congress Street

Portland, Maine 04101-3509

Date of (207) 874-8480

Entry

2003 aaa od ioieieiilianl ienhinian dijon aeons

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

. DOCKET NO. AP-03-047

Maietta Construction, Inc., ‘ gee A

Appellant MERE

pi

v. wis ORDER

City of Portland, ee mt

Respondent ome ~

This case comes before the Court on Respondent City of Portland’s

Motion for Award of Attorney’s Fees pursuant to 42 U.S.C. § 1988.

FACTS

Appellant Maietta Construction, Inc. (Appellant) and Respondent City of

Portland (the City) were engaged in litigation concerning the award of a

construction contract for work at the Portland Jetport. Appellant brought an

appeal pursuant to MLR. Civ. P. 80B, challenging that award, and also asserted a

number of independent claims. The independent claims included two 42 U.S.C.

§ 1983 claims for violation of Appellant’s due process (Count IV) and equal

protection (Count V) rights. Both claims alleged Appellant had a protected

property right to the Jetport contract.

In January 2004, Appellant’s 80B appeal was denied. The City moved to

dismiss Appellant’s independent claims, arguing that those claims were now

barred by the doctrine of collateral estoppel. That motion was denied when this

Court found the doctrine inapplicable, because the Court's decision on

Appellant's 80B claim was not a final judgment for collateral estoppel purposes.

J

MLR. Civ. P. 54(b)(1). On February 2, 2005, this Court granted summary

judgment to the City on all of Appellant's independent claims. The City now

seeks an award of attorney’s fees pursuant to 42 U.S.C. § 1988 as the prevailing

party in Appellant's § 1983 claims.

DISCUSSION

The Civil Rights Attorney’s Fees awards Act authorizes state courts, under

certain circumstances, to award attorney’s fees to the prevailing party in a § 1983

action. Such an award is entirely discretionary. 42 U.S.C. § 1988 (“... the court,

in its discretion, may allow the prevailing party, other than the United States, a

reasonable attorney's fees as part of the costs.”) Id. Where, as here, the prevailing

party is the Defendant, attorney’s fees may be awarded only upon a finding that

the Plaintiff’s § 1983 claim was “frivolous, unreasonable or groundless, or that

Plaintiff continued to litigate after it clearly became so.” Christianburg Garment

Co. v. Equai Employment Opportunity Comm’n, 434 U.S. 412, 422 (1978). This

standard is consistent with § 1983's “generally pro-plaintiff and pro-civil rights

orientation and protects a defendant only from groundless litigation.” SHELDON

NAHMOD, THE LAW OF SECTION 1983 § 10:3 at 10-15 (4TH ED. 2004). A plaintiff

“who fully litigates an argument that is not "wholly without merit" does not

incur responsibility for the opposing party's fees.” Aucella v. Town of Winslow, 628

A.2d 120, 125 (Me. 1993). The Law Court has cautioned that “great care should

be exercised by the court in awarding a defendant attorney fees for defending an

action brought under section 1983.” Burr v. Town of Rangeley, 549 A.2d 733, 735

(Me. 1988). However, plaintiffs are also warned that “civil rights claims should

not be included in an action seeking judicial review of an administrative decision

as a matter of reflexive routine or for the purpose of gaining leverage against the

municipality.” Id.

Thus, when a plaintiff's claim that Town officials were motivated by racial

discrimination in a tax lien foreclosure survived summary judgment and was

decided by a jury, the Law Court affirmed that his § 1983 equal protection claim

was “not without merit” nor filed reflexively to gain leverage, and refused to

award the Town attorney’s fees. Aucella, 628 A.2d at 125. Where there was

“some merit” to a kennel owner’s substantive due process claim, the trial court

acted “well within its discretion” in denying fees to the prevailing town. Bushey

v. Town of China, 645 A.2d 615, 619 (Me. 1994). However, attorney’s fees were

awarded to the defendant municipality when a developer’s substantive due

process claim was filed reflexively; was a “naked and unsubstantiated

allegation” and was “totally lacking in merit.” Burr v. Town of Rangeley, 549 A.2d

at 735.

Here, both Appellant’s § 1983 claims allege that Appellant was deprived

ot its property interest in the Jetport contract. The City argues that such claims

were totally lacking in merit following the Law Court’s 2002 holding in Look

Construction v. Town of Beals, 2002 ME 128, 802 A.2d 994. In Look Construction, the

Law Court expressly held that “disappointed bidders do not have a property

interest [in the contract] unless the applicable law or regulation mandated that

the contracting body accept the bid and gave it no discretion whatsoever to reject

the bid.” Id. J 16, 802 A.2d at 999.

Appellant, however, did not ignore the holding in Look Construction.

Instead, after surviving the City’s motion to dismiss, Appellant sought to survive

summary judgment on the § 1983 claims by alleging that there was dispute over

whether the City was mandated to accept Appellant's initial low bid or had the

discretion to reject it. Appellant cited provisions in the City’s ordinances,

including general language, that suggested the City was required to award

contracts to the lowest bidder. Appellant also argued there was some evidence

Appellant had in fact been awarded the contract, but was later deprived of it.

Although Appellant did not prevail on these admittedly thin arguments, the

allegations of a property interest in the contract were not “naked and

unsubstantiated allegations,” or “totally lacking in merit.” Burr v. Town of

Rangeley, 549 A.2d at 735.

Respondent City of Portland’s Motion is hereb NIE

Date \ on b, 2.005

Jyhtice, “ep Court +7

Date Filed 07-16-03 Cumberland Docket No. _4?-03-47

County

Action __80B Appeal

MATETTA CONSTRUCTION, INC. CITY OF PORTLAND

SHAW BROTHERS- CONSTRUCTION, inc, Dismissed

¥S.

Plaintiff's Attorney Defendant’s Attomey

Timothy H. Norton, Esq./Jennifer Archer,Esq. |Michael D. Traister, Esq. (Shaw Brothers)

Kelly, Remmel & Zimmerman P.O. Box 9785

53 Exchange Street Portland, Maine 04104-5085

P.O. Box 597 (207) 773-5651

Portland, Maine 04112-0597 ‘ay

(207) 7751020 Domne Me at DIRT

City of Portland

389 Congress Street

Portland, Maine 04101-3509

Date of (207) 874-8480

Entry

James Rijlings Fsq and

2003 Edward R. Benjamin, Jr., Esq.

Thompson & Bowtie, LLP

July 18 Received 07-16-03. P.O. Box 4630