COURT OF CHANCERY

OF THE

STATE OF DELAWARE

JOSEPH R. SLIGHTS III

 VICE CHANCELLOR

 417 S. State Street

 Dover, Delaware 19901

Telephone: (302) 739-4397

Facsimile: (302) 739-6179

Date Submitted: August 30, 2016

Date Decided: August 31, 2016

Edward Seglias, Esquire Ann C. Cordo, Esquire

Robert K. Beste, Jr., Esquire Jennifer R. Noel, Esquire

Cohen, Seglias, Pallas, Department of Justice

 Greenhall & Furman, P.C. 820 North French Street, 6th Floor

1007 Orange Street, Suite 1130 Wilmington, DE 19801

Wilmington, DE 19801

Re: Kuhn Construction Company v. Department of Transportation

C.A. No. 12629-VCS

Dear Counsel:

On August 18, 2016, the Court issued a Letter Opinion in which it granted 

Kuhn Construction Company’s application for a temporary restraining order.1 The 

Court’s Order restrained the Delaware Department of Transportation (“DelDOT”) 

from awarding a public bid contract for a construction project (“the project”) to 

any entity other than Kuhn pending discovery and preliminary injunction 

proceedings that will address: (1) whether Kuhn included a statutorily required 

 

1

 Kuhn v. Dep’t of Transp., 2016 WL 444075 (Del. Ch. Aug. 18, 2016). 

EFiled: Aug 31 2016 02:29PM EDT 

Transaction ID 59496894

Case No. 12629-VCS
Kuhn Construction Company v. Department of Transportation

C.A. No. 12629-VCS

August 31, 2016

Page 2

“bid bond” with its bid for the project; and (2) if so, whether DelDOT improperly 

rejected Kuhn’s conforming bid (the lowest of the bids submitted). The Court

declined to enter a mandatory injunction requiring DelDOT to rebid the project, 

however, because it determined that DelDOT’s violation of 29 Del. C. 

§ 6962(d)(8)(a) (“Section 6962”) by reading Kuhn’s bid before confirming 

whether it contained the necessary bid bond did not justify mandatory injunctive 

relief. 

Even though it prevailed on its request for a temporary restraining order, 

Kuhn has now petitioned this Court to certify an expedited interlocutory appeal of 

that portion of the Court’s decision denying Kuhn’s request that DelDOT be 

directed to rebid the project. DelDOT opposes the petition.

Delaware Supreme Court Rule 42(b)(i) provides that “[n]o interlocutory 

appeal will be certified by the trial court or accepted by [the Delaware Supreme] 

Court unless the order of the trial court decides a substantial issue of material 

importance that merits appellate review before a final judgment.” Instances where 

the trial court certifies an interlocutory appeal “should be exceptional, not routine, 

because [interlocutory appeals] disrupt the normal procession of litigation, cause 
Kuhn Construction Company v. Department of Transportation

C.A. No. 12629-VCS

August 31, 2016

Page 3

delay, and can threaten to exhaust scarce party and judicial resources.”

2

 For this 

reason, “parties should only ask for the right to seek interlocutory review if they 

believe in good faith that there are substantial benefits that will outweigh the 

certain costs that accompany an interlocutory appeal.”

3 When certifying an 

interlocutory appeal, “the trial court should identify whether and why the likely 

benefits of interlocutory review outweigh the probable costs, such that 

interlocutory review is in the interests of justice. If the balance is uncertain, the 

trial court should refuse to certify the interlocutory appeal.”

4

The Court has entered a temporary restraining order that preserves the status 

quo for a period sufficient to allow Kuhn to establish a factual record in support of 

its claim that it included a bid bond with its bid for the project. If Kuhn 

demonstrates a reasonable probability it will prove that fact at trial, the Court has 

already advised the parties that it will enter a preliminary injunction precluding

DelDOT from awarding the contract for the project to anyone else pending trial. If 

 

2

Supr. Ct. R. 42(b)(ii).

3

Id.

4

Supr. Ct. R. 42(b)(iii).
Kuhn Construction Company v. Department of Transportation

C.A. No. 12629-VCS

August 31, 2016

Page 4

Kuhn prevails at trial, then the Court will order that DelDOT award the contract for 

the project to Kuhn. All of this will occur in short order as the Court has granted 

Kuhn’s request for expedited proceedings. 

What Kuhn proposes now is a piecemeal approach to the litigation that will 

not advance the interests of justice but will increase costs and burdens.

5

 If the 

Court enters a final judgment that Kuhn is not entitled to relief on its claim that 

DelDOT wrongfully rejected Kuhn’s conforming low bid, then Kuhn will have an 

opportunity to present to the Supreme Court on direct appeal any appellate issues 

relating to that determination along with its argument that this Court erred by not 

entering a mandatory injunction requiring DelDOT to rebid the project as a remedy 

for DelDOT’s violation of Section 6962 by reading Kuhn’s bid before ascertaining 

whether it contained a bid bond.

6 Of course, if Kuhn prevails on its conforming 

 

5 Krahmer v. Christie’s Inc., 2006 WL 4782303, at *1 (Del. Ch. June 15, 2006) (denying 

certification upon noting that “[c]ertification would likely result in the piecemeal appeal 

of factually and legally related issues and would be contrary to the interest of justice and 

the orderly procession of matters before this court.”). 

6

To address its claim of urgency, Kuhn can seek an injunction pending appeal if it can 

demonstrate that the balance of equities and other criteria justify that relief, Ct. of Ch. 

R. 62(c), and request expedited scheduling of its direct appeal if it can demonstrate “good 

cause.” Supr. Ct. R. 25(e). 
Kuhn Construction Company v. Department of Transportation

C.A. No. 12629-VCS

August 31, 2016

Page 5

bid claim, then its statutory argument will be moot and the Supreme Court’s 

consideration of that issue will have to await another day and another appeal 

(unless, of course, DelDOT takes an appeal in which case Kuhn may raise the issue 

on cross-appeal). What is not justified here, however, is for Kuhn to get an 

indefinite extension of the temporary restraining order while it appeals only a 

portion of the Court’s order, particularly when it succeeded in having the Court 

preserve the status quo by preventing DelDOT from moving forward with the 

project so that it could attempt to prove that its bid included the bond required by 

Section 6962.7

Under these circumstances, I cannot certify that the likely benefits of 

interlocutory review outweigh the probable costs. Accordingly, the petition for 

certification of an interlocutory appeal is denied.

IT IS SO ORDERED.

 Very truly yours,

/s/ Joseph R. Slights III

 

7 Kuhn certainly is free to withdraw its claim that it submitted a conforming bid, in which 

case the Court will enter a final order denying its statutory claim from which a direct 

appeal may be taken.