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COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT clv. No. 12-0180

BERIGHIRE, SS

JAMESMASSERY PHILIPMASSERYANd Plaintiffs v.

CITY OF PITTSFIELD Defendant MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION B.A,CKGROUND (Massery) havefiled a first Massery and The plaintiffs,Philip Massery James to the verified complaint against City of Pittsfield(City), pursuant G.L. c. 30B, amended that the Procurement In essence, plaintiffs assert Pittsfieldhasviolated Act. the Uniform to a space the Adult LearningCenter(Center) Giroa for the Act in awarding bid to lease in (GDL), contrary the specification the to JeryWitkowski d/b/aG.D.L.Associates (RFP). for Request Proposal from the City bid In March2012,five potentialbiddersreceived packages bids in and Only Massery GDL submitted for the of regarding leasing space the Center. contract of to response the RFPprior to the biddingdeadline April 9,2012. Massery's and lease, GDL's contract overthe five-year pricewasfor $66,000lyear $330,000 or In lease. addition,the RFPalso pricewasfor $45,000 lyearor $225,000 overthe five-year on permittedPittsfieldto evaluate bidsbased criteriaotherthanprice.The Evaluation the (2) (1) forth in the RFPincluded; Build Out Requirements; Locationof Space Criteriaset and, (3) Program; Proximityto PublicTransportation; (4) for Family LiteracyDaycare as simplyratethe bidders'proposal that NaturalLight. The City required the evaluators The or "highly advantageous" "advantageous" "not advantageous." rating or to was contrary G.L. c. 30B,sec.6(e)(1). "unacceptable" not permitted Now beforethe courtis Massery'motionfor a preliminaryinjunctionto enjoin (with a five-yearoption)to GiroaJery a the City from awarding five-yearlease (GDL).' Theproposed is as space identified 141 Associates WitkowskidlblaG.D.L.
I To prevail on its requestfor a preliminary injunction, the plaintifls must show a strong likelihood of successon the merits of her claim, that she will suffer irreparable harm without the requestedinjunctive

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as feet Pittsfieldandprovidesa minimumof 5,800square of space required North Street, in the RFP("premises"). variousaffidavitsand answer, the I havereviewed verifiedcomplaint, havehadan for Counsel the parties documents. as memoranda, well asthe supporting is The to oral opportunity present arguments. crux of this dispute the plaintiffs' assertion of that GDL hasfailedto complywith the minimumbid specifications the RFP including; parking;(2) the of (l) the premises not containa minimumof two spaces handicap does parking;(3) the premises of premiese doesnot containa minimumof 20 spaces adequate was with the Americanwith DisabilitiesAct and(4) the premises is not in compliance hy occupancy July 1,2012, and not readyfor complete immediate Act The Uniform Procurement by is In this case, bid process govemed G.L. c. 30B,theUniformProcurement the of that and it to Act because seeks procuresupplies services arein excess $25,000. procurement officer shallawardthe contractto the that Section5(g) of the Act states the in bidderasdefined $ 2, is "a and bidder.A responsive lowestresponsible responsive to person a bid which conformsin all respects the invitationfor bids." who hassubmitted officer shall The statute alsoprovidesasfollows: "[t]he procurement exceptasprovidedin this or a accept bid without alteration correction, unconditionally in modiff, or withdrawa bid by written noticereceived paragraph. biddermaycorrect, A the bid in the office designated the invitationfor bidsprior to the time anddatesetfor the a After bid opening, biddermay not change priceor anyotherprovisionof opening. bodyor fair prejudicial the interests the governmental of to the bid in a manner officer shallwaiveminor formalitiesor allow the bidder competition.Theprocurement them." G.L. c. 30B,sec.5(f;. to correct as 2 defines"minor informalities" "minor deviations, Section of thatchapter or of of mistakes, matters form ratherthansubstance the bid, proposal, and insignificant to withoutprejudice otherofferors, which canbe waivedor corrected document contract body." potentialofferors,or the governmental is biddingstatute promotionof Thepublicpolicy which drivesthe competitive Engr. Corp. v. Fitchburg, for andhonest competition public contracts.Interstate open the 30B serves like statute Chapter of 367 Mass.751(I975). Thepurpose a procurement favoritismin the while preventing contract the dualgoalof obtaining mostfavorable Mass.383,389(1998); Inc. v. Chelsea,426 publicsector.Cataldo Ambulance Serv., Auth.,387Mass'687,691-92 Bay Products Corp.v. Massachusetts Transp. Phipps to adherence biddingrequirements, (1982).Massachusetts courtshaverequiredstrict the wherethe violationbenefits public. Id. at 692.As a result,anycontract evenin cases
relief and that the harm, without the injunction, outweighs any harm to the defendantsfrom being enjoined. GTE Products Corp. v. Stewart,414 Mass. 721,722-23 (1993); PackagingIndus. Group, Inc. v. Cheney, Inc. v. Operation 380 Mass. 609,616-17 (1980). SeePlanned Parenthood League of Massachusetts, Mass, 701,710 (1990). Rescue,406

Sciaba is mandates void andunenforceable. into entered in violation of the statute's G'L'c.308, $ 17(b). 181, Mass.App.Ct. 185(1993); Corp.v. Boston,35 Constr. biddingrequirements from statutory Althoughminor or merelyformaldeviations bidding to strictadherence statutory do not compelinvalidationof a contract, Corp. v. Gil-BernConstruction of in is requirements required matters substance. a is a Whether deviation considered minor Brochon,353Mass.503,506(1968). to uponwhetherinvalidationis necessary depends or a matterof substance technicality Corp.,387Mass.at 692. purpose Phipps . Products fulfill the legislative for by established the Legislature the award with Non-compliance the procedures of by is of public contracts not excused the absence badfaith or comrption,evenwhere or in reduction costto thetaxpayers otherwise the violationresultsin a substantial at Products Corp.,387Mass. 692.Inotherwords,"[t]hatthe the benefits public. Phipps a asoneof their purposes reductionin costis here,had authority,ascontended awarding of contravention the excuse Eventhe bestof motivescannot of no consequence.... Mass. of Committee NorthReading,334 Inc. v. School Housing & statute."Grande Son, (1 2 5 2 , 25 8 9 5 6 ). DISCUSSION that that the RFPrequires the bids complywith certain Thereis no dispute included: the to as Specifically, related this case, requirements identifiedrequirements. 1. 2. 3. 4. be the space ADA compliant; parkingspaces; a minimumof two handicap a minimumof twentyparkingspaces; no occupancy laterthanJuly 1, 2012. for be available immediate

by that Theplaintiffs haveasserted the bid submitted GDL failedto satisff the however,it theseassertions, The abovefour requirements. City doesnot directlycontest from the by eitherremovingthe specification by to seeks avoidanytransgressions GDL bidder. to in the RFPor interpreting requirements a way mostfavorable the successful ADA Compliant the After theplaintiffs raisedthe ADA issuewith the defendant, City indicated in that it wasan errorto includethis requirement the RFP. It is the City's positionthat jurisdiction the sincethe City hasno legalauthorityto enforce Act, asthe exclusive with the Act shouldnot havebeenin the compliance with the federalgovernment, resides to neitherbidderwas subjected meetthe RFP."Upon learningof sucha lack of authority, to the with respect i.e. requirement ADA compliance, eachbidderwastreated same of p. (Defendant's memorandum 4). In otherwords,the City simply compliance." ADA from theRFP. the ignoredor expunged ADA requirement

compliance of to As a preliminarymatter,the fact that the City is unable enforce right to impose The to irrelevant the biddingprocess. City hasthe absolute ADA appears provideevidence of on suchconditions potentialbiddersandto requirethat they letter,etc. If a bidderis unableto contractor's i.e. certificate, compliance; architect's is that If satisff the City, the bid will not be considered. it is laterdiscovered the space At the with the ADA, the City is ableto terminate contract. no point is the not in accord to the City responsible enforce Americanwith DisabilityAct. to with the City's decision ignorethe therearethreeproblems In this situation Act in ADA requirement the RFP.First,the Procurement doesnot allow the municipality to in the contained the RFPand"strict adherence statutory to alteror amend requirements Corp. Gil-BernConstruction of is in biddingrequirements required matters substance." (1968). if the awarding TheAct wouldbemeaningless 353 v. Brockton, Mass.503,506 afterbids alteror removeanyof the biddingrequirements authorityis ableto change, the to vivid imagination not necessary foresee potentialfor collusion is A werereceived. authority.SeeE.H. Perkins of wasin the hands the awarding if suchability or discretion allowance 208, Inc. Construction, v. Townof Lincoln,T8Mass.App.Ct. 213(2010)("The of nms afoul of the basicpremise section of of the arbitraryexercise municipaldiscretion 39M.")(Trainorconcuning). is sucha procedure patentlyunfairto the unidentifiedgroupof Secondly, of of potentialbidderswho mayhavepassed the projectbecause the existence the on Theywerenot providedwith the informationthat the ADA wasno ADA requirement. as longerin play.Indirectly,this infringeson the ability of the public to secure may bids the to aspossible achieve lowestprice. was Finally,this approach unfairto the plaintiffs astheywereunderthe and that impression ADA wasa basicrequirement compliedwith the termsof the RFP. a theywould havesubmitted differentbid if to whether AlthoughI am unable determine that fair play indicates they prior to the bidding, theywereprovidedwith this information mustbe doneprior to the havesucha right. The eliminationof the ADA requirement 5. by 30B, section openingof the bids asrequired chapter in for the By unilaterallyeliminating requirement ADA compliance the the RFPafterthe bidswereopened City violatedG.L. c. 30B,the Uniform Procurement Act. Parking associated as Althoughit is not clear,it appears if GDL hasno parkingspaces problemby asserting anyparking that this to with its building.' The City seeks overcome "in spaces proximity" will satisfythe RFP.Accordingto KristenBehnke,School in therearetwo parkinggarages Administrator the PittsfieldPublic Schools, for Business
2 | acceptthe City's argumentthat the RFP does not require that any bidder own or leaseany parking spacesat the time of the bid opening. However, any successfulbidder must be able to comply with the parking requirement at the time the leasecornmences.

the City that "contained morethantherequired minimumof spaces" includinghandicap parkingspaces. Again,this interpretation the RFPeliminates parkingrequirement the from the of proposal. The words"in proximity" arenot in the RFPandthereis no definitionor description thatterm.The elusiveness that term is obviousandrenders of of the illusory.Everybidder"in proximity" hasperforce requirement satisfied parking the parkingon the streets. also prerequisite, particularlyif you includeall the available It parkingon its head,by claimingthat suchspaces turnsthe definitionof "handicap" exist not in someparkinggarage adjoiningthe property. The City hasalsonot addressed issuethat mostparkingin downtown the Pittsfieldis limited in time, usually3 hours,andwould requireall patrons the Centerto of constantly relocate their vehicles considerable to at inconvenience themselves the and program. This would be particularly individuals. is hardto It true for anyhandicap fathomthat the City would imposethese conditions the Center's on clientele. Giventhe above, potentialbidderreviewingthe RFPwould reasonably any conclude the parkingrequirement for "dedicated" that spaces would be always that was available the patrons the Adult LeamingCenter. interpreting RFPto permit to By the of parkingspaces, City, again, potentiallyeliminated non-dedicated the has biddersfrom the process hasviolated and G.L. c. 308.' ORDER Theplaintiffs' motionfor preliminaryinjunctionis ALLOWED andthe City of any Pittsfieldis ENJOINEDfrom implementing enforcing termsor obligations or under the Contract with GDL.

SO ORDERED
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' The plaintiffs also raise issuesregarding the number of evaluation criteria used by the City (three instead ofthe statutory four), incorrect evaluationsregarding public transportationand the starting date ofthe lease as identified by GDL. The City may want to consider these issueson any re-bid.