~w TROY WALL ASSOCIATES

ATTORNEYS AND COUNSELLORS AT LAW

90 ROUTE 6A • SANDWICH, MASSACHUSETTS 02563-1866

ROBERT S. TROY BRIAN J. WALL

December 4,2010

Civil Clerk's Office

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

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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.

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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-.---)

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Ii P ainti , )

) ) ) ) ) ) ) ) ) ) ) and GORDON CUSHING (EX OFFICIO), )

CALM GOLF, INC. and CHARLES LANZETTA)

Defendants )

---------------)

Superior Court Docket No. 08-04641

)i

ii tl

:i V.

u II :1 I'

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

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Town's Motion for Summary Judgment.

02563-1866

PHONE: (508) 888-5700

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ANDWICH. MASSACHUSETTS

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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

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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

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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

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procurement officer shall state in writing the reason for a cancellation or

5

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

Sincerely,

i2~e.~~/~

Richard R. MacDonald Duxbury Town Manager

878 Tremont Street, Duxbury. MA 02332 Telephone: 781-934-1100 x149 Fax: 78/-934-9011 Town-Manager@town.duxbury.ma.us

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.

Sincerely, .

-!2~.11JJJ.~.~1rv

Richard R. MacDonald Duxbury Town Manager

878 Tremont Street, Duxbury, MA 02332 Telephone: 781-934-1100 x149 Fax: 781-934-90// Town-Manager@town.duxbury.ma.us

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.

e:~./~-{G8~1 h

Richard R. MacDonald Duxbury Town Manager

878 Tremont Street, Duxbury, MA 02332 Telephone: 781-934-1100 xl49 Fax: 781-934-9011 Town-Manager@town.duxbury.ma.us

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.

Sincerely,

c{JrA~ e ~~aM!1n-

Richard R. MacDonald Duxbury Town Manager

878 Tremont Street, Duxbury, MA 02332 Telephone: 781-934-1100 xJ49 Fax: 781-934-9011 Town-Manager@lown.duxbury.ma.us

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.

Sincerely,

"1J.~ e ~~ //Jv

Richard R. MacDonald Duxbury Town Manager

878 Tremont Street, Duxbury, MA 02332 Telephone: 781-934-1100 x149 Fax: 781-934-9011 Town-Manager@town.duxbury.ma.us

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

Robert S. Troy

DATED: December J_, 2010

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