Grande & Son, Inc. v. School Housing Committee of North Reading
| Decision Date | 01 June 1956 |
| Citation | 334 Mass. 252,135 N.E.2d 6 |
| Parties | GRANDE AND SON, Inc. v. SCHOOL HOUSING COMMITTEE OF NORTH READING and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
G. Joseph Tauro and Joseph Golant, Lynn, for Grande & Son, Inc.
Richard B. Dellheim, Boston, for L & R Const. Co.
George Fingold, Atty. Gen. (Arnold H. Salisbury, Asst. Atty. Gen., with him), for Department of Labor & Industries.
Joseph M. Corwin and Sally A. Corwin, Boston, for Associated Subcontractors of Massachusetts, amicus curiae.
Richard M. Sullivan, Boston, for respondents.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is a petition for a writ of certiorari to quash the action of the respondent school housing committee of the town of North Reading in awarding a contract for the construction of a Junior-Senior High School to L & R Construction of Medford, Inc. (hereinafter called L & R), as general contractor. The petitioner (hereinafter called Grande) was an unsuccessful general contract bidder, which contends that, had proper action been taken, it would have been selected as the 'lowest responsible and eligible bidder for the complete work.' G.L.(Ter.Ed.) c. 149, § 44A, as appearing in St.1954, c. 645, § 1. The respondent committee filed a return. In the Superior Court a final judgment was entered dismissing the petition, and the petitioner appealed. G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4.
The commissioner of labor and industries and the members of the department of labor and industries of the Commonwealth should not have been made parties respondent. 1 The only proper respondents to a petition for a writ of certiorari are the members of the tribunal whose action is to be examined. Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8, 150 N.E. 903; Marshall v. Registrar of Motor Vehicles, 324 Mass. 468, 469, 87 N.E.2d 7; Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527, 528-529, 120 N.E.2d 766.
The sole question presented to the court below was whether G.L. (Ter.Ed.) c. 149, § 44C(A), cl. 1, as appearing in St.1954, c. 645, § 3, because of the Connor subbid, hereinafter referred to, made it mandatory upon the respondent committee to reject the bid of L & R. The case presents issues under the statutes regulating the award of contracts for public building projects by competitive bidding. The provisions of section 44C(A), cl. 1 are:
These are the facts giving rise to the dispute. The town, represented by the respondent committee, invited sealed bids to be submitted in accordance with specifications for the school building, which is a project subject to G.L. (Ter.Ed.) c. 149, §§ 44A-44C, as appearing in St.1954, c. 645, §§ 1-3, section 44D, inserted by St.1939, c. 480, and section 44E, inserted by St. 1954, c. 645, § 4. Bids of general contractors were to be submitted to the respondent committee at the town hall not later than 8 P. M. on April 22, 1955, at which time all bids were to be opened. Bids of subcontractors, including those for work on acoustical tile ceilings, were to be submitted two days earlier. The bid form for general contractors called for bids in two items, item 1 to be the work of the general contractor, and item 2 to consist of the subbids, in this instance twenty-three in number. This was required by G.L. (Ter.Ed.) c. 149, § 44C(A) cl. 2, as appearing in St.1954, c. 645, § 3.
When the bids of the general contractors were publicly opened and read, the two lowest were as follows:
Item 1 Item 2 Total
Grande $680,702.50 $873,297.50 $1,554,000
L & R 686,514.30 855,373.70 1,541,888
Grande, accordingly, was low on item 1, but L & R was low on item 2 and on the total bid.
In item 2 under the subbid for acoustical tile ceilings Grande listed Acoustical Contractors, Inc., as the bidder and $26,656 as the amount, and L & R listed Frederick A. Connor as the bidder and $18,000 as the amount. When the respondent committee opened the subbids, they discovered that the Connor subbid was based, not upon the specified acoustical tile ceilings, but upon acoustical plastic mechanically applied. L & R already knew, or should have known, of the contents of the Connor subbid, which carried the statement authorized by section 44C(B) that it was being sent to all general bidders except one, not L & R. For subbid form see section 44C(H). While not a fact essential to our decision, the observation is material that making an intelligent general bid involves knowledge of the contents of the subbids listed in it. It may be noted that there is no contractual relation between the awarding authority and a subbidder. East Side Const. Co., Inc., v. Town of Adams, 329 Mass. 347, 353, 108 N.E.2d 659; M. Ahern Co. v. John Bowen Co., Inc., 334 Mass. ----, 133 N.E.2d 484.
The bid of Acoustical Contractors, Inc., was the lowest of four proper subbids for acoustical tile ceilings, all by subbidders whose responsibility and eligibility were not questioned by the respondent committee. Likewise the responsibility and eligibility of Grande as a general contractor were not so questioned.
On May 20, 1955, the respondent committee and L & R signed a contract for construction of the school building. The contract price was $1,544,298.80; item 1 was $686,514.30; and item 2 was $857,784.50. 2 Under the work covered by four subbids appeared the word 'allowance'; acoustical tile ceilings $18,000; stage curtains and lighting $6,200; bleachers $7,242; and household arts equipment $13,992. In view of the fact that the one question raised in the court below concerned the Connor subbid, the only so-called allowance we shall consider is that relating to acoustical tile ceilings.
It is manifest that the original bid of L & R was not 'for the complete work as specified' and was not a compliance with the statute. In substance, there is no difference between a subbid changed by the general contractor, as in Gifford v. Commissioner of Public Health, 328 Mass. 608, 105 N.E.2d 476, or the failure to include a subbid, as in East Side Const. Co., Inc., v. Town of Adams, 329 Mass. 347, 108 N.E.2d 659, and the facts confronting us, where one of the subbids utterly failed to comply with the specifications. This, indeed, was the opinion of the commissioner of labor and industries, whose advice had been sought, which he gave in a letter dated May 3, 1955, to the town counsel who represented the respondent committee. There is nothing in Capuano, Inc., v. School Building Committee of Wilbraham, 330 Mass. 494, 115 N.E.2d 491, which aids the respondent committee. We are dealing with a case of 'illegal' action and not with 'conclusions as to matters of fact within their jurisdictions'. 330 Mass. at page 496, 115 N.E.2d at page 492.
In justification of the award of the contract to L & R on a new basis not in accordance with the specifications, several arguments have been advanced. One is that pursuant to c. 149, § 44C(D), as appearing in St.1954, c. 645, § 3, 3 the respondent committee determined that the difference between the two acoustical bids was $8,656 and that by adding this amount to the bid of L & R the adjusted contract amount of L & R would have been $1,550,544 and lower than Grande by $3,456. But section 44C(D) applies only 'after the selection of the general contractor' and only if 'it be decided to consider subcontractors other than the ones named by the general contractor in his bid'. A procedure is set up by which in that event the awarding authority and the selected general contractor shall jointly consider the names and amounts of all subbidders and may substitute other...
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