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~ 45 214 «—/?,
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
HAMPSHIRE, ss. SUPERIOR COURT
CIVIL ACTION NO. 15-214
SPLIT EXCAVATING, INC., )
Plaintiff )
)
vs. ) GAGLIARDUCCI CONSTRUCTION,
: ) INC.’S MEMORANDUM OF LAW IN
SPRINGFIELD TECHNICAL ) OPPOSITION TO MOTION FOR
COMMUNITY COLLEGE and ) PRELIMINARY INJUNCTION _
GAGLIARDUCCI CONSTRUCTION, ) RAMASHIRE SUPER COURT
INC,, ) an
Defendants ) NOY £8 2015
Now comes the Defendant, Gagliarducci Construction, Inc. (“Gagliard¥ic&”)AHGOWSKI, JA,
LERK / MAGISTRATE
submits the following memorandum in opposition to Plaintiff, Split Excavating, Inc.’s
(“Split”) Motion for Preliminary Injunction.
Under the provisions of Mass. R. Civ. P. 65 and well settled case law, Split cannot
show even a remote likelihood of success on the merits, let alone a reasonable likelihood
of success on the merits. There was no statutory bid law violation; the equities and the
law strongly favor, indeed require, that this Court not disturb the contract entered into
between Gagliarducci and Springfield Technical Community College (“STCC”). There is a
strong public interest favoring denial of the motion.
I. UNDISPUTED FACTS
Jerome Gagliarducci Jr. is employed by the Defendant, Gagliarducci Construction,
Inc. (“Gagliarducci”). 1 He was personally responsible for preparing and submitting
Gagliarducci’s bid to Springfield Technical Community College (“STCC”) in response to
IFB 2016-11. { 2 STCC did not provide Gagliarducci with any information other than IFB
2016-11 and Addendum No. 1. Mr. Gagliarducci did not have any conversations with
606867.1anybody at STCC regarding Gagliarducci’s bid in response to IFB 2016-11 prior to its
submittal. Mr. Gagliarducci did not have any written communication with anyone at
STCC concerning the same. {3 Gagliarducci did not have access to, nor did it request, any
information regarding any other potential bidders at any time. {1 4
On information and belief, Gagliarducci’s bid and all the associated documents
concerning Gagliarducci’s performance for STCC under a prior series of contract was
public information capable of being requested at any time during the duration of the
contract by any party, including Split by way of a simple Freedom of Information Act
request. {15
Gagliarducci submits many responses to public bid requests in the ordinary course
of its business and in the course of Gagliarducci’s corporate history. Gagliarducci, and
any bidder for that matter, always is privy to its own internal information in preparing a
response to a bid.
Similarly, Gagliarducci was not privy to Split’s internal calculations for any of its
other snow removal work for other public entities. 16 Gagliarducci did not have any
unfair advantage against any other bidder for the STCC IFB 2016-11.
Gagliarducci was not treated differently, was not evaluated on criteria other than
that set forth in the bid documentation. 17 The proposed snow removal work under IFB
2016-11 is different in scope and magnitude than the snow removal work performed by
Gagliarducci under previous contracts with STCC. 8 Gagliarducci was the low bidder by
several thousand dollars. Gagliarducci is obviously qualified to perform the contract for
STCC having done so for similar snow removal work at a fair price in the past. 119
All sealed bids were publicly opened per the bid specifications at STCC on
September 23, 2015 at 1:00 p.m. At that time the prices provided by all bidders, including
2
606867.1|
Gagliarducci’s, were unsealed and evaluated by STCC. Gagliarducci was announced at that
public bid opening as the low bidder.
Asa result Gagliarducci was awarded the contract. {11 After being awarded the
snow removal work, on October 7, 2015, Gagliarducci received a signed contract from
STCC. See Exhibit A, Gagliarducci Affidavit 12 In reliance upon the execution of that
contract, Gagliarducci has made equipment and personnel commitments for the winter of
2015-2016 and going forward.
The first notice that Gagliarducci received of Split complaining about the process
was by email dated November 2, 2015 at 2:24 p.m. approximately twenty six (26) days
after the contract was signed and forty (40) days after the bid opening. 4113
II. LAW AND ARGUMENT
A. Preliminary Injunction Standard
Under the standard, In order to prevail on its motion for injunctive relief, Split
bears the burden of showing: a likelihood of success on the merits; that it will suffer
irreparable harm if the injunctive relief sought is not granted; and that its harm, without
the injunction, outweighs any harm to Gagliarducci being enjoined. Boston Police
Patrolmen's Ass'n, Inc. v. Police Dept. of Boston, 446 Mass. 46, 49-50 (2006); GTE
Products Corp. v. Stewart, 414 Mass. 721, 722-23 (1993); Packaging Indus. Group, Inc. v.
Cheney, 380 Mass. 609, 616-17 (1980).
Also, this is one of those cases in which the risk of harm to the public interest must
‘be considered. Commonwealth v. MassCRINC, 392 Mass. 79, 87 (1984); Brookline v.
Goldstein, 388 Mass. 443, 447 (1983). See also Diebold Election Systems, Inc. v. William
F. Galvin, Suffolk Super. Ct., C.A. No. 07-1129 BLS1 (March 27, 2007) [22 Mass. L. Rptr.
606867.1301]; Cubic Transportation Systems, Inc. v. MBTA, Suffolk Super. Ct., C.A. No. 02-5412
BLS1 (December 12, 2002).
The burden of showing likelihood of success on the merits is on Split which seeks
the injunction, not on Gagliarducci and STCC, which oppose it. Robinson v. Secretary of
Administration, 12 Mass. App. Ct. 441, 451(1981).
Injunctive relief either by way of a temporary restraining order or by a preliminary
injunction implicates a power of equity which should be exercised delicately. It should not
be exercised routinely and the Court should refuse to grant such relief unless the
circumstances require it. Nolan and Sartario, Equitable Remedies, 31 M.P.S. sec. 139
(1993).
B. There is no Evidence that STCC Violated the Public Bidding Statutes
and Split has No Reasonable Prospect to Succeed on the Merits at
Trial
Turning to the matter before the Court, STCC followed the public bidding statutes
in bidding the work with respect to the current snow removal contract. What is missing in
Split’s Complaint, and in any of the moving papers, is any clear articulation of how Split
claims that STCC violated the public bidding statutes. An examination of the case law,
and the policies surrounding the public bidding statutes reveal that STCC strictly followed
the public bidding statutes and that each of STCC’s actions had been consistent with the
clear policy directives embodied in the bidding statutes and articulated by the Supreme
Judicial Court of Massachusetts.
There is no allegation of bid irregularity. E. Amanti & Sons, Inc. v. Town of
Barnstable, 42 Mass. App. Ct. 773, 776 (1987). Split does not claim that the bid
documents dealt it a disadvantage from other bidders. Split does not claim that it was the
low bidder for the snow removal project. Split cannot, and does not, claim that there was
4
606867.1any collusion between Gagliarducci and STCC. Split cannot, and does not, claim that
STCC acted arbitrarily or with favoritism. Split cannot claim that the contract was
awarded based upon any subjective factors. Gagliarducci had the low bid, and it was not
even close.
The Supreme Judicial Court has repeatedly held that the goals of the public
bidding structures are twofold. First, the legislature intended in setting up the public
bidding statutes to “create an open and honest competition with all bidders on equal
footing”. Interstate Engineering Corp. v. Fitchburg, 367 Mass. 751, 758 (1975). The
entities that submitted bids with respect to the snow removal project, including
Gagliarducci and Split, each proceeded with an equal understanding of the contract
requirements and the risks inherent to bid with respect to the subject package.
There were no bidders, Split included, which were on unequal footing with each
other. Rather, each of the bidders was on equal footing throughout the open and honest
competition for the work envisioned by the contract documents. “As long as bidders have
the opportunity to bid in the same way, on the same information, and to bear the same
risk of rejection, fairness and equality are preserved.” Department of Labor and
Industries of Boston v. Boston Water and Sewer, 18 Mass. App. Ct. 621, 626 (1984).
Split cannot point to any case law reported or otherwise to support its far-fetched
legal concept that STCC was required under the public bidding statutes to include
information from its prior contract within the bid specifications. There is simply no
support for that concept. The legislature has not required it in the comprehensive bid
scheme. The Commonwealth of Massachusetts Attorney General's Office Bid Protest Unit
has not required it in any of its decisions. The regulatory scheme issued by the
Commonwealth of Massachusetts, whether applicable or not, does not specifically require
5
606867.1that prior contract information be included in bid specifications. Split would have this
Court superimpose and fashion a mandatory requirement over the comprehensive bid law
regime and structure that has never before been mentioned or articulated in any form or
fashion.
In its desperation to re-bid the contract (this time armed with Gagliarducci’s low
bid price), Split cites to Environmental Waste Technology, Inc. v Massachusetts, 1995 WL
1286564 (Ma. Superior Court 1995). Environmental Waste is easily distinguishable form
our facts and has no value in the analysis. The court identified the “primary issue” as
being whether the low bidder successful engineering firm had “participated in the
environmental or engineering analysis” that became the bid specification. The issue was
whether the engineering firm wore two hats and drew the specifications for the bid and
bid and won the job. The Court narrowly held that such a dual role might violate the
conflict of interest law. Gagliarducci did not have anything to do with the bid specification
preparation at all. Moreover, due to Split’s lassitude, in this case the Gagliarducci contract
has been awarded and signed over a month ago, contrasted with Environmental Waste
where the court was able to evaluate the facts prior to an award.
The second policy goal underlying the public bidding statutes is to enable a public
contracting authority to obtain the lowest eligible bidder. With respect to the snow
removal project, STCC was able to secure fair bids for the snow plowing work. Split fully
participated in an open and fair bid process. It is crucial to note, on information and
belief, that STCC was prepared to move forward with Split if Split had the lowest
responsive bid. Split failed to submit the lowest responsive bid. If Split had submitted the
lowest responsive bid, it would not now be protesting the award of the contract and for
sure there would be no allegations of bid law impropriety.
606867.1Other than wishful thinking, blanket statements of law and unsupported theories
(which frankly do not even amount to credible factual allegations) Split has not met its
burden of showing that there has been a violation of the public bidding laws. Split has not
even articulated how, if it had the information it claims it should have had, it would have
used that information in its bid and submitted a lower price. Gagliarducci submits that
Split has not even articulated facts which would constitute a violation of the public
bidding laws even if its “theories” were true. ,
The Appeals Court has warned against any construction of the bidding statutes that
would handcuff public authorities from engaging in reasonable cost/benefit comparisons.
J. F. White Contracting Co. v. Massachusetts Port Authority, 51 Mass. App. Ct. 811, 815
(2001). In that case, the Appeals Court cautioned not to “add a prohibition to the statute
that is not contained therein”. Id., citing General Electric Co. v. Department of
Environmental Protection, 429 Mass. 798, 803 (1999). Split’s claimed interpretation
would be a radical departure from prior cases and counter-practice.
Split’s Memorandum is peppered with phrases like “it is crucial to review the prior
successful bidder breakdown”; and those numbers are “especially relevant”. Wishful
thinking or fervent hopes to see another parties’ bid do not equate to a bid violation. It
might have been useful to see those numbers but the Legislature does not mandate that it
be included in the bid package. That legal issue is the end of this court’s permissible
inquiry.
C. Split’s Wholesale Reliance on Cataldo Ambulance is Misplaced.
Splits reliance upon Cataldo Ambulance Service, Inc. v. Chelsea, 426 Mass. 383
(1998) is totally misplaced and has no bearing whatsoever on the arguments or issues
presented. In Cataldo, the Supreme Judicial Court concluded that Chelsea “breached its
606867.1contract by selecting a bid (from a bidder) that deviated substantially from the conditions
of the invitation to bid”. Buried in the dicta of the Cataldo case is a statement by the
Supreme Judicial Court that the unsuccessful bidder was not “privy to any information
that was not also available” to the other bidder. This dicta follows a long line of cases
which essentially hold that each bidder is to be looking at the exact same information
from the awarding authority when making its bid. It is unassailable logic that each
separate bidder is privy to its own information in preparing the bid. Here, of course
Gagliarducci had its own data and experience that may or may not have been helpful in
bidding the contract. So did all of the other bidders. STCC chose not to include pricing
data in the bidding documents and there is absolutely nothing in the statutory or case law
that compels STCC to do that.
D. STCC was Scrupulously Responsive to Email Requests from Split.
The email exchange wherein Split asked for information from STCC, and
which is attached to the Fydenkevez Affidavit as Exhibit C, show a robust exchange of
emails and information between STCC and Split. Almost every email request of Split was
answered immediately (on the same date) as it was sent, and provided the documents
reasonably described. The allegation that STCC was “hiding” something from Split in that
regard is the worst sort of muckraking that there is. Split tosses an unfounded allegation
out there and then requires STCC (and Gagliarducci) to disprove its veracity. Then the
ultimate absence of any responsive information is “proof” that it was hidden in the first
place. Having failed to point out a statutory bid violation in the 2015 contract bid process,
Split resorts to baseless accusations.
606867.1E. The Equities in this Matter Require Denial of the Motion.
Moreover, the equities in this matter strongly favor, indeed require, denial of the
Motion for Preliminary Injunction. Gagliarducci was the apparent low bidder at the bid
opening on September 23, 2015. Gagliarducci thereafter signed the contract presented by
STCC on October 1, 2015 and STCC countersigned the same document on October 7,
2015. There was obviously no rush to get the contract signed on the day of the bid
opening and it was fully signed and operative in the ordinary and normal course of
business. Nevertheless, Split, armed with all of the “facts” set forth in the Complaint and
Affidavit inexcusably delayed filing the present action until October 30, 3015. STCC, on
the one hand, has its snow removal contractor lined up for the winter of 2015/2016 at a
fair price. Gagliarducci, on the other hand, has made commitments and plans to staff the
contract and has committed equipment to the contract. See equipment list attachment to
the contract. Split is asking this Court to order a “rebid” of the snow removal contract
because it wanted information to which there is no statutory bid law entitlement. It
should be noted that Split also had the opportunity to file a bid protest with the
Commonwealth of Massachusetts Attorney General’s Bid Protest Unit, which typically
expedites the entire process. Split chose not to go that route, rather waiting weeks to
bring the present action. The inexcusable delay alone by Split is grounds to decline
judicial review of the contract award. See, e.g. Chiuccariello v. Building Commissioner of
Boston, 29 Mass. App. Ct. 482, 487-488 (1990).
606867.1Ill. CONCLUSION
For all the foregoing reasons, Gagliarducci respectfully requests that this Court
reject Split’s Motion for Preliminary Injunction.
THE DEFENDANT, GAGLIARDUCCI
CONSTRUCTION, INC., BY ITS ATTORNEY
By:
Michael K. Callan
Doherty, Wallace, Pillsbury & Murphy, P.C.
One Monarch Place — Suite 1900
1414 Main Street
Springfield, MA 01144-1900
Phone: (413) 733-3111
Fax: (413) 734-3910
E-mail: mcallan@dwpm.com
Dated: November 10, 2015 B.B.O. Number: 558912
CERTIFICATE OF SERVICE
I, Michael K. Callan, counsel for Gagliarducci Construction, Inc., hereby certify that
Iserved a copy of the foregoing on the parties by hand to:
John M. McLaughlin, Esquire
Green, Miles, Lipton & Fitz-Gibbon, LLP
77 Pleasant Street
P.O. Box 210
Northampton, MA 01061-0210
Bart Q. Hollander, Esquire
Office of the Attorney General
1350 Main Street — 4t Floor
Springfield, MA 01103
Dated: November 10, 2015
. Callan, Esquire
10
606867.1
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~ 45 214 «—/?, COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, ss. SUPERIOR COURT CIVIL ACTION NO. 15-214 SPLIT EXCAVATING, INC., ) Plaintiff ) ) vs. ) GAGLIARDUCCI CONSTRUCTION, : ) INC.’S MEMORANDUM OF LAW IN SPRINGFIELD TECHNICAL ) OPPOSITION TO MOTION FOR COMMUNITY COLLEGE and ) PRELIMINARY INJUNCTION _ GAGLIARDUCCI CONSTRUCTION, ) RAMASHIRE SUPER COURT INC,, ) an Defendants ) NOY £8 2015 Now comes the Defendant, Gagliarducci Construction, Inc. (“Gagliard¥ic&”)AHGOWSKI, JA, LERK / MAGISTRATE submits the following memorandum in opposition to Plaintiff, Split Excavating, Inc.’s (“Split”) Motion for Preliminary Injunction. Under the provisions of Mass. R. Civ. P. 65 and well settled case law, Split cannot show even a remote likelihood of success on the merits, let alone a reasonable likelihood of success on the merits. There was no statutory bid law violation; the equities and the law strongly favor, indeed require, that this Court not disturb the contract entered into between Gagliarducci and Springfield Technical Community College (“STCC”). There is a strong public interest favoring denial of the motion. I. UNDISPUTED FACTS Jerome Gagliarducci Jr. is employed by the Defendant, Gagliarducci Construction, Inc. (“Gagliarducci”). 1 He was personally responsible for preparing and submitting Gagliarducci’s bid to Springfield Technical Community College (“STCC”) in response to IFB 2016-11. { 2 STCC did not provide Gagliarducci with any information other than IFB 2016-11 and Addendum No. 1. Mr. Gagliarducci did not have any conversations with 606867.1anybody at STCC regarding Gagliarducci’s bid in response to IFB 2016-11 prior to its submittal. Mr. Gagliarducci did not have any written communication with anyone at STCC concerning the same. {3 Gagliarducci did not have access to, nor did it request, any information regarding any other potential bidders at any time. {1 4 On information and belief, Gagliarducci’s bid and all the associated documents concerning Gagliarducci’s performance for STCC under a prior series of contract was public information capable of being requested at any time during the duration of the contract by any party, including Split by way of a simple Freedom of Information Act request. {15 Gagliarducci submits many responses to public bid requests in the ordinary course of its business and in the course of Gagliarducci’s corporate history. Gagliarducci, and any bidder for that matter, always is privy to its own internal information in preparing a response to a bid. Similarly, Gagliarducci was not privy to Split’s internal calculations for any of its other snow removal work for other public entities. 16 Gagliarducci did not have any unfair advantage against any other bidder for the STCC IFB 2016-11. Gagliarducci was not treated differently, was not evaluated on criteria other than that set forth in the bid documentation. 17 The proposed snow removal work under IFB 2016-11 is different in scope and magnitude than the snow removal work performed by Gagliarducci under previous contracts with STCC. 8 Gagliarducci was the low bidder by several thousand dollars. Gagliarducci is obviously qualified to perform the contract for STCC having done so for similar snow removal work at a fair price in the past. 119 All sealed bids were publicly opened per the bid specifications at STCC on September 23, 2015 at 1:00 p.m. At that time the prices provided by all bidders, including 2 606867.1| Gagliarducci’s, were unsealed and evaluated by STCC. Gagliarducci was announced at that public bid opening as the low bidder. Asa result Gagliarducci was awarded the contract. {11 After being awarded the snow removal work, on October 7, 2015, Gagliarducci received a signed contract from STCC. See Exhibit A, Gagliarducci Affidavit 12 In reliance upon the execution of that contract, Gagliarducci has made equipment and personnel commitments for the winter of 2015-2016 and going forward. The first notice that Gagliarducci received of Split complaining about the process was by email dated November 2, 2015 at 2:24 p.m. approximately twenty six (26) days after the contract was signed and forty (40) days after the bid opening. 4113 II. LAW AND ARGUMENT A. Preliminary Injunction Standard Under the standard, In order to prevail on its motion for injunctive relief, Split bears the burden of showing: a likelihood of success on the merits; that it will suffer irreparable harm if the injunctive relief sought is not granted; and that its harm, without the injunction, outweighs any harm to Gagliarducci being enjoined. Boston Police Patrolmen's Ass'n, Inc. v. Police Dept. of Boston, 446 Mass. 46, 49-50 (2006); GTE Products Corp. v. Stewart, 414 Mass. 721, 722-23 (1993); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980). Also, this is one of those cases in which the risk of harm to the public interest must ‘be considered. Commonwealth v. MassCRINC, 392 Mass. 79, 87 (1984); Brookline v. Goldstein, 388 Mass. 443, 447 (1983). See also Diebold Election Systems, Inc. v. William F. Galvin, Suffolk Super. Ct., C.A. No. 07-1129 BLS1 (March 27, 2007) [22 Mass. L. Rptr. 606867.1301]; Cubic Transportation Systems, Inc. v. MBTA, Suffolk Super. Ct., C.A. No. 02-5412 BLS1 (December 12, 2002). The burden of showing likelihood of success on the merits is on Split which seeks the injunction, not on Gagliarducci and STCC, which oppose it. Robinson v. Secretary of Administration, 12 Mass. App. Ct. 441, 451(1981). Injunctive relief either by way of a temporary restraining order or by a preliminary injunction implicates a power of equity which should be exercised delicately. It should not be exercised routinely and the Court should refuse to grant such relief unless the circumstances require it. Nolan and Sartario, Equitable Remedies, 31 M.P.S. sec. 139 (1993). B. There is no Evidence that STCC Violated the Public Bidding Statutes and Split has No Reasonable Prospect to Succeed on the Merits at Trial Turning to the matter before the Court, STCC followed the public bidding statutes in bidding the work with respect to the current snow removal contract. What is missing in Split’s Complaint, and in any of the moving papers, is any clear articulation of how Split claims that STCC violated the public bidding statutes. An examination of the case law, and the policies surrounding the public bidding statutes reveal that STCC strictly followed the public bidding statutes and that each of STCC’s actions had been consistent with the clear policy directives embodied in the bidding statutes and articulated by the Supreme Judicial Court of Massachusetts. There is no allegation of bid irregularity. E. Amanti & Sons, Inc. v. Town of Barnstable, 42 Mass. App. Ct. 773, 776 (1987). Split does not claim that the bid documents dealt it a disadvantage from other bidders. Split does not claim that it was the low bidder for the snow removal project. Split cannot, and does not, claim that there was 4 606867.1any collusion between Gagliarducci and STCC. Split cannot, and does not, claim that STCC acted arbitrarily or with favoritism. Split cannot claim that the contract was awarded based upon any subjective factors. Gagliarducci had the low bid, and it was not even close. The Supreme Judicial Court has repeatedly held that the goals of the public bidding structures are twofold. First, the legislature intended in setting up the public bidding statutes to “create an open and honest competition with all bidders on equal footing”. Interstate Engineering Corp. v. Fitchburg, 367 Mass. 751, 758 (1975). The entities that submitted bids with respect to the snow removal project, including Gagliarducci and Split, each proceeded with an equal understanding of the contract requirements and the risks inherent to bid with respect to the subject package. There were no bidders, Split included, which were on unequal footing with each other. Rather, each of the bidders was on equal footing throughout the open and honest competition for the work envisioned by the contract documents. “As long as bidders have the opportunity to bid in the same way, on the same information, and to bear the same risk of rejection, fairness and equality are preserved.” Department of Labor and Industries of Boston v. Boston Water and Sewer, 18 Mass. App. Ct. 621, 626 (1984). Split cannot point to any case law reported or otherwise to support its far-fetched legal concept that STCC was required under the public bidding statutes to include information from its prior contract within the bid specifications. There is simply no support for that concept. The legislature has not required it in the comprehensive bid scheme. The Commonwealth of Massachusetts Attorney General's Office Bid Protest Unit has not required it in any of its decisions. The regulatory scheme issued by the Commonwealth of Massachusetts, whether applicable or not, does not specifically require 5 606867.1that prior contract information be included in bid specifications. Split would have this Court superimpose and fashion a mandatory requirement over the comprehensive bid law regime and structure that has never before been mentioned or articulated in any form or fashion. In its desperation to re-bid the contract (this time armed with Gagliarducci’s low bid price), Split cites to Environmental Waste Technology, Inc. v Massachusetts, 1995 WL 1286564 (Ma. Superior Court 1995). Environmental Waste is easily distinguishable form our facts and has no value in the analysis. The court identified the “primary issue” as being whether the low bidder successful engineering firm had “participated in the environmental or engineering analysis” that became the bid specification. The issue was whether the engineering firm wore two hats and drew the specifications for the bid and bid and won the job. The Court narrowly held that such a dual role might violate the conflict of interest law. Gagliarducci did not have anything to do with the bid specification preparation at all. Moreover, due to Split’s lassitude, in this case the Gagliarducci contract has been awarded and signed over a month ago, contrasted with Environmental Waste where the court was able to evaluate the facts prior to an award. The second policy goal underlying the public bidding statutes is to enable a public contracting authority to obtain the lowest eligible bidder. With respect to the snow removal project, STCC was able to secure fair bids for the snow plowing work. Split fully participated in an open and fair bid process. It is crucial to note, on information and belief, that STCC was prepared to move forward with Split if Split had the lowest responsive bid. Split failed to submit the lowest responsive bid. If Split had submitted the lowest responsive bid, it would not now be protesting the award of the contract and for sure there would be no allegations of bid law impropriety. 606867.1Other than wishful thinking, blanket statements of law and unsupported theories (which frankly do not even amount to credible factual allegations) Split has not met its burden of showing that there has been a violation of the public bidding laws. Split has not even articulated how, if it had the information it claims it should have had, it would have used that information in its bid and submitted a lower price. Gagliarducci submits that Split has not even articulated facts which would constitute a violation of the public bidding laws even if its “theories” were true. , The Appeals Court has warned against any construction of the bidding statutes that would handcuff public authorities from engaging in reasonable cost/benefit comparisons. J. F. White Contracting Co. v. Massachusetts Port Authority, 51 Mass. App. Ct. 811, 815 (2001). In that case, the Appeals Court cautioned not to “add a prohibition to the statute that is not contained therein”. Id., citing General Electric Co. v. Department of Environmental Protection, 429 Mass. 798, 803 (1999). Split’s claimed interpretation would be a radical departure from prior cases and counter-practice. Split’s Memorandum is peppered with phrases like “it is crucial to review the prior successful bidder breakdown”; and those numbers are “especially relevant”. Wishful thinking or fervent hopes to see another parties’ bid do not equate to a bid violation. It might have been useful to see those numbers but the Legislature does not mandate that it be included in the bid package. That legal issue is the end of this court’s permissible inquiry. C. Split’s Wholesale Reliance on Cataldo Ambulance is Misplaced. Splits reliance upon Cataldo Ambulance Service, Inc. v. Chelsea, 426 Mass. 383 (1998) is totally misplaced and has no bearing whatsoever on the arguments or issues presented. In Cataldo, the Supreme Judicial Court concluded that Chelsea “breached its 606867.1contract by selecting a bid (from a bidder) that deviated substantially from the conditions of the invitation to bid”. Buried in the dicta of the Cataldo case is a statement by the Supreme Judicial Court that the unsuccessful bidder was not “privy to any information that was not also available” to the other bidder. This dicta follows a long line of cases which essentially hold that each bidder is to be looking at the exact same information from the awarding authority when making its bid. It is unassailable logic that each separate bidder is privy to its own information in preparing the bid. Here, of course Gagliarducci had its own data and experience that may or may not have been helpful in bidding the contract. So did all of the other bidders. STCC chose not to include pricing data in the bidding documents and there is absolutely nothing in the statutory or case law that compels STCC to do that. D. STCC was Scrupulously Responsive to Email Requests from Split. The email exchange wherein Split asked for information from STCC, and which is attached to the Fydenkevez Affidavit as Exhibit C, show a robust exchange of emails and information between STCC and Split. Almost every email request of Split was answered immediately (on the same date) as it was sent, and provided the documents reasonably described. The allegation that STCC was “hiding” something from Split in that regard is the worst sort of muckraking that there is. Split tosses an unfounded allegation out there and then requires STCC (and Gagliarducci) to disprove its veracity. Then the ultimate absence of any responsive information is “proof” that it was hidden in the first place. Having failed to point out a statutory bid violation in the 2015 contract bid process, Split resorts to baseless accusations. 606867.1E. The Equities in this Matter Require Denial of the Motion. Moreover, the equities in this matter strongly favor, indeed require, denial of the Motion for Preliminary Injunction. Gagliarducci was the apparent low bidder at the bid opening on September 23, 2015. Gagliarducci thereafter signed the contract presented by STCC on October 1, 2015 and STCC countersigned the same document on October 7, 2015. There was obviously no rush to get the contract signed on the day of the bid opening and it was fully signed and operative in the ordinary and normal course of business. Nevertheless, Split, armed with all of the “facts” set forth in the Complaint and Affidavit inexcusably delayed filing the present action until October 30, 3015. STCC, on the one hand, has its snow removal contractor lined up for the winter of 2015/2016 at a fair price. Gagliarducci, on the other hand, has made commitments and plans to staff the contract and has committed equipment to the contract. See equipment list attachment to the contract. Split is asking this Court to order a “rebid” of the snow removal contract because it wanted information to which there is no statutory bid law entitlement. It should be noted that Split also had the opportunity to file a bid protest with the Commonwealth of Massachusetts Attorney General’s Bid Protest Unit, which typically expedites the entire process. Split chose not to go that route, rather waiting weeks to bring the present action. The inexcusable delay alone by Split is grounds to decline judicial review of the contract award. See, e.g. Chiuccariello v. Building Commissioner of Boston, 29 Mass. App. Ct. 482, 487-488 (1990). 606867.1Ill. CONCLUSION For all the foregoing reasons, Gagliarducci respectfully requests that this Court reject Split’s Motion for Preliminary Injunction. THE DEFENDANT, GAGLIARDUCCI CONSTRUCTION, INC., BY ITS ATTORNEY By: Michael K. Callan Doherty, Wallace, Pillsbury & Murphy, P.C. One Monarch Place — Suite 1900 1414 Main Street Springfield, MA 01144-1900 Phone: (413) 733-3111 Fax: (413) 734-3910 E-mail: mcallan@dwpm.com Dated: November 10, 2015 B.B.O. Number: 558912 CERTIFICATE OF SERVICE I, Michael K. Callan, counsel for Gagliarducci Construction, Inc., hereby certify that Iserved a copy of the foregoing on the parties by hand to: John M. McLaughlin, Esquire Green, Miles, Lipton & Fitz-Gibbon, LLP 77 Pleasant Street P.O. Box 210 Northampton, MA 01061-0210 Bart Q. Hollander, Esquire Office of the Attorney General 1350 Main Street — 4t Floor Springfield, MA 01103 Dated: November 10, 2015 . Callan, Esquire 10 606867.1