936 N.E.2d 890
Mass. App. Ct.2010Background
- Lincoln sought bids for a 2009 road paving project; Sunshine Paving Corp. won after the town waived a prequalification requirement.
- Perkins, Sunshine’s competitor, bid and contested the waiver as a violation of public bidding laws.
- A preliminary injunction stayed the process while Perkins’ challenge proceeded in Superior Court.
- The town sought interlocutory review to dissolve the injunction; a single justice granted that petition, allowing the project to move forward.
- Perkins appealed under G. L. c. 231, § 118, second paragraph, arguing the dissolution was improper; the project progressed and the underlying merits remained in Superior Court.
- The majority dismissed the appeal as moot, while acknowledging the merits issue should be resolved in trial court if pursued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the appeal moot? | Perkins maintains residual interest in merits and bid costs. | Town argues appellate review is premature and the issue is academic. | Appeal dismissed as moot |
| Did the single justice abuse discretion in dissolving the injunction? | Perkins contends the injunction should be reinstated to cure bidding-law issues. | Town argues no abuse given timing and public interest. | Not reached; moot due to dismissal |
| Whether the prequalification waiver violated public bidding laws and open competition principles | Waiver of a mandatory prequalification defeats fair competition and §39M aims to ensure open bidding. | Nonstatutory prerequirements can be cured or waived as minor formalities in some cases. | Not reached; merits to be addressed in trial court |
| Whether Perkins established irreparable harm from the injunction dissolution | Losing bid preparation opportunities irreparably harms Perkins, especially where contract value is affected. | Some economic harm may be recoverable, but not irreparable generally. | Irreparable harm recognized, but moot |
Key Cases Cited
- Loyal Order of Moose, Inc., Yarmouth Lodge #2270 v. Board of Health of Yarmouth, 439 Mass. 597 (Mass. 2003) (public-interest balancing in injunctions)
- Commonwealth v. Mass. CRINC, 392 Mass. 79 (Mass. 1984) (public-interest and irreparable harm in governmental action)
- T & D Video, Inc. v. Revere, 423 Mass. 577 (Mass. 1996) (combined evaluation for dissolving preliminary injunctions)
- Modern Continental Constr. Co. v. Massachusetts Port Authy., 369 Mass. 825 (Mass. 1976) (arbitrary, capricious action and bidding-law review)
- Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392 (Mass. App. Ct. 1994) (open bidding and bid-preparation costs considerations)
- Gil-Bern Constr. Corp. v. Brockton, 353 Mass. 503 (Mass. 1968) (material defects in bid submittals; some flaws curable, others not)
- J. J. & V. Constr. Corp. v. Commissioner of Pub. Works of Fall River, 5 Mass. App. Ct. 391 (Mass. App. Ct. 1977) (curability of prequalification-related omissions varies by substance)
- Aspinall v. Philip Morris Cos., 442 Mass. 381 (Mass. 2004) (standard for review of single justice decisions under c. 231, §118)
- Blake v. Massachusetts Parole Bd., 369 Mass. 701 (Mass. 1976) (likelihood of success and irreparable harm in preliminary relief context)
- Peabody Constr. Co. v. Boston, 28 Mass. App. Ct. 100 (Mass. App. Ct. 1989) (informal vs. formal bid omissions and city discretion)
- Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392 (Mass. App. Ct. 1994) (summary view on bidding open competition and costs)
- Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217 (Mass. 2001) (irreparable harm in public-health/bidding contexts)