Gifford v. Commissioner of Public Health
| Decision Date | 08 April 1952 |
| Citation | 105 N.E.2d 476,328 Mass. 608 |
| Parties | GIFFORD et al. v. COMMISSIONER OF PUBLIC HEALTH et al. J. SLOTNIK CO. v. MASSACHUSETTS PUBLIC BLDG. COMMISSION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L. H. Weinstein, Boston, J. Hunt, H. L. Berman and J. Preston, Jr., all of Boston, for the petitioners Gifford et al.
E. C. Park, Boston, for the petitioners J. Slotnick Co.
C. H. Walters, Asst. Atty. Gen. for the respondents Commissioner of public health et al.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
These two cases, which were tried together, present the same principal question: Was John Bowen Co., Inc., the 'lowest responsible and eligible' general bidder on a contract for the construction of a chronic diseases hospital in Boston, a project subject to G.L. (Ter.Ed.) c. 149, §§ 44A-44D, inserted by St.1939, c. 480, as amended? 1 The contract was awarded by the department of public health (hereinafter called the department) with the approval of the Massachusetts public building commission 2 (hereinafter called the commission) to John Bowen Co., Inc. (hereinafter called Bowen). It was agreed in the court below that a finding might be made that J. Slotnik Company (hereinafter called Slotnik) was a 'responsible and eligible' bidder within the meaning of section 44A, as amended; and that at a hearing held October 15, 1951, before the commission when Slotnik offered to introduce such evidence, the members of the commission stated that it would be unnecessary, as they proposed to limit themselves to the sole issue whether Slotnik or Bowen was the lowest bidder, and that they had never made a formal determination that Slotnik was not a 'responsible and eligible' bidder. On this record it is too late to make an argument before us in either case that Slotnik was determined to be not 'responsible and eligible' even if its bid was 'lowest.'
The First Case.
Not less than twenty-four (to wit, twenty-eight) taxable inhabitants of the Commonwealth, not more than six of whom are from any one county, bring this petition under G.L. (Ter.Ed.) c. 29, § 63, inserted by St.1937, c. 157. The respondents are the commissioner of public health, the commission, the Treasurer and Receiver General, and Bowen.
In August, 1951, the department publicly invited sealed proposals for the construction of the hospital in accordance with certain plans and specifications. In the proposal from the department designated twenty-seven subcontractors to be included by each general contractor in Item 2 of his bid. Pursuant to, and in the language of, G.L. (Ter.Ed.) c. 149, §§ 44C (A, B), inserted by St.1939, c. 480, the notice to contractors provided: . The notice to contractors also contained the following: 'No amount shall be included by a bidder in either Item 1 or Item 2 of the proposal form for the work to be performed under an item or items listed in Item 2 on which no recorded sub-bids have been received, and the bids of general contractors will be compared only on such basis.'
Other provisions of section 44C (B), as amended, are: Section 44C(C) states. 'The names of all sub-bidders who filed their bids with the awarding authority shall be mailed on date of receipt to the general contractors bidding on the project and no sub-bidder not included on such list shall be used by the general contractor in his bid.'
As later extended, the filing time for subbids closed on October 2, 1951, and for bids on October 5, 1951. Many subbids were filed for twenty-six 3 of the twenty-seven subcontract operations, and the general bidders were notified of the list of names of those subbidders. There were four general bids. These were publicly opened and read on October 5, 1951. The two lowest bids may be summarized as follows:
It thus appeared that on Item 1, which was the work to be done by the general contractor, Slotnik's bid was lower by $21,784. But on Item 2, which was the work to be done by subcontractors, Bowen's bid was lower by $21,942.75, notwithstanding that Slotnik and Bowen had named the same twenty-six subbidders and had received the same subbids from them. On October 22, 1951, Bowen, whose total bid seemed to be lower by $158.75, was recommended by the department as the 'lowest responsible and eligible bidder', and on October 24 the commission voted to approve the award of the contract to Bowen.
In the meantime on October 11, 1951, the recorded subbids, which had been filed with the department, were opened and read. It then could be seen that the recorded subbids of twenty-one subcontractors named by both Slotnik and Bowen were identical with the estimates submitted by Slotnik and Bowen, and that, apart from two minor variations, the discrepancy as to Item 2 was the result of three differences: (1) The painting subbid of Johnson-Foster Company, Inc., as filed was $135,600. Slotnik used this amount, but from it Bowen deducted $20,000. (2) and (3) Albre Marble & Tile Company, Inc., filed subbids for marble and tile respectively of $42,400 and $243,000 with a notation in each case, 'If a performance bond will be required, add 3/4 of 1% of the above proposal to the contract sum.' Slotnik added the amounts for the performance bonds, but Bowen did not. If the correct amount of the painting subbid was $135,600 and not $115,600, or if the correct amount of the subbids for either tile or marble required the addition of 3/4 of 1%, Slotnik's bid was low for the entire contract as well as for Item 1.
The notice to contractors signed by the commissioner and the special form for general bidders (prepared by the department and signed by Slotnik and Bowen) provided that a subbidder may be required by the general contractor or the awarding authority to furnish a performance bond. The same special form also contained the provision:
'The undersigned agrees that the list of subbidders represent bona fide bids based on the plans and specifications, made in good faith to the bidder, and are hereby submitted and that, if the undersigned is awarded the contract, they will be used for the work indicated, at the amounts stated, if satisfactory to the awarding authority as provided in the general conditions.'
The foregoing facts are found by us from the statements of counsel at the hearing in the court below and from documents in evidence. The judge filed a paper containing findings, rulings, and an order for decree. The petitioners appealed from a final decree dismissing the petition. The evidence is reported.
We here summarize certain evidence relating to the difference of $20,000 in the use made by Slotnik and that made by Bowen of the Johnson-Foster painting subbid. The original specifications called for the subcontractor to furnish and to hang fabric wall covering to be selected by the architect from samples submitted. By an addendum dated September 14, 1951, the requirement of the architect's approval was omitted. Instead a provision was substituted requiring the 'contractor' to include, as an 'allowance,' in his proposal the sum of $20,000 for fabric wall covering to be purchased as directed by the architect, any difference between the allowance and actual cost to be added to or deducted from the contract price, the Commonwealth reserving the right to deduct the entire allowance and itself to deliver the fabric wall covering, the 'contractor' thereafter to 'be responsible for all fabric wall covering until completion of the contract.' On October 5, 1951, after the general contractors' bids were opened, Johnson-Foster Company sent Bowen a letter bearing date of October 2, 1951, which read: This information was given only to Bowen and was not filed with the department.
The trial judge ruled that the requirements of c. 149, §§ 44A-44D, as amended, were complied with by the commission and by Bowen. He made so called findings that there were no 'irregularities' by Bowen in its treatment of the subcontracts for marble, tile, and painting; that with respect to the marble and tile bids Bowen 'had the right to disregard the suggestion that an additional three quarters of one per cent be added to the bids if performance bonds were required'; and that with respect to the bid for painting 'the estimated cost of $20,000 for fabron wall covering was not omitted by the Bowen Co., but was carried in Item 1...
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