Chick's Const. Co. v. Wachusett Regional High School Dist. School Committee

• Decision Date: 14 June 1961
• Citation: Chick's Const. Co. v. Wachusett Regional High School Dist. School Committee, 175 N.E.2d 502, 343 Mass. 38 (Mass. 1961)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHICK'S CONSTRUCTION COMPANY, Inc. v. WACHUSETT REGIONAL HIGH SCHOOL DISTRICT SCHOOL COMMITTEE.

Page 502

175 N.E.2d 502

343 Mass. 38

CHICK'S CONSTRUCTION COMPANY, Inc. v.WACHUSETT REGIONAL HIGH SCHOOL DISTRICT SCHOOL COMMITTEE.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 4, 1961.

Decided June 14, 1961.

Frank Howard, Worcester, for petitioner.

Paul L. Hinckley, Worcester, for Wachusett Regional High School District School Committee.

Seward B. Brewster, Worcester, for Granger Contracting Co., Inc.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.

KIRK, Justice.

The petitioner appeals from an order dismissing its petition for a writ of certiorari seeking to quash the action of the respondent committee in awarding a general contract to Granger Contracting Co., Inc., hereinafter called Granger, for the construction of an addition to Wachusett Regional High School, and praying that the contract be awarded to the petitioner.G.L c. 213, § 1D, as amended bySt.1957, c. 155.Granger was allowed to intervenue as a partyrespondent.This procedure, as we have frequently stated, is irregular because only the members of the tribunal whose action is to be questioned are proper respondents to a petition for a writ of certiorari.Grande & Son, Inc. v. School Housing Committee of North Reading, 334 Mass. 252, 254, 135 N.E.2d 6.It was not improper, however, to hear argument from Granger as an interested private party, and all concerned in the case appear to have assented to the irregularity.Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8, 150 N.E. 903;Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527, 528-529, 120 N.E.2d 766.

The case was heard upon the petition and return and certain stipulations.The respondent committee was the awarding authority under G.L. c. 149, §§ 44A-44L.¹The Form for General Bid contained, in addition to the provisions required by G.L. c. 149, § 44F, the following provisions for rock and ledge excavation:

'1.ROCK EXCAVATION shall consist of boulders one cubic yard or over including removal and disposal as directed ... $... per cu. yd.

'2.LEDGE EXCAVATION shall consist of rock strata that has to be drilled, then feathered and wedged apart or blasted to be removed.

'The undersigned shall include in Item I (Work of the General Contractor) the sum of ($...) for the removal and disposal of the following:

150 cu. yds. of trench ledge excavation ... cu. yds.@ ($...). . . ($...)

150 cu. yds. of open ledge excavation ... cu. yds.@ ($...). . . ($...)

Unit price per cu. yd. to remove and dispose of trench ledge excavation in excess of 150 cu. yds. . . .($...) per cu. yd.

Unit price per cu. yd. to remove and dispose of open ledge excavation in excess of 150 cu. yds. . . .($...) per cu. yd.'

All of the original bids for the work were rejected because they were in excess of the appropriation.The following changes thereupon were made in the 'Form of Proposal--General Bid': 'Omit the inclusion of ledge excavation allowance money from the contract.(150 cys. of trench ledge and 150 cys. of open ledge called for.)'The revised bids were opened September 9, 1960.Granger's bid of $907,700 was the lowest.The petitioner's bid of $907,785 was the next lowest.On September 10, 1960, the petitioner wrote to the respondent committee, quoting § 44F and alleging certain minor irregularities in the Granger bid which are immaterial in the present controversy, and concluding 'this letter is not a letter of protest.We would just like to call your attention to these matters and leave it up to your decision.'On September 19, 1960, Granger was awarded the contract and on September 22, 1960, the contract was executed.The petitioner thereupon protested the award upon the grounds alleged in its petition.

The petitioner contends that because Granger made no entry in the item relative to the cost of 'ROCK EXCAVATION'(which as noted above is not prescribed in the statutory form) on the Form for General Bid, the bid is invalid.In support of the contention the petitioner cites the concluding paragraph of G.L. c. 149, § 44F, which so far as pertinent reads' 'General bids shall be for the complete work as specified * * * and the general contractor shall be selected on the basis of such general bids.Every general bid * * * which is on a form not completely filled in, or which is incomplete conditional or obscure, or which contains any addition not called for, shall be invalid; and the awarding authority shall reject every such general bid'²(emphasis added).

The question before us is whether we are now required to say that the Granger bid is invalid because the form of bid as prepared by the awarding authority was not completely filled in by Granger in the particular already noted.We have held in suits brought by taxpayers (c. 29, § 63, and c. 40,§ 53) that in matters of substance there must be strict compliance with the requirements of G.L. c. 149 dealing with the award of contracts for public works.Gifford v. Commissioner of Public Health, 328 Mass. 608, 617, 105 N.E.2d 476;East Side Const. Co., Inc. v. Town of Adams, 329 Mass. 347, 350-351, 108 N.E.2d 659.Under our decisions rejection of the Granger bid would have been justified because on its face it did not comply with the requirements of the statute.On the other hand, minor deviations from requirements will not require rejection of a bid.Loranger v. Martha's Vineyard Regional High School District School Committee, 338 Mass. 450, 456, 155 N.E.2d 791;John D. Ahern Co., Inc. v. Acton-Boxborough Regional School District, 340 Mass. 355, 358, 164 N.E.2d 313;FRED C. MCCLEAN HEATING SUPPLIES, INC. V. SCHOOL BLDG. COMMISSION OF SPRINGFIELD, 341 MASS. 322, 169 N.E.2D 741³.

We address ourselves to the case in the posture in which it comes to us, having in mind the well established criteria which we should apply in passing upon a petition for a writ of certiorari.'It does not issue on account of formal or technical errors or those which have not resulted in manifest injustice to the petitioner or which have not adversely affected the real interests of the general public.* * * The writ does not issue as matter of right but rests in sound judicial discretion.It will not be granted unless the petitioner demonstrates that substantial justice requires it even though defects of...