Attorney General: Honorable Emil H. Frankel, Department of Transportation, 1991-026 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 29, 1991

Honorable Emil H. Frankel
Commissioner
Department of Transportation
24 Wolcott Hill Road
Wethersfield, CT 06109

Dear Commissioner Frankel:

This is in response to your letter of July 22, 1991, in which you seek our opinion on whether the Department of Transportation ("DOT") has the authority to cancel the unexpended balance of purchase orders that the DOT has issued to Hartford Paving Inc. ("Hartford Paving") for bridge painting services under Contract Award No. 89--A-13-1054-C. You further ask whether the DOT can avoid contracting with Hartford Paving on future painting projects and instead use other companies listed in the contract award.

By way of background, it is our understanding that the DOT made a determination that it was in need of various rental services for repair work to be performed on state highway bridges. The DOT brought this need to the attention of the Department of Administrative Services ("DAS") which, subject to certain exceptions not herein applicable, is charged with the responsibility of purchasing or contracting for all supplies, materials, equipment and contractual services required by any state agency. See, Conn. Gen. Stat. 4a-51. In response, DAS issued an announcement on November 28, 1989 soliciting bids for bridge repair rental services in accordance with section 4a-57 of the Connecticut General Statutes. The bid solicitation set forth the particular services, including equipment, that the DOT required and also set forth the terms and conditions that would be made part of the contract for said services.

On January 3, 1990, the DAS opened the bids it had received in answer to the solicitation and on January 24, 1990, after consultation with the DOT, DAS made a contract award in which it listed twenty (20) companies as being eligible to provide various items of bridge repair rental services for the DOT. See, Contract Award No. 89-A-13-1054-C. Six (6) of these companies, including Hartford Paving, were listed as eligible to do bridge painting work under Item No. 4 of the contract award. Of these 6 companies, Hartford Paving quoted the lowest per unit prices for work in DOT District No. 1 and therefore the DOT has issued purchase orders to this company under Contract Award No. 890-A-13-1054-C for bridge painting work in District No. 1.

We understand from DOT that Hartford Paving's performance under the purchase orders has not always been satisfactory. According to a DOT report, on August 9, 1990 a Hartford Paving employee was found to be sleeping at one of the bridge painting job sites. This incident was reported to an official at Hartford Paving. Notwithstanding the report of this incident, some eight days later (August 17th) and entire Hartford Paving work crew was found to be sleeping at the same work site. The president of Hartford Paving was notified of this unacceptable conduct and a formal written complaint was submitted tot he DAS, bureau of Purchases, in accordance with the procedure set forth in the contract award:

A complete explanatory report shall be furnished promptly to the Bureau of Purchases concerning services performed on orders place against awards listed herein which are found not to comply with the specifications, or which are otherwise unsatisfactory from the Dept. of Transportation's viewpoint.

Contract Award No. 890-A-13-1054-C, page 3.

On April 17, 1991, an inspection of the work being done on Bridge #3370 on Olive Street in Hartford, Connecticut, disclosed that Hartford Paving was using a 180 cfm air compressor whereas the contract specifications required the use of an air compressor capable o delivering a minimum of 250 cfm. This conduct was a clear violation of the contract. Again, Hartford Paving was notified of this unacceptable conduct and a written complain was submitted to DAS, Bureau of Purchases.

More recently, DOT has been informed that Hartford Paving's certificate of registration under the Home Improvement Act, Conn. Gen. Stat. 418 et seq., has been revoked by the Department of Consumer Protection and that Hartford Paving was ordered to pay approximately $49,000.00 in restitution to customers but that it has failed to do so.

Under these circumstances, you have posed two questions.

  1. Can the Department of Transportation cancel the unexpended balance of its purchase orders to this firm?

It is our understanding that Hartford Paving is currently providing painting services on four DOT bridges. Under the terms and conditions governing the award of work under Contract Award No. 890-A-13-1054-C,

The State reserves the right to cancel any contract where, in its opinion, the bidder is not satisfactorily giving the service required or meeting reasonable production standards. Termination shall be immediate upon written notification to the bidder.

Contract Award No. 890-A-13-1054-C, Rental of Services (Bridge Repair Units), Special Bid Terms & Conditions, page 2. (Emphasis in contract). The General Bid Terms and Conditions contains essentially the same language:

Cancellation Clause: The State reserves the right to cancel any contract where, in its opinion, the contractor is not satisfactorily giving the service required or meeting reasonable production standards. Termination shall be immediate upon written notification tot he contractor.

Id., page 9. (Emphasis in contract).

As noted above, it is the DAS which has been given the general authority under the Connecticut General Statutes to purchase or contract for contractual services required by state agencies. In this regard, it was the DAS, rather than the DOT, which made the determination that Hartford Paving was eligible to provide bridge painting services for the DOT. It follows that it is the DAS, rather than the DOT< which is given the authority to cancel any contract awarded to Hartford Paving if DAS is of the opinion that Hartford Paving "is not satisfactorily giving the service required or meeting reasonable production standards." In making this determination, however, one would fully expect that DAS will given appropriate consideration to any recommendations made by DOT. After all, DOT possesses the technical expertise regarding the operable work standards and specifications, it is the DOT that monitors Hartford Paving's actual job performance and the work is being done on property (bridges) that DOT oversees. The DOT should therefore review the quality of the work that Hartford Paving is providing the State under its present purchase orders. The DOT should consider the company's present performance and the company's past violations and make a recommendation to DAS as to whether the unexpended balance of the current purchase orders should be cancelled. If Hartford Paving's overall work under the contract is not satisfactory, the unexpended balance of the current purchase orders may be cancelled.

  1. Can the Department of Transportation avoid future contracting with this firm and use other firms that are on the Contract Award?

The short answer to this question is Yes.

Hartford Paving is only one of six firms that are eligible to do bridge painting work for the DOT under Contract Award No. 890-A-13-1054-C. Although the DAS is given the authority for determining which bidders are eligible for listing o the contract award, it is the DOT that selects from among the list of potential contractors the firm or firms who will actually perform work on specific bridge projects. This is accomplished through the issuance of purchase orders.

In making its selection from the six eligible firms, the DOT should be guided by the standard articulated by the legislature in Section 4a-59 of the Connecticut General Statutes. This statute sets forth the requirement that service contracts be awarded to the "lowest responsible qualified bidder." Section 4a-59 defines this term to "mean[] the bidder whose bid is the lowest for those bidders possessing the skill, ability and integrity necessary to faithful performance of the work based on objective criteria considering past performance and financial responsibility." Conn. Gen. Stat. 4a-59(a). Under this standard the fact that Hartford Paving's past performance--e.g., the sleeping incidents and the improper air compressor--and other factors such as integrity to determine whether under the circumstances Hartford Paving should continue to be given bridge painting work. With respect to the issue of "integrity," the situation involving Hartford Paving's home improvement activities and its apparent failure to comply with an order that it pay restitution to consumers have obvious relevance and therefore may appropriately be considered when deciding whether to give any additional work to Hartford Paving.

In view of the foregoing, it is our opinion that the DOT lacks the ultimate authority to cancel the unexpended balance of those purchase orders issued to Hartford Paving--this authority resides with DAS. However, the DOT should determine whether the performance of Hartford Paving is satisfactory under the contract and make a recommendation to DAS as to whether the unexpended balance of its purchase orders should be cancelled. DOT is not required to award future work to Hartford Paving merely because it has submitted the lowest unit prices. The DOT may consider other relevant factors, such as past performance and integrity, in making its choice of contractors.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

RB/mfk


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