Good Earth Tree Care, Inc. v. Fairfield

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
THE GOOD EARTH TREE CARE, INC. v. TOWN
OF FAIRFIELD
(AC 35468)
Lavine, Keller and Borden, Js.
Argued May 29—officially released July 22, 2014

(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial
referee.)
Christopher J. Smedick, for the appellant (plaintiff).
Stanton H. Lesser, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, The Good Earth Tree
Care, Inc., brought this action against the defendant,
the town of Fairfield, seeking injunctive relief on the
basis of the defendant’s failure to award the plaintiff
a municipal contract. The plaintiff appeals from the
judgment of the trial court dismissing its complaint for
lack of standing. On appeal, the plaintiff claims that
the trial court erroneously concluded that the plaintiff
lacked standing due to its failure to prove that the
defendant exhibited favoritism in awarding a municipal
contract to a competitor. We affirm the judgment of
the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. The
defendant owns a leaf and yard waste facility. On May
18, 2012, the defendant issued bid number 2012-44R to
solicit sealed bids for a company to operate the waste
facility in a public-private partnership with the defen-
dant for five years. The defendant provided all prospec-
tive bidders, including the plaintiff, with a bid package
containing documents that set forth, inter alia, detailed
requests for required information, required standards
for qualification, a qualifications/operating proposal,
and a price proposal. The bid documents notified pro-
spective bidders that the defendant had the option to
conduct individual interviews as part of the evalua-
tion process.
The bid documents explained that an evaluation
panel comprised of town officials and employees was
tasked with reviewing the submitted bids, conducting
interviews, and selecting the successful bidder. Each
panel member filled out scoring matrices—models of
which were provided in each bid package—to analyze
each bidder’s qualifications and price proposals.
The defendant received three bids for bid number
2012-44R. It rejected one bid due to its relatively high
price proposal. This left the defendant with two bids
to consider, one submitted by the plaintiff and the other
submitted by GreenCycle of Connecticut, Inc.
(GreenCycle), the company that had operated the waste
facility for the previous five years. The evaluation panel
interviewed both bidders and inquired regarding their
qualifications, price proposals, and general plans for the
operation. The panel ultimately awarded the contract to
GreenCycle, which received a total score of 457 points
out of a possible 500 points as compared to the plain-
tiff’s score of 411 points. Although the plaintiff’s bid was
less than GreenCycle’s, the plaintiff scored relatively
poorly on the qualifications portion of the evaluation
because the panel concluded that the plaintiff lacked
the proper experience to run the waste facility.1 Further,
the panel determined that the plaintiff intended to
charge the defendant an unspecified amount for any
additional operations caused by storm cleanup consid-
ered to be outside of normal operations, while GreenCy-
cle would not charge an extra fee for those
additional services.
The plaintiff filed this action on July 13, 2012. The
plaintiff claimed that the defendant failed to abide by its
town charter and bidding requirements by not awarding
the contract to the plaintiff, alleging that it was the
‘‘lowest qualified bidder.’’2 According to the plaintiff,
the defendant’s failure to award the contract to the
plaintiff undermined the integrity of the bidding process
because it exhibited favoritism toward GreenCycle.
After filing its answer, the defendant filed a motion to
dismiss for lack of subject matter jurisdiction on August
23, 2012. The court initially denied the motion to dismiss
on October 22, 2012. At trial, the defendant renewed
its motion to dismiss after the plaintiff rested its case.
On February 19, 2013, the court issued a memoran-
dum of decision granting the defendant’s motion to
dismiss on the basis of jurisdictional findings the court
made after the plaintiff rested its case.3 The court con-
cluded that the plaintiff did not have standing because
it failed to prove by a preponderance of the evidence
that the defendant had shown favoritism toward
GreenCycle in awarding it the contract to operate the
waste facility. The court emphasized that the defendant
conducted a fair bidding process, did not give any unfair
advantage to either bidder, and made its decision solely
on the merits of the bid proposals it received. The court
further noted that the evaluation panel adhered strictly
to the bidding requirements and to the criteria set forth
in the bid documents and made a good faith interpreta-
tion of the bidding requirements when applying them
to the bidders. This appeal followed.
The plaintiff claims that the court erroneously deter-
mined that the plaintiff did not have standing because
the plaintiff failed to prove that the evaluation panel
exhibited favoritism toward GreenCycle in the bid
selection process. In particular, the plaintiff argues that,
in awarding GreenCycle the contract, the panel relied
on requirements not explicitly provided in the bidding
documents. We disagree.
We begin by setting forth the relevant standard of
review. ‘‘A motion to dismiss . . . properly attacks the
jurisdiction of the court, essentially asserting that the
plaintiff cannot as a matter of law and fact state a cause
of action that should be heard by the court. . . . A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[T]rial courts addressing motions to dismiss for lack of
subject matter jurisdiction . . . may encounter differ-
ent situations, depending on the status of the record in
the case. . . . [W]here a jurisdictional determination
is dependent on the resolution of a critical factual dis-
pute, it cannot be decided on a motion to dismiss in
the absence of an evidentiary hearing to establish juris-
dictional facts.’’ (Citations omitted; internal quotation
marks omitted.) Columbia Air Services, Inc. v. Dept.
of Transportation, 293 Conn. 342, 346–48, 977 A.2d
636 (2009).
Generally, an unsuccessful bidder on a municipal
contract has no standing to challenge a failed bid. See
Ardmare Construction Co. v. Freedman, 191 Conn. 497,
501, 467 A.2d 674 (1983). This results from the fact that
‘‘[a] bid, even the lowest responsible one, submitted in
response to an invitation for bids is only an offer which,
until accepted . . . does not give rise to a contract
between the parties.’’ (Internal quotation marks omit-
ted.) AAIS Corp. v. Dept. of Administrative Services,
93 Conn. App. 327, 331, 888 A.2d 1127, cert. denied, 277
Conn. 927, 895 A.2d 798 (2006).
There is an exception to this rule if the bidder pro-
vides evidence that ‘‘fraud, corruption or favoritism
ha[d] influenced the conduct of the bidding officials or
[that] the very object and integrity of the competitive
bidding process [was] defeated by the conduct of
municipal officials.’’ Spiniello Construction Co. v. Man-
chester, 189 Conn. 539, 544–45, 456 A.2d 1199 (1983)
(municipality impermissibly favors bidder if it provides
that bidder with information unavailable to other bid-
ders). A municipality does not exhibit favoritism by
making good faith interpretations of bidding require-
ments and applying them in a consistent and nondis-
criminatory fashion. See Ardmare Construction Co. v.
Freedman, supra, 191 Conn. 506. Although the assess-
ment of the criteria for determining the ‘‘lowest quali-
fied bidder’’ includes some subjective analysis, ‘‘that
subjective analysis . . . does not carry with it the
imprint of favoritism, but rather is a wholly permissive
exercise of the [municipality’s] discretion unless favor-
itism otherwise is illustrated.’’ AAIS Corp. v. Dept. of
Administrative Services, supra, 93 Conn. App. 332.
In light of the nature of the claim raised in this appeal,
we are bound to review only whether the court’s find-
ings were clearly erroneous. ‘‘Factual findings are sub-
ject to a clearly erroneous standard of review. . . . It
is well established that [a] finding of fact will not be
disturbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . . Our authority, when reviewing the findings of a
judge, is circumscribed by the deference we must give
to decisions of the trier of fact, who is usually in a
superior position to appraise and weigh the evidence.
. . . The question for this court . . . is not whether it
would have made the findings the trial court did, but
whether in view of the evidence and pleadings in the
whole record it is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Lynwood Place, LLC v. Sandy
Hook Hydro, LLC, 150 Conn. App. 682, 687, A.3d
(2014).
Following our review of the record, we conclude that
the court’s findings were not clearly erroneous. The
court reasonably found that the evaluation panel, in
good faith, interpreted and applied the broad require-
ments contained in bid number 2012-44R’s bid docu-
ments equally to the plaintiff and GreenCycle in
reaching its decision to award the municipal contract
to GreenCycle. Accordingly, we are not persuaded by
the plaintiff’s claim that the defendant exhibited favorit-
ism toward GreenCycle by considering undisclosed
requirements, to GreenCycle’s advantage, in awarding
GreenCycle the contract.
The judgment is affirmed.
1
GreenCycle scored 172 points out of a possible 175 points on the qualifica-
tions portion of the evaluation, while the plaintiff scored 128 points. The
Purchasing Authority of the Board of Finance of the Town of Fairfield issued
an award letter explaining its reasoning for choosing GreenCycle instead
of the plaintiff.
2
According to the bidding requirements of the Board of Finance of the
Town of Fairfield (board), the board’s purchasing authority ‘‘shall make the
purchase from or let the contract to the lowest qualified bidder, or shall
reject all bids.’’ The bidding requirements defined ‘‘Lowest Qualified Bidder’’
as ‘‘[a] supplier who has the capacity and capability to provide goods/services
in conformance with the specifications for quality, quantity, service and
delivery at the lowest cost.’’
3
The court issued a corrected memorandum of decision on October 30,
2013, to correct an error in the form of the judgment.