Contact: Tremont Public Advisors 860-986-7737
Hartford – Tremont Public Advisors LLC released the following statement today concerning the Connecticut Supreme Court ruling in its anti-trust case against quasi-public state agency the Materials Innovation Recycling Authority (MIRA, formerly known as CRRA):
“For at least fifteen years since its decision in Cheryl Terry Enterprises, Ltd. v. Hartford (SC 17067)[i] the Supreme Court has allowed unsuccessful bidders to challenge the award of a public contract where fraud, corruption or acts undermining the objective and integrity of the bidding process existed[ii] using the Connecticut Anti-Trust Act. Yesterday’s ruling overturns this precedent and leaves bidders who obtain evidence of corruption in the public bidding process no effective recourse in the courts.
Though we appreciate the Supreme Court’s recognition that we had gathered ample evidence of impropriety in MIRA’s bidding process, we were stunned by the Court’s adoption of the position that no amount of corruption and illegality in the public bidding process could trigger an anti-trust violation under Connecticut law, even if that corruption reduced the number firms willing to reply to public bids. The Court stated in part:
‘Although the bribes may have been illegal and unfair methods of competition, their illegality and unfairness[do] not support an inference that the bribes restrained competition. On the contrary, bribery could have been consistent with intense competition among the suppliers—some of which resorted to illegal measures to gain an advantage……
We see little to distinguish an agreement to provide illegal services in exchange for the award of a public contract from an agreement to give a bribe in exchange for a public contract. We conclude, therefore, that an antitrust injury cannot be inferred from the plaintiff’s allegation in the present case that the defendant awarded the liaison services contract to Brown Rudnick because that firm was willing to provide statutorily prohibited lobbying services to the defendant…..
[A]n allegation that a public entity has awarded a contract to a preselected bidder for corrupt reasons and in violation of a competitive bidding statute does not give rise to an antitrust injury. To the extent that our decision in Cheryl Terry Enterprises, Ltd., is inconsistent with this conclusion, it is overruled…
Accordingly, even if we were to assume in the present case that potential bidders chose not to submit bids for the liaison services contract because they were aware that the defendant would award the contract only if the bidder would agree to provide illegal lobbying services, and the potential bidders did not want or were unable to provide such services, the defendant’s conduct did not prevent them from competing..’[iii]
Yesterday’s ruling has considerable policy implications for those concerned about the integrity of public bidding in Connecticut especially in cases involving municipalities and quasi-public agencies. The Governor and General Assembly should carefully review the implications of this ruling upending fifteen years of precedent.
We want to thank our legal team headed by Michael Harrington of Ford Harrison LLP who led our prior success at the Connecticut Supreme Court forcing MIRA to turn over hundreds of emails with lobbyists illegally withheld in violation of the Freedom of Information Act[iv]. We will be reviewing the decision carefully and determine what our next steps will be.”
[i] https://law.justia.com/cases/connecticut/supreme-court/2004/270cr138.html
[ii] https://caselaw.findlaw.com/ct-supreme-court/1594236.html
[iii][iii] https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR333/333CR62.pdf
[iv][iv] https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR323/323CR106.pdf