Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High School Bldg. Committee of City of Westfield

• Decision Date: 24 December 1962
• Citation: 345 Mass. 267,186 N.E.2d 911
• Parties: FRED C. McCLEAN HEATING SUPPLIES, INC. v. WESTFIELD TRADE HIGH SCHOOL BUILDING COMMITTEE OF the CITY OF WESTFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 911

186 N.E.2d 911

345 Mass. 267

FRED C. McCLEAN HEATING SUPPLIES, INC. v. WESTFIELD TRADE HIGH SCHOOL BUILDING COMMITTEE OF the CITY OF WESTFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 3, 1962.

Decided Dec. 24, 1962.

Joseph M. Corwin, Boston, (Sally A. Corwin, Boston, with him), for plaintiff.

Edward M. Lee, City Sol., for defendants.

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

KIRK, Justice.

The plaintiff corporation (McClean) seeks a determination under G.L. c. 231A that it be included as the subcontractor for the heating and ventilating work in the general contract for the construction of the Westfield Trade High School Building (the school) pursuant to the provisions of G.L. c. 149, §§ 44A-44L. ¹ The defendants are the Westfield Trade High School Building Committee (the committee); L. D. Phillips Construction Co. (Phillips) which was awarded the general contract for the construction of the school; and Ivy Engineering, Inc. (Ivy), which was awarded the subcontract in issue. The case is before us on the committee's appeal from a decree overruling its demurrer to the bill, and on McClean's appeals from an interlocutory decree confirming a master's report and from a final decree dismissing the bill.

1. We first consider the demurrer which was based on the grounds that the bill did not state a cause under G.L. c. 231A entitling McClean to equitable relief and that certain allegations of the bill were vague and uncertain. The bill before us, unlike the one in James Constr. Co. Inc. v. Commissioner of Pub. Health, 336 Mass. 143, 143 N.E.2d 206, alleges noncompliance with the provisions of G.L. c. 149, §§ 44A-44L, with substantive sufficiency. The question of the propriety of proceeding under G.L. c. 231A is presented. If the bill states a case within the declaratory judgment statute, it is proof against demurrer. Carlton Hotel, Inc. v. Abrams, 322 Mass. 201, 203, 76 N.E.2d 666, and cases cited. See Burnes v. Metropolitan Dist. Comm., 325 Mass. 731, 733, 92 N.E.2d 381. The averments of the bill and exhibits annexed thereto, which for purposes of demurrer must be taken as true, Kapinos v. Chicopee, 334 Mass. 196, 197, 134 N.E.2d 548, are, in brief, that McClean submitted, on the form furnished by the committee, filled out and complete in every respect, the lowest price ($136,124) for the heating and ventilating work, and was the lowest responsible and eligible subbidder; that Phillips, the lowest general bidder, listed McClean as the subcontractor; that the committee then rejected McClean's subbid and obtained Phillips's permission to substitute Ivy, whose subbid price was $6,776 higher than McClean's, all in violation of G.L. c. 149, §§ 44A-44L. The controversy thus presented is not one which calls upon us to decide questions which are committed by law to the determination of public officials whose conclusions as to matters of fact within their jurisdiction in the absence of illegal or arbitrary action cannot be controverted, Capuano, Inc. v. School Bldg. Comm. of Wilbraham, 330 Mass. 494, 496, 115 N.E.2d 491, but rather involves the question whether there has been compliance with the requirements of the statute. Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 616-617, 105 N.E.2d 476. Under the statute an awarding authority may not require the substitution of a higher available bidder for the lowest subbidder whose bid is in all formal aspects satisfactory, except for lack of competence of the lowest bidder. Rudolph v. City Manager of Cambridge, 341 Mass. 31, 35, 167 N.E.2d 151. The averments of the bill meet the requirements of the declaratory judgment statute, the procedure of which is available for the 'determinations of right, duty, status or other legal relations under * * * [a] statute * * *.' G.L. c. 231A, § 2. The availability of other remedies does not, as argued, preclude recourse to a bill for declaratory relief as a remedy. Madden v. State Tax Commn., 333 Mass. 734, 736-737, 133 N.E.2d 252. The demurrer was properly overruled.

2. The case was referred to a master who made the following pertinent findings. McClean is a competent and responsible heating and ventilating subcontractor. The committee's invitation for subbids for heating and ventilating work required that each subbidder submit a bid based on the assumption that ventilating equipment manufactured by John J. Nesbitt, Inc. (Nesbitt), would be used; and two alternate bids, alternate number one contemplating the use of Herman Nelson equipment, and alternate number two contemplating the use of Trane Company equipment. The bids on the alternates were to be indicated on the bid form by figures representing an addition to or a deduction from the base bid. The instructions to the bidders, including McClean, contained the following language, 'a bid on any contract which does not contain a separate price for each item in the bid for any such contract may be rejected as informal.' All subbids for the work were filed by noon on April 20, 1961, and 'duly opened by the committee.' McClean's base bid was the lowest base bid. In the spaces provided for the alternate bids the words 'no bid' was inserted by McClean. McClean was listed by the committee as the lowest subbidder in the information distributed to the general bidders. Phillips, the lowest general bidder, listed McClean as the subcontractor for the heating and ventilating work. Before the award of the general contract, however, the city solicitor, in response to an inquiry by the committee as to the validity of McClean's bid, advised that McClean's bid was illegal and should be rejected because it did not make a specific bid for the alternates. On May 1, 1961, the committee adopted the city solicitor's opinion. The substitution of Ivy for McClean followed. The award was made on the base bid. No award was made on the alternate bids.

3. The view which we take of the case makes it unnecessary to consider McClean's objections ² to the master's report.

4. The interlocutory decree confirming the master's report established the facts found by the master as the facts of the case. Foot v. Bauman, 333 Mass. 214, 219, 129 N.E.2d 916, 55 A.L.R.2d 1139. It thereupon became the duty of the judge, as it is now our duty on appeal from the final decree, to see that the final decree is such as the law requires upon the facts found by the master. Foot v. Bauman, 333 Mass. 214, 219, 129 N.E.2d 916. New England Overall Co. Inc. v. Woltman, 343 Mass. 69, 80-81, 176 N.E.2d 193. In reviewing a case of the type before us we are moved in the public interest, despite the peripheral arguments advanced by the parties, to see that an awarding authority has complied with the statutory requirements which are the source of its authority. Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 616-617, 105 N.E.2d 476. Accordingly, we frame the substantive issue of law presented for determination on the facts found by the master: May McClean, a competent, responsible and eligible subcontractor acceptable to the general contractor, having submitted the lowest base subbid, be rejected by the committee for consideration as the base bid subcontractor eleven days after the subbids were opened on the ground that its subbid was incomplete for want of alternate bids? For the answer we look to the language of the statute and to our construction of it in the recent case of Rudolph v. City Manager of Cambridge, 341 Mass. 31, 35-38, 167 N.E.2d 151, where the policy of the statute was discussed and where the distinction was drawn between the awarding authority's right to reject for incompetence and its right to reject for formal deficiencies. We rely upon the language and reasoning of the Rudolph case in resolving the issue beofore us. Section 44H of G.L. c. 149 requires that subbids be filed at least four days before the date for opening general bids, and forthwith opened. It further requires that the awarding authority within two days thereafter 'shall reject every sub-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.' The awarding authority in rejecting bids under § 44H in the two day period allowed will necessarily be concerned, usually and primarily, with formal deficiencies. Formal deficiencies are usually determinable by visual inspection.

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