Fortress, Inc. v. Massachusetts Emergency Management Agency (Lawyers Weekly No. 09-025-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2014-3904 BLS 1 FORTRESS, INC. vs. MASSACHUSETTS EMERGENCY MANAGEMENT AGENCY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The sole theory of defendant’s motion for summary judgment is that plaintiff, Fortress, Inc., did not qualify for special consideration of its bid for a contract because its principal place of business was not in Massachusetts. If Fortress did not qualify for special consideration, its claim for breach of contract against defendant, Massachusetts Emergency Management Agency (“MEMA”), based on losing the bid, fails. Whether Fortress’s principal place of business was in Massachusetts is the subject of approximately 25 numbered paragraphs of the parties’ Joint Statement of Undisputed Facts (“JSUF”). Notwithstanding the title of the JSUF suggesting that the facts are undisputed, at least 15 of those paragraphs are expressly disputed, either by MEMA or by Fortress. Thus, the issues before the court are (a) whether the disputed paragraphs of the JSUF are properly supported as required under Superior Court Rule 9A, and (b) whether the existence of the dispute is material such that summary judgment must be denied. This case arises out of a dispute between Fortress and MEMA regarding a Request for Responses (“RFR”) issued by MEMA in May 2014. The RFR solicited bids to provide Standard 1 Operating Procedure manuals for the Commonwealth’s emergency operations centers. The RFR indicated that it was targeted to solicit bids from small businesses participating in the Commonwealth’s Small Business Purchasing Program (“SBPP”). The RFR stated that MEMA intended “to evaluate bid responses from and to award a contract to a SBPP-participating business(es) who submit a bid that meets or exceeds the solicitation criteria only.” If no SBPP qualified vendors submitted a responsive bid, MEMA reserved the right to award the contract to a non-SBPP business. Fortress submitted a bid to the RFR as a SBPP qualified vendor. Fortress had previously registered as a SBPP qualified vendor through an online form on the website of the Commonwealth’s Operational Services Division (“OSD”). MEMA, however, awarded the contract to a different vendor who was not qualified as a SBPP vendor. MEMA determined that Fortress was not qualified as a SBPP vendor because its principal place of business was not in Massachusetts. When Fortress’s bid was evaluated as a non-SBPP bid, it scored lower than the winning bid of a different non-SBPP vendor. MEMA moves for summary judgment on the single ground that Fortress did not qualify as a SBPP vendor. Absent such qualification, MEMA argues that Fortress’s claim fails. The reason Fortress does not qualify, according to MEMA, is because Fortress’s principal place of business was not in Massachusetts. The SBPP was established in 2010 by […]

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