ZARELLA, J.
The principal issue in this appeal is whether the nonunion plaintiffs, Electrical Contractors, Inc. (ECI), and six of its individual employees,
The following relevant facts are set forth in the trial court's memorandum of decision. "A PLA is a prehire collective bargaining agreement which requires all contractors and subcontractors on a construction project to comply with the terms of all existing collective bargaining agreements with unions representing workers from the trades performing work on the project and requires all project workers to join the unions for their respective trades, to remain members in good standing of such unions, and not to strike while the project is under construction.
"In their complaint, the plaintiffs [sought] several types of declaratory, injunctive and other extraordinary relief
"After this case was filed in [the trial] court, the defendants successfully petitioned for its removal to the United States District Court [for the District of Connecticut] so that [the] federal constitutional claims . . . could be adjudicated in a federal forum. Upon its removal, the case was assigned to [Judge] Stefan Underhill, before whom the parties presented oral arguments after submitting extensive briefs on comprehensive motions to dismiss
"After the case was remanded, the [trial] court met with counsel to establish a procedure for identifying those jurisdictional challenges that remained to be adjudicated, claiming such challenges for a hearing, and filing supplemental briefs thereon. Upon receipt of the parties' claims for hearing and supplemental briefs, which incorporated by reference all relevant portions of the briefs they had previously filed in federal court, the [trial] court heard oral argument on all challenges claimed for hearing on July 3, 2009. For the purpose of that hearing, the parties agreed that all documents and materials submitted by any party could be considered parts of the evidentiary record upon which to decide the contested issues presented on the pending motions.
"The defendants, in their motions [to dismiss] . . . challenged [the trial] court's subject matter jurisdiction over the plaintiffs' state law claims on three separate
Following the hearing, the trial court agreed with the defendants that the plaintiffs lacked standing and that the action should be dismissed for lack of subject matter jurisdiction. In its memorandum of decision, the court concluded that ECI had failed to make a colorable claim that the PLA requirement effectuated fraud, corruption, favoritism or otherwise undermined the objective or integrity of the competitive bidding process under the common-law principles articulated in Associated Builders & Contractors. The court also concluded that the individual plaintiffs did not have standing because they were not prequalified electrical contractors and had "neither bid on either project nor could have done so. . . ." Accordingly, the trial court granted the defendants' motions to dismiss without reaching or deciding the alternative grounds advanced in support of their motions. Thereafter, the plaintiffs appealed to the Appellate Court from the trial court's judgment, and the appeal was transferred to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-2.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue. . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 112, 967 A.2d 495 (2009).
"Moreover, no statute grants unsuccessful bidders standing to challenge the award of a state contract. . . . In particular, state and local competitive bidding laws have not been enacted in order to protect bidders. These laws serve to guard against abuses in the award of contracts such as favoritism, fraud or corruption and are enacted solely for the benefit of the public and in no sense create any rights in those who submit bids. . . .
"Despite these substantial constraints, we have recognized a limited exception to the rules of standing in order to provide a means of protecting the public's interest in properly implemented competitive bidding processes. . . . Under this exception, unsuccessful bidders have standing to challenge the award of a public contract where fraud, corruption or acts undermining the objective and integrity of the bidding process existed. . . . [S]uch a suit is brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a private attorney general." (Citations omitted; internal quotation marks omitted.) Id., at 178-80, 740 A.2d 813.
"Our policy to limit standing so as to deny some claims brought by unsuccessful and precluded bidders is designed to protect twin goals that serve the public interest in various, sometimes conflicting, ways. The standing rules aim to strike the proper balance between fulfilling the purposes of the competitive bidding statutes and preventing frequent litigation that might result in extensive delay in the commencement and completion of government projects to the detriment of the public." (Internal quotation marks omitted.) Id., at 180, 740 A.2d 813.
Finally, because the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss. E.g., May v. Coffey, supra, 291 Conn. at 113, 967 A.2d 495; see Practice Book § 10-31(a)(1). "The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.. . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010).
ECI first claims that the trial court incorrectly concluded that it lacked standing to challenge the imposition of the PLA requirement and the rejection of its lowest, responsible, qualified bids for the school construction projects. ECI specifically claims that the trial court misapplied this court's narrow holding in Associated Builders & Contractors that the plaintiffs did not have standing because they had not bid on the project, as ECI had done in the present case. In addition, ECI claims that the court in Associated Builders & Contractors never considered the cost effects on the public bidding process of disqualifying nonunion contractors and workers, who constitute 90 percent of the local electrical workforce and 80 percent of the overall construction workforce, and never ruled on the discriminatory effects of the plaintiffs' challenge to the PLA requirement. ECI further claims that the trial court in the present case disregarded the extensive factual record before it, including "overwhelming evidence" that the effect of the PLA requirement was to exclude nonunion contractors and employees from working on the projects, and did not properly consider that ECI was the lowest, responsible qualified bidder. In this regard, ECI maintains that the complaint and accompanying affidavits set forth numerous ways in which the PLA requirement discriminated against ECI and other nonunion contractors and caused them to suffer specific, actionable harm by effectively barring them from working on the projects.
The nonstate defendants respond
Because our analysis of this claim requires us to consider how the trial court
We begin with the reasoning in Associated Builders & Contractors. The trial court's decision was based almost entirely on its interpretation of that case, in which this court concluded that the plaintiffs did not have standing. The plaintiffs were a trade association of contractors and subcontractors (association) and two individual subcontractors who sought to enjoin the defendant, the city of Hartford, from awarding a contract for the construction of a municipal parking garage. Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 171, 740 A.2d 813. The association claimed that, but for a PLA requirement in the bid specifications, some of its contractor members would have submitted bids on the project. Id., at 177, 740 A.2d 813. The defendant subsequently sought to dismiss the complaint on jurisdictional grounds, alleging that the plaintiffs lacked standing. Id., at 174, 740 A.2d 813.
At the outset of its decision, the court described the principal issue as "whether nonbidding contractors and subcontractors
The court elaborated that the record failed to show that cost considerations had precluded nonunion general contractors from participating in the bidding process, stating in a footnote that "the plaintiffs ha[d] provided no explanation as to how the alleged increased expense to some potential bidders would raise the costs of the overall project. An increase in costs in one aspect of a project can equally well result in overall cost savings for the project. By avoiding labor disruption and maintaining a supply of skilled workers, as the project construction manager testified the [PLA] was designed to do, the [PLA] could reduce overall costs. The record . . . does not, in fact, support the association's claim that cost considerations precluded nonunion general contractors from participating in the bidding process. Two of the five bidders were nonunion contractors. The association presented no testimony to support its claim that government projects using [PLAs] had higher total costs than other similar projects without [a PLA]." Id., at 187 n. 12, 740 A.2d 813. The court thus concluded that the association had failed to make "a colorable factual showing" to support its claim of economic disadvantage. Id., at 187, 740 A.2d 813. The court stated that the "the record . . . demonstrates a nondiscriminatory decision by the [defendant] to use a [PLA]"; id., at 188, 740 A.2d 813; and that the "determinative factor" in a bidding challenge was "whether the requirements in that process had been applied consistently and in good faith." Id., at 189, 740 A.2d 813.
In relying on Associated Builders & Contractors when granting the defendants' motions to dismiss ECI's claim with respect to the competitive bidding statutes, the trial court initially acknowledged that none of the plaintiffs in that case had satisfied the threshold requirement of demonstrating that they had bid on the project or would have bid on the project but for the PLA requirement. The trial court then concluded that the court in Associated Builders & Contractors had reached the merits of the plaintiffs' claim by considering whether inclusion of the PLA requirement in the prebid specifications
As previously discussed, the principal issue in Associated Builders & Contractors was "whether nonbidding contractors and subcontractors ha[d] standing to challenge a bid specification for a municipal project that require[d] the successful bidder to agree to abide by a [PLA]." (Emphasis added.) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 170-71, 740 A.2d 813. The court ultimately determined that the plaintiffs had not shown that any of the association's general contractor members had bid on the project or would have bid on the project under the first part of the test, and, therefore, it could not "invoke the standing of its general contractor members as a basis for its own standing to pursue its challenge to the validity of the [PLA] requirement." Id., at 186, 740 A.2d 813. The court nonetheless proceeded to consider whether the plaintiffs could have prevailed under the second part of the test. See id., at 186-87, 740 A.2d 813. It is that portion of the analysis on which the trial court in the present case relied to resolve the standing issue. Its reliance, however, was misplaced for the following reasons.
First, any consideration of the second part of the test in Associated Builders & Contractors was unnecessary following the court's dispositive holding that the association lacked standing under the first part of the test. Accordingly, the court's conclusion in Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 186-87, 740 A.2d 813, that the plaintiffs could not prevail under the second part of the test and the reasoning on which its conclusion was based were
Second, we disagree with the trial court and the non-state defendants that the court in Associated Builders & Contractors considered the merits of the plaintiffs' complaint or ruled that the plaintiffs had failed to establish that the PLA requirement had a potentially discriminatory effect on nonunion contractors due to increased costs. Although the court's reference to whether the plaintiffs had produced sufficient evidence of fraud, corruption or favoritism may have suggested that it was considering the merits of the defendant's decision to impose a PLA requirement, the court itself rejected such a notion when it stated that "[t]he general rule of standing . . . is not inconsistent with the particular standard applicable to disappointed and would-be bidders: By requiring [the plaintiffs] to produce evidence that the bidding process was undermined by fraud, corruption or favoritism, the court is simply forcing the party challenging the competitive bidding process to make a colorable claim of injury that it is within the zone of interests protected by the competitive bidding laws. . . . Although the plaintiffs were not required to prove the merits of their claim, they did have the lesser burden of establishing a colorable claim."
Third, to the extent the trial court and the nonstate defendants regard the court's discussion of cost in Associated Builders & Contractors as resolving the issue of whether a PLA requirement is discriminatory, and thus dispositive of the standing issue in the present case, they misconstrue the court's analysis and fail to consider the subsequent evolution of Connecticut's competitive bidding laws. Associated Builders & Contractors did not conclude that cost was not a factor to be considered in deciding whether the competitive bidding laws were undermined, nor did it evaluate or reach any conclusions regarding the broader question of whether the PLA requirement in that case contravened the competitive bidding laws. The court merely stated that it "[knew] of no requirement in the competitive bidding statutes that propels cost considerations to the top of the list of appropriate considerations for public contract specifications" and that "cost alone" should not be "the determinative factor"; (emphasis added) id., at 187-88, 740 A.2d 813; a statement with which ECI's attorney in the present case agreed during oral argument before this court. The court also noted that "[a]n increase in costs in one aspect of a project can equally well result in overall cost savings for the project. By avoiding labor disruption and maintaining a supply of skilled workers, as the project construction manager testified the [PLA] was designed to do, the requirement could reduce overall costs. The record . . . does not, in fact, support the association's claim that cost considerations precluded nonunion general contractors from participating in the bidding process." Id., at 187 n. 12, 740 A.2d 813. Accordingly, the court in Associated Builders & Contractors did not conclude, as the trial court concluded and the nonstate defendants claim, that a PLA requirement has no effect on competitive bidding because of increased costs to nonunion contractors and workers. It merely concluded that the "determinative factor" is whether the requirements of the bidding process have been applied consistently and in good faith, and that the plaintiffs had not made a "colorable factual showing" that the integrity of the bidding process had been affected by the additional costs allegedly imposed on nonunion contractors and workers by the PLA requirement. Id., at 187-89, 740 A.2d 813.
Moreover, following the decision in Associated Builders & Contractors, the legislature enacted General Statutes § 4a-100, also known as the "prequalification statute," which requires all bidders on public construction projects to satisfy certain minimum standards in order to bid or perform work on such projects.
Finally, the statement in Associated Builders & Contractors that "[t]he trial court's determination that the decision to adhere to a [PLA] was within the defendant's discretion and the bounds of the competitive bidding statutes [and], therefore, did not exceed the limits of our case law"; id., at 182, 740 A.2d 813; did not mean that a PLA requirement may never affect the integrity of the competitive bidding process. The court made the foregoing comment in response to the plaintiffs' claim that the trial court improperly had reached the merits of whether the defendant's decision to use a PLA was a proper exercise of its discretion. See id., at 181-82, 740 A.2d 813. In that context, the court merely was observing that the defendant's decision to use a PLA was discretionary and that the trial court had consulted our case law and properly determined that, in order to challenge the PLA requirement, the plaintiffs were required to make a colorable claim of injury by producing evidence that the bidding process had been undermined by fraud, favoritism or corruption.
We also agree with ECI that the trial court failed to conduct an in-depth examination of the plaintiffs' allegations to determine whether they were sufficient to support a colorable claim of injury. See footnote 23 of this opinion. As previously noted, "[w]hen a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss. . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, supra, 296 Conn. at 200-201, 994 A.2d 106. The record includes "supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) May v. Coffey, supra, 291 Conn. at 108, 967 A.2d 495. In the present case, we conclude, upon an examination of the allegations in the underlying complaint,
It is undisputed that ECI submitted a bid on both construction projects, thus satisfying the first part of the standing test. ECI also sustained its burden under the second part of the test because the complaint, the supporting affidavits and other evidence, considered in their most favorable light, contained detailed allegations as to the discriminatory effect of the PLA requirement on ECI and other nonunion contractors.
Specifically, paragraph thirty-seven of the complaint alleges twelve ways in which the PLA requirement would "severely impair" ECI's ability as a nonunion contractor to successfully perform work on the projects and place ECI at a competitive disadvantage relative to union contractors bidding on the same projects. Similarly, in his affidavit dated March 25, 2009, William J. Flynn, Jr., ECI's vice president for nearly fifteen years, describes how the PLA requirement would penalize ECI, or any other nonunion contractor, their field employees and taxpayers by significantly increasing labor costs and how the alleged harm would be ongoing. Finally, in their joint affidavit dated March 23, 2009, which draws on four studies conducted by the Beacon Hill Institute at Suffolk University in Boston, Massachusetts, concerning PLAs and the cost of public school construction in Connecticut, Massachusetts and New York, David G. Tuerck
Insofar as the nonstate defendants insist that ECI provided insufficient evidence to establish that it has standing, we disagree.
The six individual plaintiffs claim that the trial court incorrectly concluded that they do not have standing to challenge the imposition of the mandatory PLAs for the school construction projects under article first, §§ 4
A similar issue was raised in Connecticut Associated Builders & Contractors v. Anson, supra, 251 Conn. at 204, 740 A.2d 804. In that case, the plaintiffs included two subcontractors and one of their employees, who was suing in his capacity as an individual and a taxpayer. Id., at 204 and n. 1, 740 A.2d 804. The trial court concluded that the individual plaintiff lacked standing to challenge the bidding process on the ground that it impaired his federal and state constitutional rights to freedom of speech and association. See id., at 205-206, 740 A.2d 804. This court agreed, stating that the individual plaintiff and the plaintiff subcontractors had "no standing to pursue a challenge to general bid specifications because, in their own capacity, they never can bid directly for government projects. Their preclusion from the bidding process has no relationship to whether they operate union shops, or whether they are opposed philosophically to union shops. Their preclusion stems from the nondiscriminatory and uncontested industry practice of limiting bidding to general contractors. If general contractors were indeed to incur higher costs because of [PLA] contract specifications. . . the possible economic consequences of increased costs attributable to potential subcontractors [and individual employees] are too speculative and too attenuated to constitute `some direct injury' for the purposes of conferring standing on such subcontractors [and individual employees].
In the present case, we agree with the trial court that the six individual plaintiffs have not suffered the direct or actual injury required under Connecticut law to establish standing because they are not prequalified electrical contractors, and, accordingly, they did not bid, nor could they have bid, on the school construction projects. Moreover, due to the fact that ECI was not the winning bidder, the individual plaintiffs never were compelled to make payments to the union or directly barred from working on the projects. We therefore conclude that they lacked standing to bring their state constitutional claims because the claims were too remote and speculative.
The individual plaintiffs rely on Abood v. Detroit Board of Education, 431 U.S. 209, 212-13, 236-37, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), in which the United States Supreme Court held that the general allegations in a complaint filed by a group of teachers who were unwilling to join a union, refused to pay dues and opposed collective bargaining in the public sector were, "if proved," sufficient to establish a cause of action under the first and fourteenth amendments of the United States constitution. Abood is distinguishable from the present case, however, because the teachers were compelled to pay, as a condition of their employment, a service fee equal in amount to union dues even if the teacher was not a union member, and any teacher who failed to meet that obligation was subject to discharge. Id., at 212, 97 S.Ct. 1782. In the present case, the individual plaintiffs were not required to comply with a condition of employment they opposed, such as payments to the union, nor were they subject to consequences for not joining a union, such as being barred from working on the projects, because ECI was not the winning bidder, and, thus, they had no opportunity to work on the projects. Consequently, unlike the teachers in Abood, the individual plaintiffs in the present case were only indirectly affected by the city's rejection of ECI's low bid, and they did not have standing to bring their claims.
ECI's final claim is that the trial court incorrectly concluded that it did not have standing to prosecute its claim against the city for violation of the Connecticut Antitrust Act. It specifically contends that the PLA requirement in this case violates General Statutes §§ 35-26,
We first consider the nonstate defendants' contention that ECI's antitrust claim was inadequately briefed. It is well established that "[w]e are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. . . . In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice." (Citations omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).
In its brief, ECI addresses the standard of review, the statutory provisions allegedly violated, the portions of the complaint containing the antitrust allegations, the manner in which the antitrust statutes were violated and the relevant legal precedent. Accordingly, we conclude that the claim was adequately briefed.
We next consider whether ECI has standing to bring its antitrust claim. In Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 622-23, 854 A.2d 1066 (2004) (Cheryl Terry Enterprises), the nonunion plaintiff school bus company claimed an antitrust violation after the defendant, the city of Hartford, rejected its lowest bid on a contract subject to competitive bidding and awarded the contract to a union bidder who had submitted a higher bid. We concluded that "the legislature expressly has conferred standing on a broad range of individuals under the [Connecticut
The nonstate defendants argue that the holding in Cheryl Terry Enterprises does not apply because that case involved allegations regarding a purported anticompetitive conspiracy, not the anticompetitive effects of a PLA, and that the PLA issue falls within the construction industry exception to antitrust legislation created under the National Labor Relations Act, 29 U.S.C. § 151 et seq. (2006). See Building & Construction Trades Council of the Metropolitan District v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 230, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) (explaining that 29 U.S.C. § 158[f] "explicitly permits employers in the construction industry—but no other employers—to enter into prehire [PLAs]"). The nonstate defendants also argue that a validly bargained for PLA is not subject to antitrust scrutiny pursuant to General Statutes § 35-31(b), which provides qualified immunity for anticompetitive conduct specifically required or directed by state or federal statutes, and that, in order to avoid this exception, the plaintiffs had to plead and prove that the PLA was not the result of a valid collective bargaining process, which they failed to do. We disagree.
The holding in Cheryl Terry Enterprises applies to "unsuccessful bidders in a municipal bidding process" and is not limited in the manner suggested by the non-state defendants. Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. at 632, 854 A.2d 1066. Moreover, to the extent the nonstate defendants contend that the PLA issue falls within the construction industry exception, the plaintiffs do not challenge the legality of the PLA or the process by which it was negotiated but, rather, the fact that it was included in the mandatory bid specifications with which all prospective bidders, union and nonunion alike, were required to comply. Finally, with respect to the applicability of § 35-31(b), because the city and the state were acting in a proprietary rather than a regulatory capacity; see part IV A of this opinion; they are not subject, under the present facts, to qualified immunity under that statute. Accordingly, we conclude that the trial court improperly determined that ECI lacked standing to prosecute its antitrust claim.
The nonstate defendants contend that the trial court's dismissal of the plaintiffs' complaint for lack of standing can be affirmed on the alternative ground that their claims are preempted by federal labor law. They argue that the PLA is a prehire collective bargaining agreement within the primary jurisdiction of the National Labor Relations Board (NLRB) and that the state has no jurisdiction to resolve the plaintiffs' claims under the principles articulated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and Lodge 76, International Assn. of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396
The following additional facts are relevant to our resolution of this issue. During the proceedings in the District Court on the defendants' motions to dismiss, certain of the nonstate defendants argued, inter alia, that the plaintiffs' claims were preempted by federal labor law, namely, § 301 of the Labor Management Relations Act, 1947, 29 U.S.C. § 185, and the preemption doctrines articulated in Garmon and Machinists. The District Court concluded, however, that § 301 did not preempt the plaintiff's claims
We begin with a brief explanation of the principles set forth in Garmon and Machinists. "Although the [National Labor Relations Act] itself contains no express pre-emption provision, [the United States Supreme Court has] held that Congress implicitly mandated two types of pre-emption as necessary to implement federal labor policy. The first, known as Garmon pre-emption . . . is intended to preclude state interference with the [NLRB's] interpretation and active enforcement of the integrated scheme of regulation established by the [National Labor Relations Act]. . . . To this end, Garmon pre-emption forbids [s]tates to regulate activity that the [National Labor Relations Act] protects, prohibits, or arguably protects or prohibits. . . . The second, known as Machinists pre-emption, forbids both the [NLRB] and [s]tates to regulate conduct that Congress intended be unregulated because left to be controlled by the free play of economic forces. . . . Machinists pre-emption is based on the premise
The nonstate defendants' first six arguments rely on their interpretation and application of Garmon. They contend that the state has no jurisdiction (1) to resolve the plaintiffs' claims that the PLA is "illegal," (2) to regulate or preclude utilization of a PLA on a publicly funded project, (3) to apply state law to regulate an employee's right to join or not to join a union, (4) to regulate the use or application of construction prehire contracts, (5) to apply state law to regulate the use or application of construction subcontracting clauses, and (6) to apply state law to regulate union security provisions. All of the foregoing arguments share the common premise that the imposition of a mandatory PLA bid specification is within the category of activities that the National Labor Relations Act protects, prohibits, or arguably protects or prohibits. See Chamber of Commerce of the United States of America v. Brown, supra, 554 U.S. at 65, 128 S.Ct. 2408. The nonstate defendants also argue that the plaintiffs' claims are barred under Machinists.
The plaintiffs respond that they are not asking the court to interpret the PLA requirement or to apply it in any manner that affects labor relations between employers and their employees but are merely asking the court to take full cognizance of the disparate effects of the PLA, to understand its provisions, and to deem its mandatory application to all contractors, subcontractors and field labor working on the projects a violation of the competitive bidding laws and state constitutional provisions. The plaintiffs thus argue that neither Garmon nor Machinists operates to preclude their claims and that the state has jurisdiction under the United States Supreme Court's holding in Building & Construction Trades Council of the Metropolitan District v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., supra, 507 U.S. at 233, 113 S.Ct. 1190 (Boston Harbor), that a similar PLA bid specification was not preempted by the National Labor Relations Act. We agree with the plaintiffs.
In Boston Harbor, an association of nonunion contractors sought to enjoin the enforcement of a mandatory bid specification that required all successful bidders and subcontractors to agree to abide by a PLA negotiated by the Massachusetts Water Resources Authority (MWRA) and the local trade unions. Id., at 221-22, 113 S.Ct. 1190. The association had challenged the bid specification on multiple grounds, including preemption under the National Labor Relations Act. Id., at 223, 113 S.Ct. 1190. After summarizing the preemption doctrines articulated in Garmon and Machinists, the United States Supreme Court concluded: "When we say that the [National Labor Relations Act] pre-empts state law, we mean that [it] prevents a [s]tate from regulating within a protected zone, whether it be a zone protected and reserved for market freedom, see Machinists, or for NLRB jurisdiction, see Garmon. A [s]tate does not regulate, however, simply by acting within one of these protected areas. When a [s]tate owns and manages property, for example, it must interact with private participants in the marketplace. In so doing, the [s]tate is not subject to pre-emption by the [National Labor Relations Act], because pre-emption doctrines apply only to state regulation.
"Because ... [the PLA bid specification] is not preempted by the [National Labor Relations Act], it follows that a preliminary injunction against enforcement of this bid specification was improper."
Although the issue in Boston Harbor was limited to whether federal preemption applied to the enforcement of an otherwise lawful PLA; see id., at 220, 113 S.Ct. 1190; the same logic applies to the plaintiffs' state law claims in the present case. Accordingly, we conclude that the plaintiffs' claims are not preempted by federal labor law under Garmon or Machinists because the city was acting in a proprietary capacity as a purchaser of construction services, rather than as a regulator, when it entered into the agreement with the local unions and imposed the mandatory PLA bid specification on successful bidders for the two school construction projects.
Moreover, this is not the only court that has reached such a conclusion. In George Harms Construction Co. v. New Jersey Turnpike Authority, 137 N.J. 8, 644 A.2d 76
The nonstate defendants argue that the plaintiffs in the present case asked the trial court to apply state law to preclude a public entity's right to utilize a PLA on a publicly funded construction project but that the United States Supreme Court has noted that denying a public entity the option to utilize a PLA, such as one available to a private owner or developer, places restrictions on Congress' intended free play of economic forces that the court identified in Machinists. The nonstate defendants thus argue that such a regulatory effort arguably falls within the Machinists doctrine and that the lower court lacks jurisdiction to hold the PLA "`illegal,'" as the plaintiffs have urged. The nonstate defendants, however, misconstrue the plaintiffs' claim. The plaintiffs are not claiming that a public entity should be precluded from utilizing a PLA on a publicly funded construction project but that the mandatory application of a PLA requirement to all contractors, subcontractors and field labor working on the school construction projects in this case and on other public school construction projects in Connecticut is a violation of the competitive bidding laws and state antitrust law. Accordingly, the plaintiffs' claim does not fall within the purview of Machinists, as the nonstate defendants contend, and we conclude that federal law does not preempt their state law claims. For this reason, we reject the nonstate defendants' alternative ground for affirmance of the trial court's judgment.
The state defendants claim that the trial court's dismissal of the plaintiffs' complaint for lack of standing can be affirmed in part on the alternative ground that the plaintiffs' claims against them
The following additional facts are relevant to our resolution of this claim. As previously noted, the trial court stated in its memorandum of decision that it would "not reach and decide the alternative grounds advanced in support of the defendants' motions to dismiss because ... the plaintiffs lack[ed] sufficient interest in the outcome of [the] controversy to justify deciding the issues thereby presented on the basis of their advocacy." Thereafter, the state defendants did not file a preliminary statement of issues within the required twenty days of the plaintiffs' filing of their preliminary statement of issues but waited more than seven months before filing a document entitled, "Defendants' Amended Preliminary Statement of the Issues," in which they identified as the sole issue whether the plaintiffs' claims were barred by the doctrine of sovereign immunity. They also did not file a cross appeal.
We first consider the plaintiffs' claim that the untimeliness of the state defendants' preliminary statement of issues and their failure to file a cross appeal are fatal procedural flaws. Practice Book § 63-4(a)(1) provides in relevant part: "If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed ... that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant's preliminary statement of the issues.
"Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue."
Practice Book § 61-8 provides: "Any appellee or appellees aggrieved by the judgment or decision from which the appellant has appealed may jointly or severally file a cross appeal within ten days from the filing of the appeal. Except where otherwise provided, the filing and form of cross appeals, extensions of time for filing them, and all subsequent proceedings shall be the same as though the cross appeal were an original appeal. No entry or record fee need be paid." We conclude that neither rule of practice precludes this court's consideration of the state defendants' sovereign immunity claim.
With respect to the untimely filing of the preliminary statement of issues, we concluded in Mickey v. Mickey, 292 Conn. 597, 603 n. 9, 974 A.2d 641 (2009), in which the procedural issues raised by the appellee as alternative grounds for affirmance had not been identified in the required preliminary statement, that, although the record did not indicate that the appellee had filed a preliminary statement, we nonetheless would review the issues because the appellant had not been prejudiced by the lack of such a statement. In the present case, the state defendants filed the required preliminary statement but the filing was merely untimely. Moreover, the plaintiffs have not argued that the untimely filing was prejudicial, and we see no reason why they would be prejudiced by our review of the state defendants' claim. See Practice Book § 63-4(a)(1) ("[w]henever the failure
With respect to the state defendants' failure to file a cross appeal, there would have been no reason for them to do so because they were not aggrieved by the trial court's dismissal of the plaintiffs' action. We thus proceed to consider the merits of the sovereign immunity claim.
We begin with the governing legal principles. "Sovereign immunity relates to a court's subject matter jurisdiction over a case ... and therefore presents a question of law over which we exercise de novo review.... The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law.... It has deep roots in this state and our legal system in general, finding its origin in ancient common law.... Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.... Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). The presumption of sovereign immunity is not absolute and may be overcome "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights ... and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted.) Id., at 720, 937 A.2d 675. "In making this determination, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed.... [When] there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Id., at 712, 937 A.2d 675.
In light of our conclusion in part III B of this opinion that the individual plaintiffs lack standing, and because the plaintiffs do not challenge the state defendants' sovereign immunity claim on the ground of legislative waiver, the only remaining issue is whether the state defendants fall within the sovereign immunity exception that they acted in excess of their statutory authority on the basis of the allegations in counts one and six of the plaintiffs' complaint. In this regard, the state defendants argue that they have not waived sovereign immunity because § 10-287 imposes a mandate on municipalities, not on the state defendants, to select the lowest responsible qualified bidder. Given the state's lack of participation in the bid selection process, the state defendants contend that there is no statutory duty that they exceeded with respect to the school construction projects. They argue that their conduct, as alleged in the complaint, is far too attenuated, remote and unrelated to the underlying issues to strip them of their sovereign immunity. They further point out that, on its face, the complaint alleges only that the state defendants "allow[ed]" the PLA to be implemented
The plaintiffs respond that the state defendants were not insignificant participants in the bidding process because § 10-287
"For a claim under the third exception [to sovereign immunity], the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations.... In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citation omitted; internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, supra, 284 Conn. at 721, 937 A.2d 675.
We conclude that the plaintiffs have failed to allege facts that reasonably support their claims against the state defendants. The principal allegations against the state defendants in the second amended complaint are that "the ... [department] is providing 90 [percent] of the funding for the entire [p]roject, including the [e]lectrical [b]id [p]ackage, through money paid by Connecticut taxpayers and allocated by the [s]tate [l]egislature" pursuant to §§ 10-287(b) and 4b-91 (c), which require that contracts shall be awarded to the lowest responsible qualified bidder prequalified under § 4a-100, "[a]t all times relevant hereto, the [department], acting by its [c]ommissioner or his agents, has been aware of [the] [c]ity's ... actions in imposing [the] mandatory PLA, and has continued to fund the [p]roject nonetheless," and "[b]y implementing [the] PLA, or allowing its implementation, for a public school construction project funded almost entirely by the taxpayers of the [s]tate of Connecticut and also the taxpayers of the [c]ity of Hartford, the [c]ity, the [department] and the [c]ommissioner are undermining the very object and integrity of the public competitive bidding process, and are exhibiting patent favoritism to the trade unions and to union contractors, all to the unfair and severe disadvantage of [nonunion] contractors, such as ECI and its individual plaintiff ... [nonunion] employees in this particular instance." Other paragraphs allege that the city imposed the PLA requirement, was the "awarding authority" and acted beyond its delegated authority in not awarding the contracts at issue to the lowest, responsible, qualified bidder. These allegations are insufficient to support a claim that the state defendants acted in excess of their statutory authority.
The judgment is reversed insofar as the trial court dismissed the claims of the named plaintiff, Electrical Contractors, Inc., against the defendants city of Hartford, Morganti Group, Inc., Downes Construction Company, LLC, and Custom Electric, Inc., and the case is remanded with direction to deny the motions to dismiss as to those claims and for further proceedings according to law; the judgment is affirmed insofar as the trial court dismissed the claims of the named plaintiff, Electrical Contractors, Inc., against the named defendant, the department of education, and the defendant Mark K. McQuillan, the commissioner of education, and insofar as the trial court dismissed the claims of the plaintiffs Jose L. Gonzalez, Jose G. Maldonado, Dan Czyzewski, Bradley Wheaton, Craig Busca and Sean Smith.
In this opinion ROGERS, C.J., and NORCOTT, PALMER, McLACHLAN and EVELEIGH, Js., concurred.
HARPER, J., concurring in part and dissenting in part.
In determining that the named plaintiff,
I agree with the majority that, under settled case law, the question of whether ECI has standing to allege a violation of the competitive bidding statutes turns on whether its claim meets the following standard: ECI "had to establish a colorable claim that: (1)[it] either (a) had submitted a bid or (b) would have submitted a bid but for the alleged illegalities in the bidding process and the precluded bid was functionally equivalent to the project specifications; and (2) the alleged illegalities amounted to fraud, corruption, favoritism or acts undermining the objective and integrity of the competitive bidding process." (Emphasis added.) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 181, 740 A.2d 813.
As our case law demonstrates, to fulfill this test's second prong, a plaintiff must make a colorable claim that the bidding process—from the development of project specifications and bidding rules to the application of these to bidders—was tainted by procedural impropriety. The court held that standing was appropriate in Spiniello Construction Co. v. Manchester, 189 Conn. 539, 545, 456 A.2d 1199 (1983), for example, because the defendant allegedly had accepted an irregular bid based on an oral rule addendum communicated only to one bidder, precluding other bidders from competing on equal terms. Conversely, in Ardmare Construction Co. v. Freedman, 191 Conn. 497, 499, 505, 467 A.2d 674 (1983), this court concluded that the plaintiff lacked standing to challenge the rejection of its lowest bid for failure to include a handwritten signature on the bid document because the signature requirement— however arbitrary or detrimental to the plaintiff—was uniformly applied and there was no showing of fraud or favoritism. This court reiterated the decisive significance of procedural irregularity in Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 696, 600 A.2d 1019 (1991), when it determined that an evidentiary hearing was required to determine whether the plaintiff's claim implicated such irregularities. There, the plaintiff had alleged that the state favored one vendor over others by using information it received from that vendor to draft requests for proposals that could be fulfilled only by that vendor and by providing information relevant to the requests exclusively to that vendor. Id., at 691, 600 A.2d 1019. The court concluded that this result—a single source bid specification—was not inherently illegal but that it would be invalid if it were intended to benefit the specific vendor rather than the public. We held that the plaintiff was entitled to an evidentiary hearing to determine
Here, ECI's long list of grievances; see footnote 23 of the majority opinion; fails to allege any of the features of procedural impropriety we previously have considered significant. There is no claim of informational asymmetry such that some bidders knew more than others, no claim that the defendants, the city of Hartford, the state department of education and its commissioner, and four other entities,
As the trial court properly recognized, this claim is essentially identical to one this court rejected in Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. 169, 740 A.2d 813, a case in which ECI also was a plaintiff as a subcontractor to the named plaintiff. In that case, we explained: "The crux of the association's claim is that its general contractor members were precluded from participation in the bid process because the project labor agreement requirement imposed costs upon nonunion general contractors that made it economically unfeasible for them to bid. As a result, the association argues, general contractors and the association have standing to challenge the project labor agreement as a specification that ... arbitrarily and anticompetitively limits access to the bidding process. The association contends that limiting the number of potential bidders violates not only the integrity of competitive bidding but also injures the general public by driving up the cost of government funded projects." Id., at 187, 740 A.2d 813.
Our reasoning in that case for concluding that such a claim did not provide a basis for standing bears repeating, as it applies with equal force to the present case: "Even assuming that the project labor
"The claim made by the [named plaintiff]... is much more sweeping than the one that we recognized in Unisys Corp. v. Dept. of Labor, supra, 220 Conn. at 690-91, 600 A.2d 1019. The objection to the specification in Unisys Corp. was not that [equipment from the defendant International Business Machines Corporation] would be more expensive, but that vendors of functionally equivalent hardware or software had been excluded from the bidding process. Id., at 691, 695, 600 A.2d 1019. Our focus was not on the possibility that a particular specification might limit the number of eligible bidders, but on whether the specification necessarily had an adverse impact on the integrity of the bidding process. See id., at 696, 600 A.2d 1019.
"As the trial court observed, the record... demonstrates a nondiscriminatory decision by the city to use a project labor agreement, in the public interest, to avoid delays in the project and to recruit and maintain the necessary workforce. The court reasonably determined that the city's legitimate business decision fell within the bounds of the discretion afforded to the city by our competitive bidding statutes.
"In conclusion, we reiterate our adherence to the boundaries of the standing principles established in our existing competitive bidding case law.... The determinative factor [under that case law] ... was not whether some bidders had been precluded from the bidding process but whether the requirements in that process had been applied consistently and in good faith.... That, essentially, is what has occurred in the present case as well." (Citations omitted; emphasis added.) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 187-89, 740 A.2d 813.
The reasoning and conclusions articulated in Connecticut Associated Builders & Contractors dictate the result here, and I am unconvinced by the majority's attempts to distinguish the present case from it and to diminish its precedential effect. The majority emphasizes that the court in Connecticut Associated Builders & Contractors did not reach the merits of the plaintiffs' claim, but that fact is irrelevant; the court in that case properly did not reach the merits because it lacked jurisdiction. The court articulated at
The subsequent enactment of prequalification requirements under General Statutes § 4a-100, moreover, does nothing to disturb the court's reasoning in Connecticut Associated Builders & Contractors. That statute has absolutely no bearing on what may be included in the specifications of a public project, such as a project labor agreement,
I further disagree with the majority's characterization of the comprehensive discussion of this issue in Connecticut Associated Builders & Contractors, which constituted one of the two grounds on which the court in that case concluded that it lacked subject matter jurisdiction, as "nothing more than dicta." The court declared at the outset of its analysis that "the plaintiffs did not establish that the general contractor members of the association had met either part of this test." (Emphasis added.) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 186, 740 A.2d 813. The two prongs of our test in Connecticut Associated Builders & Contractors are both threshold jurisdictional requirements that must be met for a plaintiff to have standing to pursue a hearing on the merits, and the trial court in the present case plainly held that neither was satisfied.
Nonetheless, even if this discussion were dicta, the reasoning expressed therein would retain its persuasive force. The claim dealt with in Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 178, 740 A.2d 813, "raise[d] no new issues of principle with respect to the requirements of standing, either in general or in the particular context of competitive bidding." Rather, the court simply applied established principles developed in previous cases.
The question of standing deals not only with a party's right to seek relief, but also with the fundamental authority of the court to consider an issue: "[i]f a party is found to lack standing, the court is without
In keeping with these principles, we have ordinarily recognized two grounds upon which a plaintiff may properly have standing to challenge government action: classical, or common-law, aggrievement and statutory aggrievement—standing conferred by statute. As the majority recognizes, ECI plainly does not have standing on either of these grounds. With respect to competitive bidding statutes, however, this court has taken the unusual step of establishing a quasi-statutory basis for standing that invokes the public oriented goals of competitive bidding laws but that is not specifically grounded in the statutory text. For many years prior to creating this new source of standing, this court had recognized that the competitive bidding statutes "are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption in the awarding of municipal contracts, and to secure the best work or supplies at the lowest price practicable, and are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest." (Internal quotation marks omitted.) Austin v. Housing Authority, 143 Conn. 338, 345, 122 A.2d 399 (1956). Under this traditional rubric, this court determined that disappointed bidders did not inherently have statutory standing; Joseph Rugo, Inc. v. Henson, 148 Conn. 430, 435, 171 A.2d 409 (1961); and in doing so the court noted that "[c]ourts will only intervene to prevent the rejection of a bid when the obvious purpose of the rejection is to defeat the object and integrity of competitive bidding." Id., at 434, 171 A.2d 409.
In Spiniello Construction Co. v. Manchester, supra, 189 Conn. at 543-45, 456 A.2d 1199, this court held for the first time that even though public bidding laws create no cause of action for disappointed bidders, such a bidder had standing to pursue a claim that a town had violated these laws by accepting a conditional combined discount bid based on an oral addendum known only to one bidder, precluding other bidders from competing on equal terms. In so holding, we reasoned that "[t]here is a growing trend for courts to permit one who has been aggrieved by a refusal to award a public contract pursuant to lowest responsible bidder provisions to also vindicate the public interest by challenging such arbitrary or capricious action by governmental officials."
I am uncertain of the source of authority underlying the court's decision in Spiniello Construction Co.
In Unisys Corp. v. Dept. of Labor, supra, 220 Conn. at 696, 600 A.2d 1019, the court reiterated the significance of procedural irregularities, noting that "[requests for proposals] are not necessarily illegal merely because the specifications of the [requests] can be met by only one vendor.... [M]ore must appear in order to render the specifications and the contract based thereon illegal.... [A]n objectionable and invalidating element is introduced when specifications are drawn to the advantage of one manufacturer not for any reason in the public interest but, rather, to insure the award of the contract to that particular manufacturer." (Internal quotation marks omitted.) Id. As this court later underscored in Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 188, 740 A.2d 813, "[o]ur focus [in Unisys Corp.] was not on the possibility that a particular specification might limit the number of eligible bidders, but on whether the specification necessarily had an adverse impact on the integrity of the bidding process." The court in Unisys Corp. v. Dept. of Labor, supra, at 695-96, 600 A.2d 1019, drew no ultimate conclusion as to standing, holding only that these allegations raising specific claims of information disparity involving one particular competitor were sufficient to warrant an evidentiary hearing.
As I previously have noted, in Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. 169, 740 A.2d 813, this court reaffirmed these limits on jurisdiction. The court announced: "In conclusion, we reiterate our adherence to the boundaries of the standing principles established in our existing competitive bidding case law.... The determinative factor, we held [in Ardmare Construction Co.], was not whether some bidders had been precluded from the bidding process but whether the requirements in that process had been applied consistently and in good faith.... That, essentially, is what has occurred in the present case as well." (Citations omitted.) Id., at 188-89, 740 A.2d 813.
I find troubling the majority's abandonment of these "boundaries of the standing principles established in our existing competitive bidding case law"; id., at 188, 740 A.2d 813; that plainly underlie the reasoning of Connecticut Associated Builders & Contractors and its predecessors. ECI complains not about procedural corruption but, rather, about discriminatory effect. As we explicitly held in Unisys Corp., however, even the most extreme form of discriminatory effect—a purchase order designed to be fulfilled only by a single possible bidder—does not alone create a basis for standing. ECI has failed to allege anything more than an unequal effect of an evenhanded process, and to permit
ECI's claim to standing under Connecticut's antitrust statutes does not suffer from the significant statutory and jurisprudential barriers discussed in part I of this concurring and dissenting opinion. In sharp distinction to the plain absence of a private cause of action under the competitive bidding statutes, "the legislature expressly has conferred standing on a broad range of individuals under the [Connecticut Antitrust Act (act)], including unsuccessful bidders in a municipal bidding process."
Nonetheless, I would conclude that ECI's claim is inadequately briefed and that we should withhold judgment on this complex issue until it is properly presented to us. The act implicates both state and federal legislative schemes; see Vacco v. Microsoft Corp., 260 Conn. 59, 72-73, 793 A.2d 1048 (2002) ("[t]he legislature amended the [act] in 1992 to make explicit its intent that the judiciary shall interpret the [act] in accordance with the federal courts' interpretation of federal antitrust law"); and it contains important exceptions pertaining to, among other things, organized labor. See General Statutes § 35-31. The trial court's memorandum of decision did not articulate that court's reasons for denying standing on this claim, and ECI's appellate brief does little more than identify the relevant statutes and point to three unilateral acts by the defendant city of Hartford: imposing the project labor agreement on all bidders for the project, imposing the project labor agreement on nonunion workers and refusing to award the contract to ECI. ECI also identifies this court's holding in Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. at 623, 854 A.2d 1066, in which we accorded standing to a disappointed low bidder who claimed that "it was not awarded the contract due to a conspiratorial agreement between a [labor] union and the defendant [city], with the purpose of obtaining a union contract." ECI, however, does not point to any such conspiratorial agreement either in its complaint at the trial court or in its brief on this issue.
While I would leave open the question of whether a colorable claim of an antitrust violation could be made out from the allegations in ECI's complaint, nonetheless it is improvident to reach any such conclusion on the basis of the underdeveloped record and the lack of adequate attention to this issue by the parties.
Accordingly, I respectfully dissent from these holdings.
We refer to the city, Morganti Group, Inc., Downes Construction Company, LLC, and Custom Electric, Inc., collectively as the nonstate defendants.
Dicin Electric Company also was named as a defendant. The plaintiffs, however, subsequently withdrew their claims against Dicin Electric Company.
Justice Harper's assertion, in his concurrence and dissent, that the court's analysis under the second part of the test did not constitute dictum disregards our well established precedent and flies in the face of the court's own reasoning. The court made absolutely clear that it did not regard both parts of the test as threshold jurisdictional requirements when it referred to the first part of the test as its "foundational element"; Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 186, 740 A.2d 813; and further explained that, even if that part of the test had been satisfied, the association "still" could not prevail under the second part of the test. Id., at 187, 740 A.2d 813. Moreover, to the extent Justice Harper cites twelve other cases as "weighty authority" for the proposition that the two parts of the test serve as independent grounds to support a judgment on standing, all but one are unpersuasive because they are from other jurisdictions, and the remaining Connecticut case lacks the dispositive language in Associated Builders & Contractors describing the first part of the test that was applied in that case as a threshold requirement.
Although the parties raise no issues pertaining to the hearing in this case, we note that such a hearing is not typically required or held when the court is considering a motion to dismiss. As we explained in Conboy v. State, 292 Conn. 642, 974 A.2d 669 (2009), trial courts addressing motions to dismiss for lack of subject matter jurisdiction apply different rules and procedures depending on the state of the record at the time the motion is filed: "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . .
"In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence. . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.. . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits. . . or other evidence, the trial court may dismiss the action without further proceedings.. . . If, however, the defendant submits either no proof to rebut the plaintiffs jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint. . . but may rest on the jurisdictional allegations therein. . . .
"Finally, [when] a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits.. . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; internal quotation marks omitted.) Id., at 651-54, 974 A.2d 669.
To the extent this court stated in Associated Builders & Contractors that "the trial court was required to conduct an evidentiary hearing to decide whether the plaintiffs had established a colorable claim that the [PLA] requirement had undermined the integrity or objective of the competitive bidding process"; (emphasis added) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 182, 740 A.2d 813; or declared in the companion case of Connecticut Associated Builders & Contractors v. Anson, 251 Conn. 202, 740 A.2d 804 (1999), that "the evidentiary showing for standing . . . was [the association's] burden to make"; id., at 214, 740 A.2d 804; we now clarify that, in most cases involving competitive bidding on public contracts, the allegations alone should provide a sufficient factual basis for deciding the jurisdictional issue of whether the plaintiff made a colorable claim of injury. Because the parties in the present case agreed, however, that the trial court could consider the materials and documents they had filed in federal court, all future references to the record in this case include that documentation as well as the facts alleged in the complaint.
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"(c) The application form shall, at a minimum, require the applicant to supply information concerning:
"(1) The applicant's form of organization;
"(2) The applicant's principals and key personnel and any names under which the applicant, principals or key personnel conducted business during the past five years;
"(3) Any legal or administrative proceedings pending or concluded adversely against the applicant or any of the applicant's principals or key personnel within the past five years which relate to the procurement or performance of any public or private construction contract and whether the applicant is aware of any investigation pending against the applicant or any principal or key personnel;
"(4) The nature of any financial, personal or familial relationship between the applicant and any public or private construction project owner listed on the application as constituting construction experience;
"(5) A statement of whether (A) the applicant has been disqualified pursuant to section 4b-95, this section or section 31-57c or 31-57d, (B) the applicant is on the list distributed by the Labor Commissioner pursuant to section 31-57a, (C) the applicant is disqualified or prohibited from being awarded a contract pursuant to section 31-57b, (D) the applicant has been disqualified by another state, (E) the applicant has been disqualified by a federal agency or pursuant to federal law, (F) the applicant's registration has been suspended or revoked by the Department of Consumer Protection pursuant to section 20-341gg, (G) the applicant has been disqualified by a municipality, and (H) the matters that gave rise to any such disqualification, suspension or revocation have been eliminated or remedied; and
"(6) Other information as the commissioner deems relevant to the determination of the applicant's qualifications and responsibilities.
"(d) The applicant shall include a statement of financial condition prepared by a certified public accountant which includes information concerning the applicant's assets and liabilities, plant and equipment, bank and credit references, bonding company and maximum bonding capacity, and other information as the commissioner deems relevant to an evaluation of the applicant's financial capacity and responsibility.
"(e) Information contained in the application shall be current as of the time of filing except that the statement of financial condition shall pertain to the applicant's most recently-completed fiscal year.
"(f) The commissioner shall determine whether to prequalify an applicant on the basis of the application and on relevant past performance according to procedures and criteria set forth in regulations which the commissioner shall adopt on or before October 1, 2005, in accordance with chapter 54. Such criteria shall include, at a minimum, the record of the applicant's performance, including, but not limited to, written evaluations of the applicant's performance on public or private projects, the applicant's past experience on projects of various size and type, the skill, ability and integrity of the applicant and any subcontractors used by the applicant, the experience and qualifications of supervisory personnel employed by the applicant, the maximum amount of work the applicant is capable of undertaking as demonstrated by the applicant's financial condition, bonding capacity, size of past projects and present and anticipated work commitments, and any other relevant criteria that the commissioner prescribes. Such regulations shall also (1) provide that the criteria considered shall be assigned separate designated numerical values and weights and that the applicant shall be assigned an overall numerical rating on the basis of all criteria, and (2) establish prequalification classifications, aggregate work capacity ratings and single project limits. Such prequalification classifications shall be used to establish the types of work a contractor or substantial subcontractor is qualified to perform and the aggregate work capacity ratings shall be used to establish the maximum amount of work a contractor or substantial subcontractor is capable of undertaking.
"(g)(1) The applicant shall indicate the prequalification classifications, aggregate work capacity ratings and single project limits that are sought. The commissioner may issue a certificate of prequalification to any applicant who meets the requirements of this section. Such certificate shall be effective for one year from the date issued and shall indicate the contractor's or substantial subcontractor's prequalification classifications, aggregate work capacity ratings and single project limits.. . .
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"(i) The commissioner may not issue or renew a prequalification certificate to any contractor or substantial subcontractor (1) who is disqualified pursuant to section 31-57c or 31-57d, or (2) who has a principal or key personnel who, within the past five years, has a conviction or has entered a plea of guilty or nolo contendere for or has admitted to commission of an act or omission that reasonably could have resulted in disqualification pursuant to any provision of subdivisions (1) to (3), inclusive, of subsection (d) of section 31-57c or subdivisions (1) to (3), inclusive, of subsection (d) of section 31-57d, as determined by the commissioner.
"(j) The commissioner may revoke a contractor's or substantial subcontractor's prequalification or reduce the contractor's or substantial subcontractor's prequalification classification or aggregate work capacity ratings, after an opportunity for a hearing, if the commissioner receives additional information that supports such revocation or reduction. During the course of such hearing process, the commissioner may suspend a contractor's or substantial subcontractor's prequalification certificate if the commissioner determines that there is probable cause to believe that such contractor or substantial subcontractor engaged in conduct that significantly undermines the skill, ability or integrity of such contractor or substantial subcontractor. Any such suspension shall not exceed a period of three months and shall be accompanied by a written decision of the commissioner that sets forth the reasons for and duration of such suspension. The commissioner shall send notification of any such suspension to such contractor or substantial subcontractor by certified mail, return receipt requested. Such contractor or substantial subcontractor may file a response, in writing, not later than thirty days after receipt of such notice. The commissioner shall review any such response submitted by a contractor or substantial subcontractor within such thirty-day period.
"(k)(1) Any substantial evidence of fraud in obtaining or maintaining prequalification or any materially false statement in the application, update statement or update bid statement may, in the discretion of the awarding authority, result in termination of any contract awarded the contractor by the awarding authority. . . .
"(2) The commissioner shall deny or revoke the prequalification of any contractor or substantial subcontractor if the commissioner finds that the contractor or substantial subcontractor, or a principal or key personnel of such contractor or substantial contractor, within the past five years (A) has included any materially false statement in a prequalification application, update statement or update bid statement, (B) has been convicted of, entered a plea of guilty or nolo contendere for, or admitted to, a crime related to the procurement or performance of any public or private construction contract, or (C) has otherwise engaged in fraud in obtaining or maintaining prequalification. Any revocation made pursuant to this subsection shall be made only after an opportunity for a hearing. Any contractor or substantial subcontractor whose prequalification has been revoked pursuant to this subsection shall be disqualified for a period of two years after which the contractor or substantial subcontractor may reapply for prequalification, except that a contractor or substantial subcontractor whose prequalification has been revoked on the basis of conviction of a crime or engaging in fraud shall be disqualified for a period of five years after which the contractor or substantial subcontractor may reapply for prequalification. The commissioner shall not prequalify a contractor or substantial subcontractor whose prequalification has been revoked pursuant to this subdivision until the expiration of said two-year, five-year, or other applicable disqualification period and the commissioner is satisfied that the matters that gave rise to the revocation have been eliminated or remedied.
"(l) The commissioner shall provide written notice of any revocation, disqualification, reduction in classification or capacity rating or reinstated prequalification to the Commissioner of Public Works, the Commissioner of Consumer Protection and the President of The University of Connecticut not later than thirty days after any final determination. . . ."
"The plaintiffs observe . . . that standing concerns . . . the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question and does not involve an inquiry into the merits of the claim. According to the plaintiffs, whether adoption of the [PLA] requirement was within the [defendant's] discretion was a question separate and apart from the question of their standing to challenge the [defendant's] action.
"The general rule of standing cited by the plaintiffs is not contested. As the trial court noted, however, that rule is not inconsistent with the particular standard applicable to disappointed and would-be bidders: By requiring [the association] to produce evidence that the bidding process was undermined by fraud, corruption or favoritism, the court is simply forcing the party challenging the competitive bidding process to make a colorable claim of injury that it is within the zone of interests protected by the competitive bidding laws. . . . Although the plaintiffs were not required to prove the merits of their claim, they did have the lesser burden of establishing a colorable claim. See Maloney v. Pac, [183 Conn. 313, 321, 439 A.2d 349 (1981)]. . . . The trial court's determination that the decision to adhere to a [PLA] was within the [defendant's] discretion and the bounds of the competitive bidding statutes, therefore, did not exceed the limits of our case law." (Citation omitted; emphasis in original; internal quotation marks omitted.) Connecticut Associated Builders & Contractors v. Hartford, supra, 251 Conn. at 181-82, 740 A.2d 813.
"It is impossible to reconcile these findings with any conclusion other than that the association failed to establish that the use of a [PLA], under the circumstances of [the] case, constituted an infringement of the constitutional rights of its members. The constitution is not violated simply because a public agency adopts a legitimate public policy that runs counter to the philosophical views or business practices espoused by the membership of the association. The association did not make the evidentiary showing for standing that was its burden to make." (Emphasis added; internal quotation marks omitted.) Connecticut Associated Builders & Contractors v. Anson, supra, 251 Conn. at 213-14, 740 A.2d 804. We reiterate that the court's reference to an evidentiary showing must be understood in light of our analysis in Conboy. See footnote 17 of this opinion.
Although article first, § 20, of the Connecticut constitution has been amended by articles five and twenty-one of the amendments to the Connecticut constitution, the classes of persons to which protection was extended under these amendments are not relevant for purposes of the individual plaintiffs' claims in this case.
"Section 301 [provides that] . . . `state law is preempted insofar as resolution of the state law claim requires the interpretation of a collective bargaining agreement.' . . . Section 301 preemption does not apply for at least two reasons.
"First, I do not believe that interpretation of a collective bargaining agreement or other labor agreement is required in this case. Referral to that agreement, reference to it, reading it, understanding what it says is required. It is not required that the judge hearing this case interpret . . . a labor agreement.
"Moreover, § 301 preemption occurs in a case where parties to a collective bargaining agreement disagree about their rights or obligations under that agreement, and that is simply not what we have in this case. We don't have a union or union member suing an employer or vice versa. Rather, we have a disappointed bidder suing a number of parties and claiming that the obligation in the bid documents to use union labor is unlawful. That simply is not the type of claim that § 301 reaches."
"(2) All orders and contracts for architectural or construction management services shall be awarded from a pool of not more than the four most responsible qualified proposers after a public selection process. Such process shall, at a minimum, involve requests for qualifications, followed by requests for proposals, including fees, from the proposers meeting the qualifications criteria of the request for qualifications process.... Following the qualification process, the awarding authority shall evaluate the proposals to determine the four most responsible qualified proposers using those criteria previously listed in the requests for qualifications and requests for proposals for selecting architectural or construction management services specific to the project or school district. Such evaluation criteria shall include due consideration of the proposer's pricing for the project, experience with work of similar size and scope as required for the order or contract, organizational and team structure for the order or contract, past performance data, including, but not limited to, adherence to project schedules and project budgets and the number of change orders for projects, the approach to the work required for the contract and documented contract oversight capabilities, and may include criteria specific to the project. Final selection by the awarding authority is limited to the pool of the four most responsible qualified proposers and shall include consideration of all criteria included within the request for proposals. As used in this subdivision, `most responsible qualified proposer' means the proposer who is qualified by the awarding authority when considering price and the factors necessary for faithful performance of the work based on the criteria and scope of work included in the request for proposals.
"(c) If the commissioner determines that a building project has not met the approved conditions of the original application, the State Board of Education may withhold subsequent state grant payments for said project until appropriate action, as determined by the commissioner, is taken to cause the building project to be in compliance with the approved conditions or may require repayment of all state grant payments for said project when such appropriate action is not undertaken within a reasonable time.
"(d) Each town or regional school district shall submit a final grant application to the Department of Education within one year from the date of completion and acceptance of the building project by the town or regional school district. If a town or regional school district fails to submit a final grant application within said period of time, the commissioner may withhold ten per cent of the state reimbursement for such project."
The plaintiffs also refer to the state defendants' authority pursuant to General Statutes § 49-41, which requires that contractors provide to the state or municipality performance bonds for contracts to construct, modify or repair public buildings and public works.
The potentially absurd results invited by the majority's undifferentiated emphasis on cost may be illustrated by considering a hypothetical challenge under the competitive bidding statutes to a public project based on material, rather than labor, costs. Suppose a public entity solicits bids to construct a building with a slate roof, rather than an asphalt shingled roof. The decision to specify the roofing materials is made on the basis of desired longevity, aesthetic preference, or arbitrary whim. Slate is much more difficult to work with than asphalt, and only a subset of contractors possess the skill and access to materials needed to work with slate efficiently. Other contractors, who out of habit, aesthetic preference, or chance do not typically work with slate, are therefore, as ECI here complains, placed at a significant competitive disadvantage because of the specified material input. Under the logic of the majority opinion, if a "non-slate" contractor were to submit a low bid, conditional on being allowed to construct the roof from asphalt, and the bid were rejected, the disappointed noncompliant bidder would have standing to bring an action based on a claimed violation of competitive bidding laws by asserting that requiring slate roofs would decrease competition and increase the costs to the public. This is plainly nonsensical and inconsistent with the limited grounds of standing permitted under existing Connecticut legislation. There might be reason to doubt the wisdom of insisting on a slate roof, particularly if the decision is the product of arbitrary whim, and there may be cause for questioning the mandated use of arguably more expensive union labor. But under the present constitutional division of power, in the absence of a colorable claim of procedural corruption, these are judgments to be made by the legislature, not by this court.
