P. 1
Duxbury Opposition 4 9 12

Duxbury Opposition 4 9 12

|Views: 64|Likes:
Published by Duxbury Clipper

More info:

Published by: Duxbury Clipper on Apr 18, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

04/18/2012

pdf

text

original

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,

) )
)

)
)

) ) ) ) ) ) ) ) ) ) )
)

v.
PILGRIM GOLF, LLC, Intervenor.

)
) ) )

DEFENDANT, TOWN OF DUXBURY'S, OPPOSITION TO PLAINTIFF'S CROSS-MOTION FOR FINDINGS AND COUNSEL'S FEES PURSUANT TO G.L. c. 231, § 6F 1. INTRODUCTION
This Opposition
TROY WALL ASSOOlAT1IlS ATTORNBU AND )UNSI!LLORS AT LAW 90 llOUTI! M :>Wk:H. MASSACHU~

responds

to Johnson Golfs

(hereinafter

"Johnson")

Motion for a Finding that Johnson is entitled to an Award under G.L. c. 231, § 6F because the Town's Motion to Strike and Motion for Sanctions were "wholly

insubstantial, frivolous and not advanced in good faith.,,1 After the Superior Court (Wrenn, J.) allowed the Town to file a Motion for Summary Judgment, Johnson filed an Opposition that contained issues in dispute that Duxbury contends are not "material facts" and were not supported by sources or authority as required by Rule 9A. Duxbury responded by filing Motions to Strike and for Sanctions. Johnson has filed a response that replicates the pattern of the Opposition that concludes with the assertion that "discovery is replete with evidence that Duxbury officials engaged in a conspiracy." This Memorandum demonstrates that Duxbury's Motions are made in good faith and that Johnson's claims that Duxbury engaged in a conspiracy are false, do not meet the legal requirements for civil conspiracy, and are not statements of material facts that preclude entry of Judgment on Duxbury's Motion for Summary Judgment. Because the Town's Motions identified numerous statements of

Johnson that are either unsupported by the evidentiary record or are immaterial to the issues raised in the Town's Motion for Summary Judgment, Johnson's Motion for a Finding and Fees under G.L. c.23l, § 6F should be denied.2

I

G.L. c. 231, § 6F provides, in pertinent part:

TROY WALL ASSOOIAT1!!S ATTORNBYS AND OUNSELLORS I!.T LAW
!lO lIOO11i 6A 0WfCH. ~ 0l!Q·1866

"[ uJpon motion of any party in any civil action in which a fmding. verdict, decision, award, order or judgment has been made by a judge ... the court may determine, after a hgrlng. as a separate and distinct finding, that all or substantially all of 'he claims. defenses. setoffs or cpugWclaims ... made by any party who was represented by counsel during most or all of the proceeding. weR whpl'y insubstaDtial, frivolou, and got advanced in pod faith. The court shall include in fmding the specific facts and reasons on which the finding is based." is ironic that Johnson now seeks attorney's fees pursuant to G.L. c. 231, § 6F after it submitted two .- the Opposition to the Town's Motion for Summary Judgm.ent and the Opposition/Cross· Motion to the Town's Motion to Strike and Motion for Sanctions - that are noncompliant with the requirements of Rules of Court and contain no defenses to the issues raised in the Town's Motions.
21t

2

II.

DUXBURY'S MOTIONS CORRECTLY ASSERT THAT JOHNSON'S ALLEGATIONS ABOUT TOWN OFFICIALS DO NOT CONSTITUTE EVIDENCE OF A CIVIL CONSPIRACY. Johnson's allegations appear to be predicated on Johnson's presumption

that it had some entitlement to the award of the contract and, therefore, that any action taken by the Town that jeopardized Johnson's perceived right to the

contract, even if it were supported by a legitimate public purpose, constitutes evidence of conspiracy. When analyzed in light of the undisputed facts of this matter and the standard of proof required to establish the existence of a conspiracy, Johnson's claims ring hollow.

A.

The Legal Standard for Civil Conspiracy.

Civil conspiracy is defined as "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damages." Earle v. Benoit, 850 F.2d 836, 844 (lst Cir. 1988) (citations and

internal quotation marks omitted). A "civil conspiracy" has distinct requirements of proof. To plead a

conspiracy, a plaintiff must allege the existence of "a single plan the essential nature and general scope of which [was] known to each person who is to be held
TROYWA..LL ASSOOI.ATBlS ATTORNEYS AND
DUNSELLOas OWICH.~ Kf LAW

responsible for its consequences." Aubin v. Fudala. 782 F.2d 280, 286 (lst Cir, 1983) (citations omitted). "The complaint should at least set forth minimal facts as to who did what to whom, when, where, and why ... but "minimal requirements are

90 ROU'I'I! 6A 0256:H866

3

not tantamount to nonexistent requirements ... " Educatores Puertorriquenos Accion v. Hernandez, 367 F.3d 61, 67 (1 st Cir. 2004).

en

Johnson has failed to allege facts that demonstrate that a common plan or agreement existed to commit an illegal act and that the Town's officials were participants in such a common plan. Instead, Johnson has attempted to string together several unilateral and unconnected actions by different municipal officials over a span of years and characterized them as evidence of a conspiracy. These allegations, when analyzed, require the conclusion that Johnson has not presented evidence of a common agreement to commit a wrongful act -- the critical and necessary criterion of a civil conspiracy. While Johnson has consistently claimed that he is a victim of conspiracy, his claim has been amorphous and his targets a moving range. Initially, Johnson appeared to be suggesting to the Court that the bid of one of the bidders had been changed as a result of "leaked" information about an earlier bid, information that Johnson himself avidly sought. See Exhibit "A" at 10. Johnson then alleged that there was a conspiracy between the North Hill Advisory Committee and

unspecified Town officials. See Exhibit "0." Now, Johnson's theory has morphed into a claim that there was a conspiracy emanating from actions by the Town Manager, Town Counsel and other Town Officials. These will be analyzed infra. Johnson's
TROYWALL ASSOOIAT1llS ATTORHliYS AND
OUNSRLLOiIS AT LAW

claims are based on a misunderstanding

of the procurement

process, a misapprehension about his standing and the duty owed to him by the

!IO ROU'l'li 6A
l)WtCfL~

~11l66 I'HONlM
lS08)

81l1H700

4
A Q 'I ")t\I\t\nl\l\f\I\JI

Town, and unwarranted speculation and erroneous conclusions that emanate from a biased perspective. Duxbury's response to Johnson's claims can be analyzed in three

constructs: (l) the initial RFP process; (2) the rejection of all bids received in the first RFP process and the second RFP process; and (3) the Award that followed the second RFP process.

B.

The First RFP Process.

Johnson's claims belie a misunderstanding of the legal rights owed to him by the Town and his status as a participant in the RFP process. Johnson's claims mimic a claim of interference with an advantageous contractual relationship. They read as an assertion that the Town "wired" the RFP process in order to oust Johnson as the course manager. Johnson assumes that it, as the incumbent manager, is owed some duty in the process superior to other proposers. However, the RFP was issued for bids to manage the course after Johnson's contract was completed. Johnson had no more rights - and the Town owed Johnson no higher duty - than it owed to all of the proposers to faithfully comply with the procurement statute. Here, Johnson's challenge to the RFP requirements must be analyzed. Johnson claims that the Town's decision to allow bidders other than those currently running golf courses was somehow illegal and evidence of a
TROYWALL A.SSOO1ATBS ATTORNEYS AND ~OUNSSLLORS Kf LAW SlO ROUT!.'! 6A rowICH.~ ~lS66

conspiracy against him. Johnson misunderstands that his right to assert such a claim is no different than any of the potential vendors who might choose to make a proposal. Moreover, this decision did not disenfranchise any potential bidders;

5

instead, it fulfilled the procurement objective of maximizing competition to secure the greatest financial return.' Prior to issuance of the RFP, the North Hill Committee did a management study in 2007 of what should be done when Johnson's contract expired. The

Committee -- now identified by Johnson as conspirators -- identified as options that the Town run the course itself or split the bid to multiple vendors. However, the Committee ultimately recommended continuation of the process of a single manager through the RFP process, allowing proposers, including Johnson, to bid. See Exhibit "B." Johnson had prevailed in two previous processes overseen by Duxbury and had run the course for 13 years. The North Hill Committee identified as its first objective a competitive process that would result in increased

management revenue to the Town. See Exhibit "B." In early 2008, the Recreation Director advised the North Hill Committee that the Town was going to seek an independent RFP consultant to guide the Town through the 2008 procurement process. See Exhibit "C." Prior to issuance of the RFP, the Recreation Director sent draft RFPs to a myriad of Town officials, including all of the members of the Board of Selectmen, the Town Manager, the Town Finance Director, the Chair of the North Hill Committee, Town Counsel and staff at the Recreation Department during a two-week period in September of 2008. A copy of the RFP was also sent to a consultant. Included in these
TROYWALL A.SSOOIATBS AT10RNBYS AND ::OUNSBLLORS AT LAW
96ROI.J"I'E6A

'IDWIOt ~ ~11!66

J The Inspector General advises: "[flair, robust competition for larger procurements saves money and promotes integrity and public confidence in government." (Emphasis See "G" at I.

6

documents

was

language

allowing

operators

of golf courses

as well as

"comparable business enterprises" to submit proposals." See Exhibit "D." A specific reference to the addition of "comparable business enterprises" in the transmittal letter to the Town officials was included in the RFP process along with specific language repeated throughout the draft RFP confirming that golf course operators and business enterprises comparable to a golf course could submit proposals. See Exhibit "D." Although there were some comments about other provisions of the proposed RFP, none of the nine (9) Town officials who received the RFP commented on or objected to this provision. Additionally, written communications during this period make repeated references that the RFP was being reviewed by a consultant after the Town's Finance Director had forwarded the RFP to the Chief Procurement Officer for the Town of Plymouth. On September 26, 2008, a second transmission to the Selectmen, Town Manager, members of the Advisory Committee and Recreation Department staff includes repeated references to "comparable business enterprises" and references to the consultant. See Exhibit "E." Hence, it appears that all of the Town officials reviewing the RFP had knowledge of and no objection to including businesses that were comparable to running a golf course in the pool of applicants who could

TROY WALL ASSOOIATJIlS ATTORNEYS AND
ruNSBLLORS
!II)

AT LAW

ROtm! M

lWICH, ~ !I25Q·l86i
H()N1l" 008)

Johnson alleges that the term "comparable business entities'" could not be defined. However, Recreation Director Gordon Cushing, during his Deposition, bad no problem defining it as "[s ]omething that would be similar to someone who was running a golf course or recreational facility." See Exhibit "P" at 53. Cushing also testified that be believed "a large landscape company that does all the things that he says here and is working with a golf course, was a comparable business enterprise. See Exhibit "P" at 79. More signicantly, the Inspector General's Manual contains a specific example of an RFP for a municipal golf course and uses almost identical language: "an operation alieut compartlble In size and complexity to the golf course .... " See, ExbibitG, pg, 61.
4

_51'00

7

submit proposals to manage North Hill after Johnson's contract expired. Exhibit "E."

See

Johnson objected to expanding the pool of potential competitors to the RFP process because of self-interest and now claims that allowing companies other than operators of golf courses to bid is evidence of a Town-wide conspiracy against Johnson. Analysis of this claim requires examination of Johnson's

standing in this process, analysis of the goals of the RFP process, and analysis of statutory requirements as interpreted by the Inspector General under whom

Chapter 30B is administered and enforced. Johnson's standing to challenge language in the RFP is identical to the ability of all potential proposers who participate in the process. Johnson's role as the incumbent manager of the course accorded him no superior rights relative to other bidders to challenge the category of eligible bidders for the period of time after his contract expired. Hence, Johnson's claim must be reformulated: What rights does a potential bidder have to object to requirements promulgated in an RFP? When an RFP is issued, a potential bidder has two options: submit a bid or elect not to bid. If the bidder submits a proposal, it may challenge the RFP process through a Complaint to the Inspector General. Johnson chose to bid and

challenged the RFP process and appealed to the Inspector General who dismissed his appeal. See Exhibit UF." Hence, Johnson's
TROYWALL

objections were resolved in

ASSOCIATlilS
An'OItNEfS AND OUNSBLLOU

accordance with the law.

sr

LAW

90 RDU"I1'! 6A

~~
~tW
I5O!lI _5100

8
A

o

l' ")1\1\1\1\/\1\1\1\0

Now Johnson seeks to characterize the Town's decision to expand the category of potential bidders as a conspiracy directed against him. This nexus is illogical since increased competition does not singularly affect Johnson; it affects all bidders equally by increasing competition for the award. Expansion of the pool of bidders merely increases the potential for proposals; each proposal must still be scrutinized under the standards of the RFP. By allowing businesses outside of golf course operators to submit

proposals, Duxbury avoided a "proprietary procurement" and acted in the public interest to invite "robust" competition that could foster increased revenue for the Town.' Analysis of the RFP -- absent the modifications -- could yield the

conclusion that it is a "proprietary" procurement. While limiting the ability to submit a proposal may have enhanced the ability of all "golf course operators" to win the contract, the addition of "comparable business enterprises" widened the pool of potential bidders and promoted greater competition. The Inspector

General's Manual advises that municipalities "should be wary of specifications that describe equipment to an unusually high level of detail...If you believe that you are justified in using proprietary specifications, you must document your reasons in writing and be prepared to defend your decision if vendors protest." See Exhibit "G" at 17, 114. The Town's representations in its Motions were

TROYWALL ASSOClATlllS
ATTORNEYS OUNSEUORS AND AT LAW '

90 ROOT!! 6A DWlCH, ~

CZSiSHIIIl6

The Inspector General's Procurement Guide defines "proprietary" specifications as those requiring "a brand-name product or have the effect of restricting competition to a supply or service that can be by only one particular manufacturer or supplier." See Exhibit "G" at 17. 114.

9

advanced in good faith and are not "wholly insubstantial" Johnson's Motion should be denied.

or "frivolous" and

C.

Reiection of AU Bids and Reissuance of the RFP.

Johnson claims that Town Manager Richard MacDonald, Town Counsel Robert Troy, Recreation Director Gordon Cushing, and former Selectman Betsy Sullivan "conspired to arbitrarily reject all of the proposals, and engage in a new RFP process." This claim is predicated on Johnson's subjective insistence that the original RFP process was rebid because Calm Golfs bid was non-responsive and Johnson's unfounded speculation that it would have been entitled to the award of the contract.' Johnson's claims ignore two critical facts: (1) two of the three

evaluators in the October 2008 RFP process had expressly violated the provisions of G.L. c. 30B, § 6(e) (1) and (2), respectively, necessitating the rejection of the bids; and (2) one of the evaluators had seen the Price Proposals before the evaluations were complete.' See Exhibit "I." Johnson's claim that it would have received the Award had the bids not been rejected is speculative, particularly since Johnson offered the least favorable price proposal. See Exhibit "J." After

6

G.L. c. 30B, § 6(e) provides, in pertinent part, that "[t]he evaluations shall specify in writing:

TROYWALL ASeOOIATlIlS ATTORNEYS AND IUNSI!LLORS AT LAW

O)~~~~~~~~~~~~~~~JL~WL~~~

m~~~~~~~~~~~~~~~~~
7 The Inspector Generals Manual provides: "As previously noted, the individuals chosen to evaluate the technical, or non-price proposals may not see the price proposals until the evaluation of the technical proposals is complete."

~1866 HONE:
(SC8l ..

11700

10
It

n

of "'1'\1'\1\1'\1\1'\/\ 11\

consultation

with the Inspector General, the Town exercised

its unfettered

discretion to reject all bids." There is no conspiracy here." Following the rejection of bids, the Town issued another RFP. The

Recreation Director revised the RFP and deleted the word "flat" after he noted that one of the vendors had submitted a bid that included percentages. Johnson claims that this is evidence of a conspiracy. However, the Price Proposal Sheets make it clear that the price bid must be in dollars and cents. See Exhibit "H." The presence or absence of the word "flat" has no impact on this requirement. Deleting the word "flat" from the RFP had no effect on the second bid process. Johnson's insistence that the Recreation Director's deletion of this word was intended to facilitate a second percentage bid by Calm Golf is illogical; bids were required to be dollars and cents cash. There is no illegal act here and there is no conspiracy. Johnson claims that the Award after the second RFP was illegal and tainted. He supports this claim with shifting theories of conspiracy and moving targets. The Award reflects the reasons why-three of the proposals offering a higher price were not selected and concludes that, although Johnson and Calm Golf were both responsive and responsible, Calm Golf offered more revenue to the Town, a goal

TROYWALL UWOCIATlIlS
\l'TOI!N£'(S JNSELLOU AND liT LAW

8 G.L. c. 30B, § 9 provides: "The 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 rejection serves the best interests of the governmental body. The procurement shall state in the reason for a cancellation or rejection." 9 The act the bids aided Johnson's prospects by providing a second chance to bid. Johnson's price "..(\""",,1 was the lowest in the October 2008 bid process. Thus, of bids cannot be evidence of a Johnson.

90 ROU"I'E M

IIICR. ~ ~1866 ONE: I508l 883-5700

11

articulated by the North Hill Committee.

See Exhibit "K." Analysis of the

Evaluations and Price Proposals document the reasons for the Award. It is undisputed that the Evaluations from the second RFP resulted in Calm Golf and Johnson receiving the highest ratings of the five proposals. It is also undisputed that Calm Golf and Johnson received equal composite ratings of "highly advantageous and advantageous." The Price Proposals establish that Calm Golf was offering the Town a higher price than Johnson by $92,500.00. See Exhibit "J." The Town Manager, acting as Chief Procurement Officer, made an Award based on the Evaluators' ratings and reflecting the statute's purpose to secure the highest price from a "responsive and responsible" bidder. Hence, the Town

Manager had a reasonable basis to Award the contract to Calm Golf. There is no illegal act here and no conspiracy. Analysis of the requirements of the RFP process reveals support for the Town Manager's decision. The Inspector General Manual provides instructions to municipalities about how to determine the "Best Price" in a RFP process. The Inspector General advises: Best price: The RFP must inform proposers of the method you will use to compare prices and determine the "best" proposal price. Where the contract will require the vendor to pay your jurisdiction, the best price is the highest price. (Emphasis added). See Exhibit "G" at 60.
TROYWALL

ASSOCIATlIlS
ATTORNEYS AND
OUNSELLORS
/(f

The Inspector General's Manual also contains instructions about how to determine the "most advantageous proposal":

LAW

90 ROUTI!6A

DWIOi.~
02S6H866

PHDNE:

!5OS)

I!I!8-S1OO

12

Rule for Award. When you use an RFP process, you award the contract to the proposer offering the most advantageous proposal, taking into consideration all quality requirements and comparative criteria set forth in the RFP as well as price. See Exhibit "G" at 52. The Inspector General's Manual also provides instructions for

municipalities about how to evaluate price proposals: The CPO or person with authority delegated by the CPO will evaluate the price proposals following the method specified in the RFP to determine the best proposal price. The price evaluation can be performed while non-price proposals are being evaluated, as long as the prices are not disclosed to the individuals responsible for evaluating the non-price proposals. See Exhibit "G" at 61. Finally, the Inspector General's Manual contains instructions about how to identify the "most advantageous proposal": The CPO, or person with authority delegated by the CPO, must identify the most advantageous proposal, taking into consideration the proposal evaluations and the proposal price (emphasis added). This selection decision may be easy when, for example, the lowestpriced proposal received the highest overall ratings, or all proposals received the same rating and the differences are so insignificant that you decide to go with the lowest-price. See Exhibit "G" at 62. Here, it is clear that the Town Manager followed the instructions of the Inspector General. Calm Golf and Johnson had equivalent composite evaluations determining that each was "highly advantageous" and Calm Golf offered the highest price. Reading the Inspector General's instructions in the context of procurement when the vendor is paying the municipality, it would read: "This selection decision may be easy when. tor example, proposals received the same
TROYWALL ASSOOIATBS ATTORNEYS AND
)UNSl!llDRS AT LAW 90 ROUT!! 6A >W!CH.~

rating and the differences are so insignificant that you decide to go with the

!I2S63-18611

13
A Q. '1 ")nt\nt\l\l\t\ 1,

Johnson also alleges that the Town Manager and the individual non-price proposal evaluators intentionally avoided awarding the contract to Johnson by "inflating" the January 2009 non-price proposal of Calm Golf. Johnson has no evidence to support this claim. Even assuming, arguendo, that the evaluators made mistakes in the

evaluation process, such mistakes are not evidence of a conspiracy. There is simply no evidence that the evaluators were part of any agreement to deprive Johnson of the contract.
10

Johnson admitted in sworn testimony at his Deposition of May 12, 2009 that he had no evidence of any conspiracy. It is clear that he still has no evidence and that his challenge is predicated on his belief that the evaluators made errors in comparing Calm Golf to Johnson. Even if Johnson's beliefwere correct, the Town Manager was entitled to rely on the evaluators, and the decision to Award the Contract to Calm Golf is not an illegal act or a conspiracy.

E.

ALLEGATIONS AGAINST THE TOWN'S ATTORNEY. to the

Johnson claims that the Town Attorney made misrepresentations

Court and to the Town I I and that he wrongfully removed the RFP documents from

III To the extent that any mistakes in the evaluation process caused damage to Johnson, any such claim would sound in negligence and be subject to the requirements ofG.L. c. 258, the Tort Claims Act. Johnson has not pled such a theory and is now time-barred from doing so.

TROYWALL ASSOCl:.A.TES ATTORNEYS AND
nJNSBUORS lWICH.~ 112563-1&16 AT LAW 90 ROU'l'E 4A

I! Johnson alleges that Town Counsel misrepresented to the Board of Selectmen that Johnson had a "slim possibility" of winning case. Review of the Court's February 3, 2009 Order confirms that the Court determined that" wJohmon's likelihood of success on this claim remains slim, although not foreclosed ... " and that "Johnson will have the heavy burden of proving either, or both, bad faith and knowing conduct if Johnson is to recover monetary damages beyond its bid preparation costs." (Emphasis added). See Exhibit

HONB:

(5081

888-5100

14
II
Q_

1.,f\nnnnl\f\

if A

Town Hall. Each of these allegations must be analyzed in order to demonstrate that they are not accurate and not pertinent to the central question of whether or not Town officials were engaged in a conspiracy. Johnson alleges that the Town Counsel intentionally made three

misrepresentations about the role of a consultant in the RFP process and that these statements are evidence of the alleged conspiracy.V The Town contends that the

statements, although not accurate, were not misrepresentations because there is no evidence that Town Counsel knew the statements were inaccurate when they were made. In addition, nothing concerning the consultant is material to the issues and, therefore, cannot form the basis of a misrepresentation. Further, the statements

were all made after the RFP process was complete and, thus, could not possibly be part of any conspiracy to affect the bid process. Analysis of Johnson's allegations must begin with review of the applicable law regarding misrepresentation. An intentional misrepresentation is a "false

representation of material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon such representation as true and acted upon it to his damage." Barrett Assocs., Inc. v. Aronson, 346 Mass. 150, 152 (1963), quoting Kilroy v. Barron, 326 Mass. 464, 465 (1950); see McEvoy Travel Bureau Inc. v. Norton Co .. 408 Mass. 704, 709 (1990). Rule 4.1 of the Massachusetts Rules of Professional Conduct defines the
TROYWALL ASSO<1lATlIlS ATTORNEYS AND
i.1NSEtLORS AT LAW 90 ROtJTI! 6A W'II:::H, ~ 12 One of the subject statements was made to the Court in a hearing on January 27,2009. The second was made in the Statement ofMateriaJ Facts in ofOuxbury's Motion for Summary Judgment filed on Aprill,2010. The third statement was made to the Board of Selectmen at one of the Board's public meetings on October 4,2010.

~1866

15
Ji l'l ,,"1\1\1\1\1'\1\1\11:'

term similarly: "In the course of representing a client a lawyer shall not knowingly [ ] make a false statement of material fact or law to a third person." There is ample evidence in the record that Town Counsel had a good faith belief that his statements about the consultant were accurate when made: (1) the Recreation Director reported to the North Hill Advisory Committee that he would be "meeting with the town appointed RFP specialist with respect to the

development of the RFP"; (2) the Recreation Director and the Town Finance Director referred to an RFP consultant and the Finance Director emailed the RFP to the consultant; consultant (the and (3) the Recreation Director referred repeatedly to the Procurement Officer of Plymouth) in numerous written

communications. See Exhibits "C", "D" and "E". Johnson assumes that Counsel had more detailed knowledge about the consultant and that he "fabricated a story about a 'consultant.
",13

Town Counsel was copied on the aforementioned email correspondence. This provided him with a good faith basis to believe that a qualified consultant was involved and had reviewed the RFP. Clearly, when a consultant is involved and has been provided a copy of the RFP, there is a concomitant and reasonable expectation that the consultant actually provided expertise and consulting services in the RFP process.

TROYWALL ASSOCIATllIS ATTORNEYS AND
:)UNSEUOU AT LAW

110ROO'I'I M O'MCH, ~
OlSdH866

13 Gordon Cushing testified during his Deposition that he heard individuals represent that an outside consultant had drafted RFP, When asked who made such statements, he responded: "I don't remember, It have been the but I don't remember," See Exhibit "P" at 84.

"HONE! IS08I .5100

16

Indeed, the context of Town Counsel's statements to the Board of Selectmen in a public hearing make it manifest that Town Counsel had a good faith belief that what he was saying was true. The Board of Selectmen hearings are recorded by audio/visual equipment and are televised on local cable television. The particular hearing at issue was attended by the Selectmen, Town Manager, Recreation Director and others who were involved in the RFP process. Town Counsel had also arranged for the stenographer. It is obvious that it would be unwise and against Attorney Troy's interest to make an intentional erroneous statement at any time but particularly so under these circumstances. Further, if Attorney Troy knew his statements about the consultant were not accurate, he would have expected to have been corrected, in public, by the Town Officials in attendance. None of the Town's officials did SO.14 It has since been established that the consultant played no role m the development of the RFP. This fact makes it clear that Town Counsel's statements were not accurate. But it does not mean that Town Counsel had knowledge of the inaccuracy of the statements when they were made. Johnson, without any evidence, erroneously concludes that the statements were misrepresentations and not statements believed to be true but were later found to be inaccurate. Moreover, Johnson is alleging a civil conspiracy to violate Chapter 30B. Erroneous statements made long after the procurement process is completed do
TROYWALL ~T1llS ATrODiSYSANO
:OUNSI!LLOU AT LAW 14 During the hearing. Town Counsel asked Gordon Cushing and the Town Manager if they recalled the name of the procurement company. Gordon Cushing responded, "Not off the top of my head." Cushing also confirmed that the consultant was a woman and that she was located in Plymouth.

9OROtm!6A

~~
~11llStS
I'HONI!; IS08I 8Il&-S700

17
An .. ""1\1\1'\1\1\/\"
.,

not meet the elements of a conspiracy articulated in Earle v. Benoit, supra. Furthermore, there is no evidence that such representations were made in an effort to deprive Johnson of the contract since they all occurred after the Award was made. Similarly, Johnson's allegations regarding Town Counsel's representations about the consultant cannot be considered evidence of a conspiracy because the involvement - or non-involvement - of a consultant in the development of the RFP has no impact on the legality of the RFP or the RFP process. Johnson also claims that Town Counsel's statement to the Court: "And the view in which this complaint is brought is simply on speculation" constitutes a "misrepresentation." Analysis of the Transcript reveals that the discussion related to Johnson's assertions in his Complaint as to the ratings he had received from the evaluators. Since the RFP documents had been secured and were not "public records", it is clear Johnson's allegations about the evaluators' rankings were in fact based upon pure speculation. 2. Removal of the Bid Documents from Town Hall.

Johnson claims that Town Counsel's removal of the bid documents at the behest of the Town Manager to assure the security of the documents (which contained information that could have infected the rebidding process) is evidence of "bid rigging." This assertion is illogical. Eirst, the RFP records are expressly
TROYWALL ASSOOIATlIlS ATTORNEYS AND :OUNSELLORS AT LAW !Ill !tOl.TrB 4A 1D\\'lOt~ ~1S116 !'tION!! 15081 -'5700

deemed not public records in the clear language of G.L. c. 30B, § 6(d). This statutory exemption trumps the requirements of the Public Records Act and provides that bid documents are confidential and not available to competing 18

bidders until the conclusion of the bid process." The rationale for this exemption is clear: to protect the integrity of the bidding process by preventing disclosure of competitor's bids until the process is completed. It is equally clear that the bid

process did not end until the Chief Procurement Officer awarded the contract in January 2009. Johnson's efforts during this time to gain access to the records was contrary to the statutory scheme. Hence, the records, by law, were not "public records" until the evaluation process was complete and the Town's efforts to secure confidentiality are consistent with the requirements of law. Shortly after the Award, the Superior Court was advised of the location and the reasons for the decision to secure the documents by the Town. See Exhibit "A" at 24. Here, the Town attempted to secure the procurement documentation in

order to assure confidentiality of the process and maintain a level playing field for all rebidders. Moreover, all of the documents were made fully available to all bidders and to the public less than one month after the Town made the Award. See Exhibit "A" at 10. The Town's refusal to release the bid documents prior to the conclusion conspiracy. F. The 2011 IFB Process of the procurement process cannot be considered evidence of a

Johnson alleges that the 2011 IFB process included "poison pills" to deprive Johnson of the contract. These allegations are without merit The IFB was
IS The Inspector General's Manual provides that "All of these records [30B written records] must be available for public inspection. except that proposals submitted in response to an RFP remain confidential until the completion of the evaluations." Since the records were not public records until the evaluation process was complete, Johnson was not entitled to them; their location immaterial; and the security reason paramount.

TROYWALL ASSOOIATlIlS ATTORNEYS AND :OUNSBLLORS AT LAW 90 ROUTt! &\ lDWtat~ 025IiH866
I'HONl!: l1lO8J 1188-5100

19
An .. ",)/\1\1\1\1\1\1\"
t\

prepared by the Town's Chief Procurement Officer, Scott 1. Lambiase, and was reviewed and revised by the Inspector General's Office and its Legal Counsel.
16

See Exhibit "L." Johnson's ex post facto rationale for its failure to submit a bid cannot be considered evidence of a conspiracy. Simply put, Johnson had the opportunity and the right to submit a bid and failed to do so. Furthermore, the IFB process occurred more than two years after Johnson commenced this action against the Town. It is manifest that Johnson chose not to bid in order to preserve its litigation position against the Town. CONCLUSION Wherefore, the Town of Duxbury respectfully requests that this Honorable Court deny the Plaintiffs Cross-Motion for a Finding and Costs under G.L. c. 231, § 6F and schedule a Hearing.

Respectfully submitted, Town of Duxbury, By its Attorney,

DATED: April
TROYWALL ASSOOIATllIS AT1'ORNBYS AND OUNSIILLORS AT LAW 90 ROUTE 6A t:>WICfL~ ~1866

_j_,

2012

Troy Wall Associates 90 Route 6A Sandwich, MA 02563 (508) 888-5700 csj@troywallassociates.com

16 Nicholas Read, Deputy General Counsel to the Office of the Inspector reviewed the IFB and recommended changes to the document that were incorporated into the final draft of the IFB.

20

CERTIFICATE OF SERVICE I, Craig S. Jordan, do hereby certify that I have served a true copy of the Defendant, Town of Duxbury's, Opposition to Plaintiffs CrossMotion for Findings and Counsel's Fees Pursuant to G.L. c. 231, § 6F, by FedEx, postage prepaid, upon the following: Stephen R. Follansbee, Esquire Follansbee and McLeod, LLP 536 Granite Street, 3rdFloor East Braintree, MA 02184 John J. Geary, Esquire E. David Edge, Esquire Geary & Associates 161 Summer Street Kingston, MA 02364 Leonard H. Kesten, Esquire Brody, Hardoon, Perkins & Kesten, LLP One Exeter Plaza Boston, MA 02116 Robert W. Galvin, Esquire Gelvin and Galvin, SP 10 Enterprise Street, Suite 3 Duxbury, MA 02332

DATED: April

j_,

2012

__

1866 !lIOIII1I8H700

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->