John D. Ahern Co. v. Acton-Boxborough Regional School Dist.

• Decision Date: 05 February 1960
• Docket Number: ACTON-BOXBOROUGH
• Citation: John D. Ahern Co. v. Acton-Boxborough Regional School Dist., 164 N.E.2d 313, 340 Mass. 355 (Mass. 1960)
• Parties: JOHN D. AHERN CO., Inc. v.REGIONAL SCHOOL DISTRICT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 313

164 N.E.2d 313

340 Mass. 355

JOHN D. AHERN CO., Inc. v. ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 10, 1959.

Decided Feb. 5, 1960.

Jerome A. McCusker, Waltham, for plaintiff.

Lane McGovern, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

The plaintiff (Ahern) seeks to recover a $1,000 bid deposit furnished with a sub-bid made in 1955 in connection with the construction of a school for the defendant (the school district). The case was heard in the Superior Court on a statement of agreed facts. The trial judge made a general finding for the school district, in effect an order for judgment. See Thurlow v. Crossman, 336 Mass. 248, 250, 143 N.E.2d 812. Ahern has appealed.

In August, 1955, the school district advertised for bids, specifying that sub-bids would be taken on certain parts of the work including (a) painting and (b) heating and ventilating. Each sub-bidder on painting was required to furnish $1,000 bid security. See G.L. c. 149, § 44B (as amended through St.1954, c. 645, § 2). ¹ Ahern mailed a sub-bid of $11,413 for the painting to the school district with a certified check for $1,000, and also sent its sub-bid to J. F. Rand & Son (Rand), a general contractor, and to two other firms which were bidding on the project. It was agreed that the 'testimony [emphasis supplied] of * * * [the] president of * * * [Ahern] is that * * * [the] subbid submitted to * * * Rand * * * was * * * $11,415 * * * by * * * mistake * * * $2 higher than the figure * * * submitted to the other general contractors and * * * than the figure in the record copy of the * * * subbid filed with the' school district.

General bids were seasonably received on or prior to September 14, 1955, from six general contractors. Rand was the low bidder, at $1,170,383. The next lowest bid was $1,223,000. Each of these bidders had included Ahern as subcontractor for painting, Rand at a figure of $11,415 and two others at a figure of $11,413.

On September 15, 1955, the architect received a letter from Ahern stating that it 'would like to withdraw * * * [its] bid' because it had discovered an error in its quoted figure amounting to 'many thousands of dollars.' On October 11, 1955, the school district accepted Ahern's painting sub-bid and executed a general contract with Rand, which included an allowance of $122,000 for heating and ventilating. The school district did not accept any sub-bid for the heating and ventilating. It had received too late a sub-bid of $121,090 for this work from J. J. Hurley & Co., Inc. (Hurley), and decided 'to rebid the heating and ventilating work at a later date' despite the fact that the sub-bidders who seasonably filed sub-bids for this work 'were responsible, competent, and eligible.' All 'six general contractors bidding * * * [had] selected * * * Hurley * * * as subcontractor for heating and ventilating.'

Ahern, when notified that its painting sub-bid had been accepted, refused to execute a subcontract with Rand. The work was then awarded to the next lowest painting sub-bidder at an additional cost to the school district of $1,337. On November 7, 1955, Ahern requested that its bid deposit be returned. The school district refused to do this because of Ahern's failure to execute a subcontract.

On November 29, 1955, new heating and ventilating sub-bids were opened and the school district, by a change order approved March 20, 1956, requested Rand to enter into subcontract with the low sub-bidder. Classes opened in the school in September, 1957. After this action was entered on December 2, 1957, Ahern for the first time stated as a ground for the return of its bid deposit 'alleged deficiencies with respect to the nonacceptance of heating and ventilating subbids in October, 1955.'

1. Ahern contends that there were two irregularities in its sub-bid which rendered its rejection mandatory. The first is that Ahern left blank in its sub-bid the space available for reference to certain 'addenda' to the plans and specifications mentioned in the prime contract between Rand and the school district. The agreed facts to not show (a) what these addenda were, (b) when they came into existence, or (c) that they existed when the sub-bids were filed. The addenda are not attached to the copy of the prime contract incorporated by reference in that statement. Nothing in the record shows that these addenda had anything to do with the painting subcontract. The second irregularity asserted is the alleged discrepancy of $2 between the sub-bid filed by Ahern with Rand and that filed by Ahern wtih the school district. There is no agreement (as opposed to a statement of testimony) by the parties either upon the existence of this discrepancy ² or upon facts showing that the trivial discrepancy had any significance. Nothing in this record leads us to infer that either alleged defect had any importance, or existed when the sub-bids were made. Even if such formal discrepancies did exist when the sub-bids were filed, they are too trivial to provide any basis for relief. See Loranger v. Martha's Vineyard Regional High School Dist. School Comm., 338 Mass. 450, 456, 155 N.E.2d 791.

2. Ahern argues that, in rejecting all sub-bids for heating...