State May Not Disclose Trade Secrets Submitted as Part of RFP Response

If you have ever agonized about whether to include certain confidential business information in a bid for a state contract in New Hampshire because of concerns that your competitors might get their hands on it, you should find some comfort in the New Hampshire Supreme Court’s recent decision in CaremarkPCS Health, LLC v. New Hampshire Department of Administrative Services, No. 2014-120.  In 2010, the Department issued a Request for Proposals (RFP) for pharmacy benefit management services for the State of New Hampshire’s health plan.  Caremark submitted a bid and ultimately obtained a contract with the State to perform the work.   

In 2011, the Department received multiple requests to inspect and copy Caremark’s bid and the final contract. Two of the requests were made by Caremark’s competitors. Caremark, after being informed by the Department of the requests, responded that certain confidential information contained in the bid and final contract was exempt from disclosure under the Right-to-Know Law. The Department and Caremark disputed whether certain information was subject to disclosure.  When the parties failed to resolve the dispute, Caremark filed a petition for declaratory and injunctive relief seeking to enjoin the Department from disclosing certain information.

After Caremark prevailed at the trial court level, the Department appealed to the New Hampshire Supreme Court claiming that the Uniform Trade Secrets Act did not trump the public’s right to information under the Right to Know Law.  The Supreme Court disagreed.  The Court concluded that the Department’s disclosure of Caremark’s trade secrets to its competitors would constitute “misappropriation” under the Uniform Trade Secrets Act and therefore constituted an exception to New Hampshire’s Right to Know Law.  It also rejected the Department’s argument that public policy favored disclosure concluding that when the legislature enacted the Uniform Trade Secret Act it “made the policy determination to prohibit the misappropriation of trade secrets.”

Project Management Firm Not Liable for Subcontractor’s Injuries

The Suffolk (MA) Superior Court, in Rodrigues, et al. v. Tribeca Builders Corp., et al. (Civil Action No. 13-00730-C), recently granted summary judgment to a project management firm retained by a property’s landlord/owner, who was sued after the Plaintiff was injured at a construction site.  The Plaintiff was injured when a handicap chair-lift he was helping to move at the construction site fell on him.  The Plaintiff was employed by a subcontractor hired by the general contractor.  The Plaintiff brought claims against the general contractor, another subcontractor, and the project management firm hired by the landlord to provide project management services on its behalf.

The Court held that the project management firm owed no duty to the Plaintiff, and thus the Plaintiff could not assert a negligence claim against it.  In reviewing the contract between the landlord and project management firm, the Court found that the project management firm was to carry out a variety of logistical, managerial and administrative functions related to the construction, most of which involved monitoring the project’s adherence to its agreed budget and schedule.  The Court described the firm’s role as that of a conventional “Clerk of the Works,” functioning as they eyes and ears of the owner in respect to the administration of the project.  Nothing in the contract between the owner/landlord and the project management firm remotely suggested that the firm’s administrative functions extended in any way to matters of construction safety.  The Court also noted that the firm had no contractual relationship with the Plaintiff, the general contractor, or any subcontractors.

The Court also pointed out that even if the project management firm could somehow be deemed to owe a duty of care to the Plaintiff, the undisputed evidence was clear that the firm had nothing at all to do with the accident that injured Plaintiff.  The firm did not attend or participate in safety meetings, did not direct or instruct anyone regarding how their work should be performed, and had no knowledge of, involvement in, or communications regarding the handicap chair-lift that injured the Plaintiff, or the equipment used to move it. 

In sum, the Court noted that while the project management firm played a significant administrative role in coordinating the scheduling and other logistical aspects of the construction project, there is no evidence that it was in “control” of the job-site, directed the work of any subcontractors, or had any connection whatsoever to the operations or movement of the chair-lift that caused the Plaintiff’s injury.