Another reason stated by the City in support of its policy is to avoid the appearance of unfairness which might arise if a low bidder were allowed to "negotiate", through substitution, on an element of responsiveness to the bid, and consequently a second low bidder who included certified or certifiable firms in his or her bid package might believe that the MBE program was not being applied fairly if the low bidder were allowed to replace uncertified firms with certified firms prior to the award. On the other hand, this Court does not hesitate to point out that the City's policy forbidding the substitution of a certified MBE subcontractor for one not certified has in this case caused unnecessary delay in awarding the contract, and may result in additional cost for the project.
It is not the function of this Court, however, to substitute its judgment as to whether the City should or should not permit substitution of subcontractors in cases such as this. Whether the City's policy against substitution is a wise policy, or even a desirable policy, is not for this Court to decide. As the court in Weber stated, "Whether the City was wise in its rejection of the bids is not within our province to determine." 262 A.2d at 302. In applying the arbitrary and capricious standard to agency determinations, it is well-settled that a court must often affirm administrative decisions with which it disagrees. Ethyl Corp. v. Environmental Protection Agency, 176 U.S.App.D.C. 373, 408, 541 F.2d 1, 36, cert. denied, 426 U.S. 941, 96 S. Ct. 2662, 49 L. Ed. 2d 394 (1976).
In addition to challenging the City's policy forbidding substitution of subcontracts, Regional contends that there was an "ambiguity" in the bid instructions which would justify permitting Regional to amend its bid. The instructions in the "MBEC Program" section of the bid package state that the listing of MBE and WBE firms in the Schedule of Participation "is a commitment by the bidder that, if it is awarded the contract, it will enter into a subcontract with the firm for the portion of the work listed at the price set forth in this bid submission." This instruction is said to conflict with the direction in the "Special Contract Requirements" section of the bid package to "employ no subcontractors" without the written approval of the Director of the Architecture and Engineering Division.
The Court agrees that the bid instructions in this case are not a model of clarity. The Court recognizes that the MBEC program, at the time these bid instructions were drafted, was a "start-up" program necessitating changes in the bid instructions for City contracts. However, any ambiguities present in these instructions do not render the City's refusal to allow Regional to substitute a minority subcontractor arbitrary or capricious. Regional was well aware at the time it submitted its bid that it was required to list certified or certifiable firms in its Schedule for Participation. Accurate Fence refused to complete the certification process. Moreover, if as Regional contends there was a "significant ambiguity" in the bid instructions, the ambiguity would apply to all the bidders, and it would be well within the City's discretion to reject all the bids, clarify the ambiguity, and readvertise the contract. See, e.g., Ogden Foods, Inc. v. State Farm Products Show, 11 Pa. Commwlth. 435, 440, 315 A.2d 329, 332 (1974) (not arbitrary or capricious for state agency to reject all bids and readvertise where original bid instructions were unclear).
For all of the reasons heretofore set forth, the Court has concluded that the City did not act arbitrarily or capriciously in refusing to allow Regional to substitute a minority subcontractor in place of Accurate Fence and in rejecting all of the bids. Therefore the Court has determined that Regional has not carried its burden of showing a reasonable likelihood of success on the merits in this litigation.
Furthermore, the moving party seeking an injunction must always demonstrate that irreparable injury will occur unless relief maintaining the status quo is granted. Moteles v. University of Pennsylvania, et al., 730 F.2d 913, 918 (3d Cir. 1984), citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (3d Cir.1980). Regional has failed to show that it will suffer irreparable injury pendente lite if the injunction is not issued. In its original motion for a preliminary injunction Regional contended that it would suffer irreparable harm if the contract was awarded to another bidder pending the outcome of this litigation. Regional appeared to be unaware of the City's decision to reject all the bids at the time it filed its motion for a preliminary injunction. In fact, Regional's president testified at the hearing that he had not been made aware of the City's decision to reject all the bids until the morning of the hearing.
The City's decision to reject all the bids and readvertise the project gives Regional another opportunity to submit a responsive bid. Although it is possible that Regional would not participate in the rebidding, or might not submit the lowest bid in the ensuing bid competition, the mere possibility of future injury is not sufficient to satisfy the standard for granting a preliminary injunction. The Third Circuit has held that a district court should not "exercise the delicate power of injunctive relief" absent a "clear showing of immediate irreparable injury." Ammond v. McGahn, 532 F.2d 325, 329 (3d Cir.1976). The movant for injunctive relief must show "a presently existing actual threat; [an injunction] may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights . . . ." Continental Group, Inc v. Amoco Chem. Corp., 614 F.2d at 359, quoting Holiday Inns of America, Inc. v. B & B Corporation, 409 F.2d 614, 618 (3d Cir.1969). It is interesting to note that in Cubic Western Data v. New Jersey Turnpike Authority, 468 F. Supp. 59, 71 (D.N.J.1978), the court held that no immediate irreparable injury will be suffered by a disappointed bidder where all bids are rejected and the contract readvertised. This Court has concluded that Regional has failed to carry its burden of demonstrating that it will suffer immediate irreparable harm if the City is permitted to readvertise the contract.
The Court also has considered the possibility of harm to other interested parties resulting from the grant or denial of the requested injunction. There is nothing in this record which in any way indicates that other interested parties will be harmed by this Court's refusal to grant the requested injunction.
Finally, the Court has also considered the interest of the public in the grant or denial of the injunction. As heretofore pointed out, readvertising the contract will further delay the completion of the project, and might entail additional cost. On the other hand, however, the City's policy refusing substitution of certified MBE and WBE subcontractors may, in the long run, better achieve the laudatory objectives of the MBEC program requiring minority and female participation in public contract work. This Court has determined that the issuance of the requested injunction would create an additional and unnecessary delay in the completion of the project.
For the reasons heretofore set forth, this Court has determined that Regional has failed to show either a reasonable probability of eventual success in this litigation or a threat of immediate irreparable injury pendente lite if the injunction is not issued. The Court also has considered the potential harm to interested third parties resulting from the grant or denial of the injunction, as well as the effect of the grant or denial of the injunction upon the public interest, and has determined that these factors do not militate against the denial of the injunction. For all of these reasons, Regional's motion for a preliminary injunction will be denied.
© 1992-2004 VersusLaw Inc.