E.H. Perkins Construction, Inc. v. Town of Lincoln

Milkey, J. In February of 2009, the town of Lincoln (town) solicited bids on a road paving project. The town eventually awarded the contract to Sunshine Paving Corp. (Sunshine), which had submitted the lowest bid. To award the contract to Sunshine, the town had to waive a prequalification requirement that had been included in the bid documents (regarding the scale of the projects on which bidders had previously worked). E.H. Perkins Construction, Inc. (Perkins), a competitor of Sunshine, also bid on the contract. After the town stated its intent to award the contract to Sunshine, Perkins filed an action in Superior Court seeking to contest the town’s intended course of action. Its complaint, which remains pending in Superior [209] Court, alleges that the town’s waiver of the prequalification requirement violated the public bidding laws. The complaint requested injunctive relief and reimbursement of Perkins’s bid preparation costs. After a Superior Court judge granted Perkins’s request for a preliminary injunction staying the process, the town filed a petition for interlocutory review pursuant to G. L. c. 231, § 118, first par., seeking to dissolve the preliminary injunction (so as to allow the awarding of the contract and the paving project itself to move forward). A single justice of this court granted that petition on June 11, 2009, and Perkins now appeals that order pursuant to G. L. c. 231, § 118, second par.1 See T & D Video, Inc. v. Revere, 423 Mass. 577, 580 (1996). The current appeal presents the narrow question whether the single justice abused her discretion in addressing the preliminary relief issues.2 See Aspinall v. Philip Morris Cos., 442 Mass. 381, 389-390 (2004). The town awarded the paving contract to Sunshine, and the project has long since moved forward.3 Perkins implicitly acknowledged in its brief that it has no interest in whether the preliminary injunction is reinstated, and it expressly acknowledged at oral argument that the question of injunctive relief is at this point purely “academic.” Perkins seeks to transform the current limited appeal into a vehicle for resolving the underlying merits, which remain pending in Superior Court. That case is still alive, because Perkins is seeking to recover its bid preparation costs. The initial question we face is whether the appeal before us is moot. “Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome.” Blake v. Massachusetts Parole Bd., 369 Mass. 701, [210] 703 (1976). Although Perkins has a personal stake in the underlying merits, the current appeal is limited to whether the preliminary injunction should be reinstated. Where Perkins has conceded that it has only an “academic” interest in that question, the current appeal is moot and should be dismissed.4 This is not to say that the underlying merits do not warrant judicial review. Indeed, we agree with our concurring colleague that the substantive issues that Perkins seeks to raise are important ones that merit judicial examination. That review, however, should occur first in the trial court, with any appellate review to follow entry of final judgment.5 Appeal dismissed. Footnotes [1] Perkins moved to stay the single justice’s order, and the single justice denied that motion. Perkins has not challenged that ruling. [2] Answering that question would require us to examine not only the single justice’s assessment of Perkins’s likelihood of success on the merits, but other factors as well, including whether the preliminary relief “promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public.” Loyal Order of Moose, Inc., Yarmouth Lodge #2270 v. Board of Health of Yarmouth, 439 Mass. 597, 601 (2003), quoting from Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). [3] According to the town, most of the project had actually been completed by the time the town filed its brief on September 29, 2009. [4] As the concurring opinion highlights, Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 395 (1994), recognizes our ability to reach the underlying merits even in this context. Regardless of whether we have that power, however, we think it would be improvident to use it here, where the underlying case remains pending in the Superior Court and provides a better mechanism, including full fact finding if necessary, for an initial resolution of the merits. [5] We see no reason why any remaining proceedings in the trial court could not be completed expeditiously, given that the case seems tailor-made for summary judgment. If there are material facts in dispute, that is even more reason why review should occur in the ordinary course. Nothing in our opinion should be read as tying the hands of the lower court judge in addressing the merits, and we respectfully disagree with the statement in the concurring opinion that without our addressing the underlying merits now, “it is unlikely that the trial court will award bid preparation costs.”