Loranger v. Martha's Vineyard Regional High School Dist. School Committee

• Decision Date: 23 January 1959
• Citation: 338 Mass. 450,155 N.E.2d 791
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Albert R. LORANGER and others v. MARTHA'S VINEYARD REGIONAL HIGH SCHOOL DISTRICT SCHOOL COMMITTEE.

Page 791

155 N.E.2d 791

338 Mass. 450

Albert R. LORANGER and others v. MARTHA'S VINEYARD REGIONAL HIGH SCHOOL DISTRICT SCHOOL COMMITTEE.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 5, 1958.

Decided Jan. 23, 1959.

Charles R. Desmarais, Dorchester (Gerald P. Walsh, New Bedford, with him), for petitioners.

Arthur W. Davis, Edgartown, for respondents.

James P. McGuire, Fall River, and Joseph M. Corwin, Boston, by leave of court, submitted a brief as amici curiae.

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

WHITTEMORE, Justice.

This petition for a writ of certiorari seeks to quash the action of the respondents as the regional district school committee (the committee) of the Martha's Vineyard Regional High School District (the district) in awarding to Ayers-Hagan-Booth, Inc. (Ayers), a general contract for the construction of a regional public high school building at Oak Bluffs. The petitioners (Loranger) and Ayers were the two low bidders for the general contract. The case was heard in the Superior Court on an auditor's report. The judge ordered the petition dismissed and the petitioners have appealed. G.L. c. 213, § 1D, as amended by St.1957, c. 155.

1. The motion of the respondents to dismiss the appeal is denied. The respondents filed their counter designation of the record on appeal on April 4, 1958, and on that day, and again on April 11, the petitioners filed an order for preparation of the necessary papers. The judge's approval of the counter designation was docketed on May 2, 1958. There was substantive compliance with G.L. c. 231, § 135, which requires that the party having the obligation 'give' the order to the clerk 'within ten days after the case becomes ripe for final preparation and printing of the record'. The order on file spoke operatively at the time specified in the statute. It is inconsequential that it was filed prior to the ten-day period. Reardon v. Cummings, 197 Mass. 128, 129, 83 N.E. 361; Trustees of Thayer Academy v. Assessors of Braintree, 232 Mass. 402, 406, 122 N.E. 410. Cases cited in McDermott v. Jamula, 338 Mass. ----, 154 N.E.2d 595.

2. The auditor incorporated in his report the return of the respondents and made findings of fact which are in large part statements of relevant facts disclosed in the return. The issue is to be decided upon the face of the return except that the respondents may be permitted to show facts outside the record which might lead to refusal of the writ on discretionary grounds, and the petitioners may introduce evidence controverting such evidence, and may, with evidence, attack the jurisdiction of the inferior tribunal. Morrissey v. State Ballot Law Comm., 312 Mass. 121, 124-125, 43 N.E.2d 385; Boston v. White Fuel Corp., 294 Mass. 258, 261, 1 N.E.2d 186, and cases cited. Haven v. County Com'rs of Essex, 155 Mass. 467, 469, 29 N.E. 1083; Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 171, 150 N.E. 892; Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 481, 160 N.E. 427; Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 619, 105 N.E.2d 476. The few findings which may not be statements of what is shown by the return are not important to the case as we view it. In any event they must be disregarded except as relevant to the discretionary denial of the writ.

3. No illegality is shown to have occurred in accpeting and rejecting certain alternative proposals of the specifications and determining that Ayers was the low bidder.

Ayers' bid of $1,063,031 was next to the lowest and Loranger's bid, $1,056,811, was the lowest, when the bids were opened. The general specifications, however, as contemplated by G.L. c. 149, §§ 44F, 44G, contained sixteen alternate items, and required the bidders to state in each alternate the amount which would be added to or deducted from their bids in the event that the awarding authority (the committee) should wish to adopt such alternate.

The committee voted on all the alternate items on November 22, 1957, and on that day voted to reject alternate No. 15. The effect of this, with the other acceptances and rejections of alternates, was to make the Ayers bid $1,030,869, and the Loranger bid $1,031,140. The committee thereupon voted to 'tentatively select' Ayers as 'the apparent low bidder.' On December 5, the committee voted to sign a contract with Ayers for $1,022,001, their counsel having reported that all the contract documents were in order. The contract lists alternate No. 15 among the alternates which were accepted. This shows that the committee had reversed their decision of November 22 in respect of this item. The amounts which had been specified to be deducted if alternate No. 15 was accepted were Loranger $8,648 and Ayers $8,868. Thus Loranger's bid, adjusted to the decision evidenced by the vote and contract of December 5, became $1,022,492 ($1,031,140 - $8,648) while Ayers' adjusted bid became the contract figure of $1,022,001 ($1,030,869 - $8,868) and Ayers' bid remained the lowest by a larger spread. Nothing in the statute or bidding documents puts the decision of November 22 as to alternate items beyond change, and in any event Loranger cannot complain, for their bid was the higher whether or not alternate No. 15 was accepted.

On November 22, the architect informed the committee that although the bids were all above the original budget estimates there were a number of alternatives available. The minutes state, 'The careful selection of alternates * * * was considered with more favor by the members than the prospect of eliminating the music area or two classrooms.' The minutes of a meeting held on November 25 state that '[t]he architects were questioned closely on the matter of the committee's right to make changes in the building after the contract has been signed. Article 15. Changes in the work contained in the general conditions * * * was read and discussed by the committee.' The auditor found, and the return supports the finding, that '[s]ome of the work called for in the alternates and deleted from the general contract was to be performed in the future, but not under the general contract.' There is no basis in these facts for a finding of an intent to evade the provisions of G.L. c. 149, §§ 44A-44L, or that any evasion or illegality would result.

4. The petitioners may not demand the issuance of the writ because of the action taken in respect of subbids.

(a) Section 44H requires that the subbids 'shall be publicly opened and read by the awarding authority'. The auditor found that the subbids were received and opened by the architecutral firm of Perley F. Gilbert Associates, Inc. (Gilbert), on November 8, 1957, at its office located in Lowell, at which time a Mr. Hall, a member of the committee, was present. There is no basis for inferring that the requirement of § 44H was not met. The contract documents show that Gilbert was the architect for the district. It was appropriate that the architect perform this ministerial duty for its principal. An inference is warranted that the action taken on November 8 was done in public. There is no suggestion to the contrary.

(b) It does not appear that the petitioners have an interest to contest the award of the subcontract for heating and ventilating to Brandt-Jordan Corporation (Joran), the low bidder.

The list of subbids submitted by the architect for the district to the prospective general bidders (G.L. c. 149, § 44H) noted a protest by a competitive subbidder against the Jordan bid. This bid was, however, used by both Loranger and Ayers. The return shows that the architect for the committee investigated the matters complained of in the protest, and consulted about them with the department of labor and industries after the signing of the contract with Ayers. That there was reasonable basis in the resulting reports made to the committee, as shown in the return, for concluding that the Jordan bid was valid, as we think there was, does not bar a determination that the bid based on all facts shown in the return was invalid. But the determination of the invalidity of the Jordan bid would not invalidate the general bid. After our decision in Grande and Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252, 135 N.E.2d 6, the General Court amended the entire statutory bidding procedure. Section 44H of c. 149, as appearing in St.1956, c. 679, § 1, now provides that 'If a general bidder not named in said list as expressly precluded from doing so names as a sub-bidder for a sub-trade in Item 2 of the general bid form a person included for such sub-trade in said list at the sub-bid price stated in said list, the general bid of such general bidder shall not be invalid or rejected because of the invalidity of such sub-bid or because of error in said list; but there shall be substitution of sub-bidders and adjustment of contract price as if paragraph (3) of section forty-four I were applicable.' In the circumstances we hold that Loranger has no interest to litigate the validity of the Jordan bid. ¹ But it may be noted, nevertheless, that the return does not show illegality in the use of this subbid. The bid itself appears to be complete and in order. The competitor protested that the payee in the bid security check was incorrectly described. The instructions to bidders specified as payee 'Martha's Vineyard Regional School District.' The check was payable to 'Martha's Vineyard Regional High School Building Committee.' The correct name was 'Martha's Vineyard Regional High School District.' The committee was not obliged to reject the bid because of the inconsequential variance. The protest that Jordan merely put a dash after those alternate items in the subbid forms which did not concern the heating and ventilating contractors was frivolous. There was plainly no basis for the claim that the bid on alternate No. 16 was obscure or nonconforming. ...