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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 defendant for five years. The defendant provided all prospective 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 prospective bidders that the defendant had the option to

conduct individual interviews as part of the evaluation 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 forthe

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 plaintiff’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 considered to be outside of normal operations, while GreenCycle 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 forlack of subject matterjurisdiction 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 memorandum 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 concluded 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 interpretation of the bidding requirements when applying them

to the bidders. This appeal followed.

The plaintiff claims that the court erroneously determined 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 different 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 dispute, it cannot be decided on a motion to dismiss in
the absence of an evidentiary hearing to establish jurisdictional 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 omitted.) 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 provides 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. Manchester, 189 Conn. 539, 544–45, 456 A.2d 1199 (1983)

(municipality impermissibly favors bidder if it provides

that bidder with information unavailable to other bidders). A municipality does not exhibit favoritism by

making good faith interpretations of bidding requirements and applying them in a consistent and nondiscriminatory fashion. See Ardmare Construction Co. v.

Freedman, supra, 191 Conn. 506. Although the assessment of the criteria for determining the ‘‘lowest qualified 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 favoritism 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 findings were clearly erroneous. ‘‘Factual findings are subject 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 conviction that a mistake has been committed.’’ (Internal quotation 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 requirements contained in bid number 2012-44R’s bid documents 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 favoritism 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 qualifications 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.