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TROY WALL ASSOCIATES ATTORNEYS AND COUNSELLORS AT LAW COMMONWEALTH OF MASSACHUSETTS Superior Court Docket No. 08-04641. Defendant, Town of Duxbury's, Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment.
TROY WALL ASSOCIATES ATTORNEYS AND COUNSELLORS AT LAW COMMONWEALTH OF MASSACHUSETTS Superior Court Docket No. 08-04641. Defendant, Town of Duxbury's, Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment.
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TROY WALL ASSOCIATES ATTORNEYS AND COUNSELLORS AT LAW COMMONWEALTH OF MASSACHUSETTS Superior Court Docket No. 08-04641. Defendant, Town of Duxbury's, Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment.
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c/o Patricia M. McCann Middlesex Superior Court 200 Trade Center Woburn, MA 01801
Re: Johnson Golf Management, Inc. v. Town of Duxbury, et al.
Middlesex Superior Court Docket No. 08-04641
Dear Ms. McCann:
Enclosed herewith for filing please find the following:
1. Defendant, Town of Duxbury's, Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment;
2. Defendant, Town of Duxbury's, Memorandum III Support of Emergency Motion for Reconsideration;
3. Affidavit of Gordon H. Cushing; and
4. Certificate of Service.
Thank you.
Very truly yours,
Robert S. Troy Duxbury Town Counsel
RST/avd
Cc: Town Manager
Recreation Director Stephen R. Follansbee, Esq. John J. Geary, Esquire
E. David Edge, Esquire
PHONE: (508) 888-5700 • FACSIMILE: (508) 888-5701
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
COMMONWEALTH OF MASSACHUSETTS
Middlesex, SS.
Superior Court Docket No. 08-04641
) ) ) ) ) ) ) ) ) ) ) ) ) and GORDON CUSHING (EX OFFICIO), ) CALM GOLF, INC. and CHARLES LANZETTA)
Defendants )
---------------------------------)
JOHNSON GOLF MANAGEMENT, INC.
Plaintiff,
v.
TOWN OF DUXBURY, and NORTH HILL ADVISORY COMMITTEE, consisting of MICHAEL DOOLIN, CHAIRMAN, SCOTT WHITCOMB,
ROBERT M. MUSTARD, JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO, MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD,
DEFENDANT, TOWN OF DUXBURY'S, EMERGENCY MOTION FOR RECONSIDERATION
Now comes the Defendant, Town of Duxbury (the "Town"), and
hereby respectfully moves this Honorable Court to Reconsider its
Decision and Order on the Town's Motion for Summary Judgment. In
support of this Motion, the Town submits the accompanying
Memorandum of Law and Affidavit of Gordon H. Cushing.
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A ;ANDWICH. MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
DATED: December l, 2010
Respectfully submitted, F or the Defendant, Town of Duxbury,
By its Attorney,
Robert S. Troy Duxbury Town Counsel Troy Wall Associates 90 Route 6A
Sandwich, MA 02563 BBO#503160
(508) 888-5700
2
COMMONWEALTH OF MASSACHUSETTS
Ii
ii
II Middlesex, SS. II
,1
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II
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iii -JO-HN-S-O-N-G-O-L-F-M-A-N-A-G-E-M-E-N-T-,-IN-C-.---)
Ii I' iff
Ii P ainti , )
) ) ) ) ) ) ) ) ) ) ) and GORDON CUSHING (EX OFFICIO), )
CALM GOLF, INC. and CHARLES LANZETTA)
Defendants )
---------------)
Superior Court Docket No. 08-04641
)i
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:i V.
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Ii TOWN OF DUXBURY, and NORTH HILL
I: ADVISORY COMMITTEE, consisting of
:; MICHAEL DOOLIN, CHAIRMAN,
SCOTT WHITCOMB,
ROBERT M. MUSTARD, JR., MICHAEL ~BOROUGH,ANTHONYFLOREANO, MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD,
DEFENDANT, TOWN OF DUXBURY'S, MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR RECONSIDERATION
Now comes the Defendant, Town of Duxbury (the "Town"), and
hereby respectfully submits this Memorandum in Support of Emergency
Motion for Reconsideration of the Court's Decision and Order on the
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A INDWICH, MASSACHUSETTS
Town's Motion for Summary Judgment.
02563-1866
PHONE: (508) 888-5700
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
ANDWICH. MASSACHUSETTS
02563-1866
PHONE, (508) 888-5700
INTRODUCTION
On November 24, 2010, the Court issued a Memorandum of Decision
and Order on Defendants' Motion for Summary Judgment (the
"Decision") denying the Town's Motion for Summary Judgment and
reinstating the Preliminary Injunction originally issued on February 3,
2009. In its Decision, the Court held the following:
1. That G.L. c. 30B provides a private right of action for
disappointed bidders;
2. That the Town acted in bad faith in rejecting all proposals
pursuant to the first RFP, and that the Town acted in bad faith in
awarding the contract to Calm Golf pursuant to the second RFP;
3. That there is a triable issue as to Johnson Golfs implied contract
claims; and
4. That the Town's alleged bad faith makes the Town liable pursuant
to G.L. c. 93A.
The Town asserts that the Court's findings are based on errors of
fact and law. Specifically, the Court's Decision is erroneous because:
2
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
1. There is no evidence of bad faith on behalf of the Town because
the Town strictly adhered to the requirements of G.L. c. 30B in
rejecting the first round of proposals, reissuing the RFP, and
awarding the contract;
2. The Town's decision to revoke the award of the contract to Calm
Golf and reject all bids has vitiated Johnson Golfs cause of
action;
3. The Court's determination that G.L. c. 30B grants disappointed
bidders a private right of action is rebutted by the clear language
ofG.L. c. 30B;
4. The Court denied Summary Judgment as to Johnson Golfs
implied contract claims on the grounds that the Town Manager
acted in bad faith;
5. The Town cannot be held liable under G.L. c. 93A for exercising
its statutory authority with respect to the procurement process
pursuant to G.L. c. 30B; and
6. The Court has no jurisdiction over this matter because venue for
this action is improper.
3
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A ANDWICH. MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
For the following reasons, the Town respectfully requests that the
Court reconsider its Decision. 1
I The Court's Decision is replete with characterizations about Calm Golf that are inaccurate, such as the amount of its bid. The Court also indulges in semantics by failing to recognize that Calm Golf is a corporation that amalgamates the qualifications of two individuals who have extensive experience in managing golf courses for over twenty years. Hence, the Court's suggestion that Calm Golf "in fact had only managed one course, from March to August of 2003, just following its incorporation" is a technical interpretation that ignores the criteria evaluation standards for "relevant experience" that require that "The proposer and his/her firm has managed more than one income generating municipal golf course operation ... for a period of at least three years." In Calm Golfs materials, it clearly states that Charlie Lanzetta has "Operated Rockland G.C. since 1978" and has "30 years experience overseeing Golf course operations." The Court's conclusion here invites inquiry as it hauntingly mimics the allegations made by Johnson.
Likewise, the finding that Calm Golf has no equipment is rebutted by the fact that the RFP requires "a detailed list of maintenance equipment that your firm will use .. " The Court concludes "It also had no equipment for the operation and management of a golf course." The RFP makes it clear that no equipment is required at the time the bid is submitted but a list of the equipment that will be supplied when the contract begins must be submitted. Calm Golf did this. Here, the Court's analysis is equally troubling because its analysis of the requirements would leave Johnson Golf as the only bidder that had equipment, cash and experience. Finally, the Court repeats Johnson's contention that "Calm Golf .. had only $169.000 in assets at the time of its application. The RFP makes it clear that no minimum assets were required. Even a cursory analysis of the category "Financial Information" demonstrates that documents - not cash assets - are required.
The Court's focus on these facts is quixotic since the Court had been informed by the Town Manager's Affidavit well before the November 24,2010 Summary Judgment Decision that the Town had decided to reject all bids and rebid the RFP. This fact made the factual findings in the Decision inconsequential. However, it should be observed that the Judge's reading of the RFP would require that the successful bidder be an operator of golf courses with a current inventory of equipment and cash assets. It is clear that only Johnson could meet the RFP criteria under the Court's interpretation and this would be a blatant proprietary procurement.
4
ARGUMENT
I. THE TOWN MANAGER'S DECISION TO REJECT ALL PROPOSALS SUBMITTED IN RESPONSE TO THE FIRST RFP IS AUTHORIZED BY G.L. C. 30B, § 9.
In Section 2 of the Decision, the Court determined that "[t]here is
significant evidence in the record to suggest that the defendant did not
act in good faith in rejecting all of the proposals pursuant to the first
RFP." The Court's Decision suggests that this finding is based on
allegations that (1) the Town Manager did not explain why he decided to
reject all bids rather than ask the evaluators to submit composite scores;
and (2) the Town Manager failed to meet the requirements of G.L. c.
30B, § 9 by failing to explain his reasoning in writing. The applicable
provisions of G.L. c. 30B and the record do not support these
conclusions.
Section 9 of G.L. c. 30B provides, "[t]he procurement officer may
cancel an invitation for bids, a request for proposals, or other
solicitation, or may reject in whole or in part any and all bids or
proposals when the procurement officer determines that cancellation or
TROYWALL ASSOCIATES
ATTORNEYS AND rejection serves the best interests of the governmental body. The
COUNSELLORS AT LAW
90 ROUTE 6A
\NOWIOi, MASSACHUSETTS
02563-1866
PHONE: (508) 888-5700
procurement officer shall state in writing the reason for a cancellation or
5
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A >ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
rejection." By its terms, Section 9 gives the procurement officer broad
discretion in deciding to reject bids and the only requirements are that
the procurement officer determines that it is in the public interest to
reject the bids and put the reasons for doing so in writing.
In this instance, the Town Manager determined that two of the
three evaluators failed to comply with the Criteria Evaluation Standards
set forth in the RFP and that the process failed to meet the requirements
of G.L. c. 30B. The Town Manager was required by G.L. c. 30B, § 6( d)
to reject all of the bids because the price proposals had been opened and
one of the evaluators knew the respective price components of the bids
before composite scores were able to be obtained from the evaluators.
The Inspector General's Guidelines require that the evaluators not be
informed of the price proposal until after the non-price criteria are
evaluated.' The Town Manager determined that the evaluation process
failed to meet the requirements set forth in G.L. c. 30B, § 6 and therefore
2 According to the Inspector General's Procurement Manual: "Y ou may open the price proposals immediately after opening the technical proposals or at a later time. However, be sure that you do not disclose the price proposals to the non-price proposal evaluator( s) until they have completed their evaluations ... The separation of technical and price proposals is an important element of the RFP process." And, again: "As previously noted, the individual(s) chosen to evaluate the technical, or non-price, proposals may not see the price proposals until the evaluation of the technical proposals is complete."
6
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A >ANDWICH. MASSACHUSETTS 02563-1866
PH ONE: (508) 888-5700
the Town correctly exercised its right to reject all bids pursuant to G.L.
c. 30B, § 9.
The Court has questioned why the Town Manager did not "pursue
the obvious solution, which was to ask the evaluators to submit
composite scores." In proposing an alternative to the Town's course of
action, the Court has essentially substituted its judgment for that of the
Town Manager and ignored the clear mandates of G.L. c. 30B regarding
the evaluation of bids and the Town Manager's authority to reject bids.
The fact that the price proposals were known to one of the evaluators
prior to the completion of the composite score evaluations supports the
Town Manager's decision to rebid the procurement and do it right.
Contrary to the Court's determination, the Town Manager was required
to reject all bids and issue a new RFP upon making a determination that
the evaluation process failed to meet the requirements of G.L. c. 30B, §
6. See G.L. c. 30B, § 6(d). The Town Manager acted properly within the
scope of his authority in rejecting the bids and issuing a new RFP.
The Court also found that the Town Manager failed to meet the
requirements of G.L. c. 30B, § 9 by failing to explain his reasons for
rejecting all bids in writing, and that this "suggests a rush to judgment to
7
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW 90 ROUTE 6A >ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
prevent the plaintiff from being awarded the contract." Contrary to the
Court's finding, the Town Manager did provide written notice of
rejection to the bidders. Copies of the notices of rejection are attached
hereto as Exhibit "A." The Town Manager informed each bidder that the
Town elected to exercise its right to reject all bids submitted in response
to the RFP because "it is in the public interest to do so." See Exhibit
"A."
There is no provision under G.L. c. 30B, § 9 that requires an
awarding authority to provide a detailed statement of its reasons for
rejection; Section 9 only requires that the "procurement officer shall
state in writing the reason for a cancellation or rejection." The Town
Manager satisfied this requirement and the Court does not have the
authority to substitute its judgment of the contents of the rejection
notices for that of the Town.
II. THE COURT'S DETERMINATION THAT THE TOWN ACTED IN BAD FAITH IN AWARDING THE CONTRACT TO CALM GOLF IS ERRONEOUS.
The Court's determination that the Town acted arbitrarily or in
bad faith in awarding the contract to Calm Golf is erroneous and reflects
a lack of understanding of the municipal procurement process. The
8
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
9() ROUTE 6A
WDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
Court's basis for this finding is that Calm Golfs experience, assets, and
lack of golf equipment at the time the award was made rendered its
proposal less appealing than Johnson Golfs proposal, and that the Town
should have known about Calm Golfs lack of assets. Analysis of G.L. c.
30B and the role that the procurement officer plays in the procurement
process establishes that the Court erred in determining that the Town
acted in bad faith in awarding the contract to Calm Golf.
The proposals received in response to the second RFP were
evaluated by three (3) independent evaluators. Once these evaluations
were completed, they were provided to the Town Manager. Pursuant to
G.L. c. 30B, § 6(g), "[t]he chief procurement officer shall determine the
most advantageous proposal from a responsible and responsive offeror
taking into consideration price and the evaluation criteria set forth in the
request for proposals." The function of the Town Manager is not to re-
evaluate the proposals or second-guess the evaluators' composite scores.
Rather, the Town Manager is responsible for comparing the evaluated
non-price proposals and price proposals and awarding the contract to the
responsible and responsive bidder that offered the best price.
9
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
iANDWICH. MASSACHUSETTS
02563-1866
PHONE: (508) 888-5700
After reviewing the evaluations, the Town Manager opened the
pnce proposals and awarded the contract to the responsible and
responsive bidder that offered the best price, as required by G.L. c. 30B,
§ 6. Section 6 requires that the contract be awarded to the responsible
bidder that offers the best price; if the contract was awarded to an offeror
who did not submit the highest price, the Town Manager would have
explain the reasons for the award in writing. 3
Under the Court's rationale, the Town Manager must examine the
underlying proposals and make an independent determination
(independent of the evaluators) as to the veracity of the information
submitted in the non-price proposals. This interpretation of the role of
the procurement officer in the procurement process is contrary to the
requirements of G.L. c. 30B, § 6, which gives the evaluators the
responsibility of determining what proposals meet the evaluation criteria
set forth in the RFP. The Town Manager's reliance on the evaluations
provided by the independent evaluators is required by G.L. c. 30B, § 6
and therefore cannot be considered bad faith.
3 The Town Manager followed the required process and provided written notification of the reasons that the Town "by-passed" the bids of Gunnarson, Daley & Stiles, and Eagles Nest Tree & Landscape.
10
TROY WALL ASSOCIATES ATTORNEYS AND
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90 ROUTE 6A
iANDWICH, MASSACHUSETTS
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PHONE: (508) 888-5700
III. THE TOWN'S DECISION TO REVOKE THE AWARD TO CALM GOLF AND REJECT ALL BIDS HAS RENDERED JOHNSON GOLF'S COMPLAINT MOOT.
Johnson Golfs Complaint is premised upon the allegation that the
contract for the management of North Hill was wrongfully awarded to
Calm Golf. The Town has now terminated the procurement process and
rescinded the award to Calm Golf and rejected all bids. The Town has
exercised its authority pursuant to G.L. 30B and in doing so, has vitiated
Johnson Golfs cause of action against the Town.
The Inspector General's Procurement Guide, Municipal, County,
District, and Local Authority Procurement Of Supplies, Services, and
Real Property ("Inspector General's Procurement Manual"), confirms
that the Procurement Officer has the right to reject any and all bids at
any time prior to the execution of the contract if the procurement officer
determines that such action is in the best interest of the jurisdiction. The
Town has not executed a contract with Calm Golf and therefore has the
right to rej ect all bids if it is in the best interest of the Town.
The Town Manager has determined that it is in the Town's best
interest to reject any and all bids. In this instance, the procurement
process and subsequent litigation have created a Kafkaesque situation
11
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
iANDWICH, MASSACHUSETIS
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PHONE: (508) 888-5700
under which a municipally owned golf course has been managed under
Court Order for nearly two years. This litigation has caused the Town to
incur substantial legal costs and now threatens the operation of North
Hill for the 2011 season. Paralysis of the membership process, public
confidence issues, confusion and uncertainty now threaten to close North
Hill.
The Town has revoked the award to Calm Golf and intends to
reissue a "30B" Procurement. In the event it is determined that the
procurement process under G.L. c. 30B provides a private cause of
action for equitable and injunctive relief, then the Town is prepared to
take over the operation and management of North Hill in order to
obviate the problems relating to expense and operational integrity that
this case has created. There is no longer an actual controversy for the
Court to decide, and therefore, Johnson Golfs claims against the Town
are no longer justiciable.
IV. THE UNIFORM PROCUREMENT ACT DOES NOT PROVIDE DIAPPOINTED BIDDERS WITH A PRIVATE RIGHT OF ACTION.
The Town asserts that there is no private cause of action
empowermg a disgruntled bidder from utilizing Chapter 30B of
12
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
ANDWICH, MASSACHUSETTS
02563-1866
PHONE: (508) 888-5700
Massachusetts General Laws to contest an award that results from a
Procurement process. It is clear that the terms of Chapter 30B place all
of the responsibility and discretion relating to enforcement in the Office
of Inspector General. Creation of a private cause of action could have the
effect of diluting legislative intent in centralizing enforcement of
procurement processes in a state agency.
In its Decision, the Court determined that "[i]t is clear that the
enforcement of the Uniform Procurement Act does not lie exclusively in
the hands of the Inspector General; a group of ten taxpayers may also
challenge the bidding process pursuant to G.L. c. 40, s.53." Contrary to
the Court's conclusion, this statement supports the Town's contention
that G.L. c. 30B does not empower disgruntled bidders to bring a private
cause of action. The ten taxpayer remedy is a legislative remedy
embodied in statute; there is no similar statute that grants private parties
or aggrieved bidders a right to contest a municipal procurement.
The Town's contention that G.L. c. 30B does not provide a private
right of action is further supported by the fact that a municipality is not
obligated to award a contract as a result of the procurement process. The
procurement officer has sole discretion to cancel an RFP or reject bids if
13
TROYWALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
in the best interest of the municipality. See G.L. c. 30B, § 9. No bidder,
even a successful bidder, is entitled to a contract as a result of a
procurement process; the decision to award the contract lies with the
procurement officer. Similarly, the submission of a bid does not
empower the bidder with any legal rights under G.L. c. 30B. Clearly, a
disappointed bidder is not entitled to injunctive relief since neither the
statute nor common law bestows any legal rights on a participant in the
bidding process. The Court's interpretation of G.L. c. 30B violates
public policy because it allows disappointed bidders to frustrate the
, procurement process, preventing a municipality from exercising its right
to enter into procurement contracts with entities it deems responsible.
Put bluntly, the Court's interpretation would prevent municipalities from
making procurements and cripple municipal government by stripping it
of the finality that is the sine qua non of acquiring goods and services.
The Court's interpretation of G.L. c. 30B also requires the Courts
to make the determination as to what contracts a municipality may enter
into. Although the Court provides that "a suitably deferential standard of
review will prevent courts from substituting their own judgments for
those of municipal officials," it appears that the Court has not applied a
14
TROYWALL ASSOCIATES ATTORNEYS AND
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deferential standard of review in this case and has in fact impermissibly
substituted its judgment for that of the Town.
V. THE COURT ERRED IN DENYING SUMMARY JUDGMENT AS TO JOHNSON GOLF'S IMPLIED CONTRACT CLAIMS BECAUSE THERE IS NO EVIDENCE OF BAD FAITH ON BEHALF OF THE TOWN.
The Court's sole basis for denying Summary Judgment as to
Johnson Golfs implied contract claims is that the Town acted in bad
faith in rejecting the first round of proposals and awarding the contract
to Calm Golf after the second RFP. For the reasons set forth above, the
Court's findings of bad faith are erroneous.
Assuming, arguendo, that an implied contract was formed, the
Town cannot be held liable for Johnson Golfs bid preparation costs or
for lost profits because the Town exercised its statutory in rejecting the
first round of proposals and making the award to Calm Golf after the
second round of proposals.
VI. JOHNSON GOLF HAS NO CAUSE OF ACTION AGAINST THE TOWN PURSUANT TO G.L. C. 93A.
The Court determined that the Town's alleged bad faith
02563-1866
90 ROUTE 6A
'.NDWICH, MASSACHUSETIS constitutes "unfair or deceptive acts" within the meaning of G.L. c. 93A
PHONE: (508) 888-5700
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and that the Town was engaged in trade or commerce, thus subjecting
the Town to liability under G.L. c. 93A, § 11. The Court's analysis
focuses on the issue of whether the Town was acting "in a business
context" by issuing a procurement for the management of a municipally
owned golf course. Regardless of whether the Town was acting in a
"business context," the Town did not act in bad faith and strictly
followed the procurement requirements set forth in G.L. c. 30B.
In determining that the Town is engaged in trade or commerce by
virtue of the issuance of a request for proposals and the subsequent
termination of the procurement process, the Court is essentially holding
that the Town may be liable to a disappointed bidder under G.L. c. 30B
and G.L. c. 93A despite the fact that the Town has no obligation to
award a contract to a bidder in the first place. Under the Court's analysis,
the municipal procurement process, by which a municipality is required
to obtain the most favorable price for goods and services, constitutes
trade or commerce within the meaning of G.L. c. 93A.
The Court held that "the town's primary motivation for leasing the
golf course is to earn a profit. .. " This assertion is speculative. The
purpose of hiring a golf management company to run the course is to
16
TROYWALL ASSOOIATES ATTORNEYS AND
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90 ROUTE 6A
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provide area residents with a quality municipal golf course for the
public's use and enjoyment.
VII. THE COURT DOES NOT HA VE JURISDICTION OVER THIS MATTER BECAUSE VENUE IS IMPROPER.
Generally, venue is appropriate in the judicial district where either
party may sue or be sued. M.G.L. ch. 223 § 8. This is typically where
either party has a principal place of business, or where the events
resulting in the lawsuit took place. In this case, all of the parties reside
and/or have principal places of business in Plymouth County. The events
leading up to this lawsuit transpired in Plymouth County. Further, all
witnesses are located in Plymouth County, making Plymouth a more
convenient forum for not only the parties, but also the potential
witnesses.
However, this lawsuit has continued in Middlesex County based
upon the Plaintiff s misrepresentation that its principal place of business
is located in that county. The Town learned through its attempted service
of process that in fact Johnson Golf is not located in Middlesex County.
The Plaintiff is engaged in forum shopping, deceiving this Court and the
Town by failing to disclose that it sold the property it now lists as its
17
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principal place of business III current corporate filings with the
Commonwealth. The Court should not subsidize Johnson Golfs
deceptive practice.
Where, as here, a transitory action is brought in the improper
venue, the remedy is transfer of the action to the appropriate county. See
Cormier v. Pezrow New England, Inc., 437 Mass. 302, 307 (2002). The
Court should dismiss this matter for reasons set forth herein. If it does
not act to dismiss this case, the Court should immediately transfer this
matter to Plymouth County because the venue of Middlesex County is
wholly based on fabrication, bad faith and demonstrated contrivance.
CONCLUSION
WHEREFORE, for all the foregoing reasons, the Defendant,
Town of Duxbury, respectfully requests that this Honorable Court
Reconsider its Decision and Order on the Town's Motion for Summary
Judgment.
18
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
ANDWICH, MASSACHUSETTS
02563-1866
PHONE: (SOBI 888-5700
DATED: December l, 2010
Respectfully submitted, F or the Defendant, Town of Duxbury,
By its Attorney,
C}n;
Robert S. Troy Duxbury Town Counsel 90 Route 6A
Sandwich, MA 02563 BBO#503160
(508) 888-5700
19
EXHIBIT "A"
Town of Duxbury, Massachusetts OFFICE OF THE BOARD OF SELECTMEN AND TOWN MANAGER
December 3, 2008
via certlfled mail
Mr. Emmett Sheehan
Eagles Nest Tree & Landscape, LLC P.O. Box 2168
Duxbury, MA 02331
Dear Mr. Sheehan,
Please be advised that the Town has decided to exercise its right to reject any and all of the submittals submitted in response to the Request for Proposals for the North Hill Country Club because it is in the public interest to do so.
The mission of the Town of Dux bury is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden our sense of community and preserve the unique character of our town.
Town of Duxbury, Massachusetts
OFFICE OF THE BOARD OF SELECTMEN AND TOWN MANAGER
December 3,2008
via certified mail
Mr. Mark D. Stiles, Esq. Stiles & Associates, LLC
1250 Hancock Street, Suite 803N Quincy, MA 02169
Dear Mr. Stiles,
Please be advised that the Town has decided to exercise its right to reject any and all of the submittals submitted in response to the Request for Proposals for the North Hill Country Club because it is in the public interest to do so.
The mission a/the Town of Duxbury Is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden our sense of community and preserve the unique character of our town.
Town of Duxbury, Massachusetts
OFFICE OF THE BOARD OF SELECTMEN AND TOWN MANAGER
December 3, 2008
via certlfled mail
Mr. Robert A. Gunnarson 342 Holly Road Marshfield, MA 02050
Dear Mr. Gunnarson,
Please be advised that the Town has decided to exercise its right to reject any and all of the submittals submitted in response to the Request for Proposals for the North Hill Country Club because it is in the public interest to do so.
The mission of the Town O/DIIXbIllY is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden 0111' sense 0/ comm unity and preserve the unique character of our town.
Town of Duxbury, Massachusetts
OFFICE OF THE BOARD OF SELECTMEN AND TOWN MANAGER
December 3) 2008
. via certified mail
Mr. Charlie Lanizetta & Mr. Anthony Morosco CALM Golf, Inc.
P.O. Box 455 Rockland, MA 02370
Dear Mr. Lanizetta & Mr. Morosco,
Please be advised that the Town has decided to exercise its right to reject any and all of the submittals submitted in response to the Request for Proposals for the North Hill Country Club because it is in the public interest to do so.
The mission of the Town of Duxbury is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden our sense oj community and preserve the unique character of our town.
Town of Duxbury, Massachusetts
OFFICE OF THE BOAlW OF SELECTMEN AND TOWN MANAGER
December 3, 2008
via certified mail
Mr. Douglas Johnson
Johnson Golf Management, Inc. P.O. Box 126
Weston, MA 02493
Deal' Mr. Johnson,
Please be advised that the Town has decided to exercise its right to reject any and all of the submittals submitted in response to the Request for Proposals for the North Hill Country Club because it is in the public interest to do so.
The mission of the Town of Duxbury is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden our sense of community and preserve the unique character of our town.
COMMONWEALTH OF MASSACHUSETTS
Middlesex, SS.
Superior Court Docket No. 08-04641
JOHNSON GOLF MANAGEMENT, INC. )
Plaintiff, )
)
v. )
)
TOWN OF DUXBURY, and NORTH HILL )
ADVISORY COMMITTEE, consisting of )
MICHAEL DOOLIN, CHAIRMAN, )
SCOTT WHITCOMB, )
ROBERT M. MUSTARD, JR., MICHAEL )
MARLBOROUGH, ANTHONY FLOREANO, )
MICHAEL T. RUFO, THOMAS K. GARRITY, )
RICHARD MANNING, W. JAMES FORD, )
and GORDON CUSHING (EX OFFICIO), )
CALM GOLF, INC. and CHARLES LANZETTA )
Defendants )
---------------------------------)
AFFIDAVIT OF GORDON H. CUSHING
I, Gordon H. Cushing, under oath, do hereby depose and say as follows:
1. I currently serve as Recreation Director of the Town of Duxbury,
Massachusetts.
2. In October 2008, the Town issued a Request for Proposals ("RFP") for the
management and operation of North Hill Country Club.
3. In response to the RFP, the Town received five (5) proposals.
4. Anthony Floreano, William Dixon, and myself were designated by the Town Manager to serve as evaluators for the non-price proposals pursuant to G.L. c. 30B, § 6(e).
5. Subsequent to the Town's receipt of the five (5) proposals, we evaluated the non-price proposals and submitted our evaluations to the Town Manager.
6. On November 26, 2008, the Town Manager held a meeting for the opening of the price proposals. I was present at the meeting.
7. At the meeting, I learned of the prices submitted by each bidder for the North Hill contract.
8. Upon review of the non-price evaluations, the Town Manager discovered that the evaluators did not submit composite scores and did not properly evaluate each proposal and give a statement of "reasons for the rating" as required by G.L. c. 30B, § 6.
9. Because I had seen the price proposals, I could not properly reevaluate the bids to correct the noncompliance with Chapter 30B.
10. In my presence, the Town Manager requested Town Counsel to inquire of the Inspector General as to what should be done and, if the Inspector General concurred, the Town Manager told me that he was prepared to reject all proposals and rebid the contract.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS ~DAY OF DECEMBER, 2010.
TROY WALL ASSOCIATES ATTORNEYS AND
COUNSELLORS AT LAW
90 ROUTE 6A
ANDWICH, MASSACHUSETTS 02563-1866
PHONE: (508) 888-5700
CERTIFICATE OF SERVICE
I, Robert S. Troy, do hereby certify that I have served a true copy of the Defendant, Town of Duxbury's, Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment, Memorandum in Support of Emergency Motion for Reconsideration of the Court's Decision and Order on the Town's Motion for Summary Judgment, and Affidavit of Gordon H. Cushing, by mailing same first class mail, postage prepaid to:
Stephen R. Follansbee, Esquire Follansbee and McLeod, LLP 536 Granite Street, 3rd Floor East Braintree, MA 02184
John J. Geary, Esquire E. David Edge, Esquire Geary & Associates 161 Summer Street Kingston, MA 02364
Affirmation in Support of Plaintiff's Motion To Compel Defendant To Serve Response To Plaintiff's Document Demand and To Produce Responsive Documents and Affirmation of Good Faith Pursuant To S 202.7
Puente - Arizona - Et - Al - v. - Arpai RESPONSE To Motion Re MOTION For Summary Judgment County Defendants' Joint Response in Opposition To Plaintiffs' Motion For Partial Summary Judgment