Pacella v. Metropolitan Dist. Commission

• Citation: 159 N.E.2d 75,339 Mass. 338
• Parties: John PACELLA et al. v. METROPOLITAN DISTRICT COMMISSION and Treasurer and Receiver General.
• Decision Date: 04 June 1959
• Court: United States State Supreme Judicial Court of Massachusetts

Page 75

159 N.E.2d 75

339 Mass. 338

John PACELLA et al. v. METROPOLITAN DISTRICT COMMISSION and Treasurer and Receiver General.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1959.

Decided June 4, 1959.

Lewis H. Weinstein, Boston (Lawrence A. Sullivan, Boston, with him), for petitioners.

Joseph H. Elcock, Jr., Asst. Atty. Gen. (Gerald Cabitt, Boston, with him), for respondents.

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

CUTTER, Justice.

This is a petition under G.L. c. 29, § 63 (inserted by St.1937, c. 157), by more than twenty-four taxable inhabitants to enjoin the metropolitan district commission (the commission) from awarding the contract hereinafter described and seeking further relief. The case was referred to a master whose report was confirmed. A motion by the petitioners to amend their petition to conform to the proof was denied and a final decree was entered dismissing the petition. The petitioners have appealed from the denial of their motion to amend and from the final decree. Relevant facts are stated as found by the master.

The commission invited sealed proposals for the construction of certain water distribution lines. The opening of the proposals, set for October 24, 1957, was enjoined by an interlocutory decree in this proceeding. As part of the work, 'the contractor was to * * * lay * * * 10,000 lineal feet of 60-inch pipe, prestressed; 100 lineal feet of 54-inch pipe, prestressed.' The contract is subject to G.L. c. 29, § 8A.

The contractor will purchase some $600,000 worth of reinforced concrete water pipe, steel cylinder type, a material 'in common use and sold and delivered in commerce' in Massachusetts. The specifications for such pipe '(* * * having internal diameters of 60 inches, 54 inches, 48 inches and 36 inches) require that all linear sections * * * other than elbows, bends and joints * * * comply with' certain tentative standard specifications of the American Water Works Association. These specifications 'call for a particular type of * * * pipe, * * * hereinafter referred to as 'prestressed pipe' * * * which may be manufactured only under a patent held by' Lock Joint Pipe Company (hereinafter called Lock Joint). No 'company other than Lock Joint had ever sold or offered * * * prestressed pipe in Massachusetts to the' commission. Lock Joint 'has the exclusive right to preclude others from * * * manufacture and sale of prestressed pipe.'

There 'is in common use an alternative to prestressed pipe, another type of reinforced concrete * * * pipe, steel cylinder type' (hereinafter called non-prestressed pipe). This 'pipe is also manufactured * * * by Lock Joint,' whose patent on this type expired several years ago. Prior to the patent's expiration this type of pipe could be made and sold only under the patent. Recently Concrete Pipe Corporation has entered the field 'of manufacturing and selling non-prestressed pipe * * * in competition with Lock Joint.'

'Prestressed and non-prestressed pipe are designed * * * and used to perform the same function--the carrying of water under heavy pressure * * * are basically similar in design, in materials used and in method of manufacture and are identical in appearance. * * * Both * * * are constructed of a steel core reinforced by steel wire or rods with a layer of concrete inside the core and in the case of non-prestressed with a layer outside the * * * rods.' ¹

The master found, after hearing expert testimony, that non-prestressed pipe 'is functionally equal to * * * prestressed * * * with respect to (a) the design or operating pressure * * * (b) ultimate strength or bursting pressure * * * (c) resistance to water hammer * * * and (d) resistance to top loads (i. e., external pressure' from above) and 'substantially equal with respect to (1) resistance to corrosion, and (2) durability.' ² Weights of the two types made to Lock Joint specifications are the same. The master concluded that Concrete Pipe Corporation (a) at its plant in Dedham makes 'non-prestressed pipe which is functionally equal to prestressed pipe in every respect and * * * of the same wall thickness and approximately the same weight' and (b) can manufacture and deliver such non-prestressed pipe 'meeting all the requirements for this project' more quickly and expeditiously than could Lock Joint. Prestressed pipe is not being made in Massachusetts and the 'specifications * * * preclude the * * * bidder from giving preference * * * to * * * materials manufactured in Massachusetts.'

The specifications issued by the commission, although calling for prestressed pipe for all linear sections, called for non-prestressed pipe at elbows, bends and joints where water pressure 'is substantially higher * * * than * * * in linear sections.' Concrete pallets, however, are placed under the elbows, bends, and joints to protect them.

Until this invitation for proposals, in October, 1957, shortly after Concrete Pipe Corporation had entered the non-prestressed pipe business, the commission 'had always specified the size of the pipe * * * and the functional characteristics * * * and had allowed bidders to * * * use either prestressed or non-prestressed pipe * * *. This method * * * did not introduce competition between * * * suppliers, but did give bidders a chance to obtain * * * whichever of the two types of pipe Lock Joint, at that time, was selling most cheaply.' Each type of pipe has been supplied on various occasions, but in general 'prestressed pipe * * * [has] been supplied only in projects requiring pipe of smaller internal diameter.' The master found that the commission and its engineers have consistently 'acted upon the opinion that the two types are functionally equal.'

1. The petitioners contend that the commission has violated, or proposes to violate, (a) the letter and the spirit of G.L. c. 29, § 8A, (b) the regulations of the commission on administration and finance requiring contractors to give preferences, other things being equal, to goods made in Massachusetts, and (c) common law and statutory (see G.L. c. 93, § 2) provisions against monopolies. General Laws c. 29, § 8A (as amended through St.1951, c. 401), is set out in the margin. ³

Statutes of this general character are designed 'to establish genuine and open competition after due public advertisement in the letting of contracts * * * to prevent favoritism in awarding such contracts and to secure honest methods of letting contracts in the public interests.' See Morse v. Boston, 253 Mass. 247, 252, 148 N.E. 813, 815; Burt v. Municipal Council of Taunton, 272 Mass. 130, 133, 172 N.E. 230. See also Grande and Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252, 258, 135 N.E.2d 6. In the Morse case, 253 Mass. 247, 252, 148 N.E. 813, 815, it was said that such 'statutes must be interpreted, if reasonably possible, so as to effectuate the purpose of the framers' and '[e]very presumption is to be indulged that the General Court intended to put in force * * * legislation effectual to remedy the evil at which it appears to be aimed.' Nevertheless, it was there also pointed out that '[s]tatutes must be interpreted as enacted' and '[o]missions cannot be supplied by the judicial department.'

Of course, in administering statutory requirements for public advertisement for bids, 'there must be strict compliance with the statutory requirements.' Poorvu Construction Co., Inc. v. Nelson Elec. Co., Inc., 335 Mass. 545, 552, 140 N.E.2d 891, 895, and cases cited. The petitioners, however, do not suggest that there has been failure to comply with the formal procedural requirements of § 8A. They contend that 'public advertisement of specifications which * * * are so unreasonably restrictive in scope as to preclude true competition do not comply with the statutory mandate' and that the situation is one 'where the form of an invitation for competing bids was complied with * * * yet the substance [was] subverted by the deliberate adoption of specifications which required the use of a single manufacturer's product, and foreclosed bidders from offering the functionally equal product of others.'

Nothing in the language of § 8A in explicit terms requires the type of competition for which the petitioners here contend. The section is aimed at obtaining free opportunity to bid for all who wish to bid and enabling them to obtain knowledge of the specifications and to make proposals. It contains, however, no express standards governing specifications whatsoever (cf. G.L. c. 7 §§ 30A-30F, inserted by St.1953, c. 612, § 5, not here applicable) except that specifications shall not 'be split or divided for * * * evading the * * * section.' Indeed, the section, unless by implication, does not require award to the lowest responsible bidder as in G.L. c. 149, § 44A, as amended through St.1957, c. 590, § 1, in the case of contracts relating to 'any public building.'

Although St.1939, c. 427, which first inserted the section, was entitled 'An Act relative to competitive bidding on state contracts,' the legislative history of the 1939 statute shows that a provision in the original bill, 1939 House Bill No. 1427, that no contract should be awarded 'without having previously obtained free and open competition therefor' does not appear in the section as enacted. These words disappeared when 1939 House Bill No. 2468 was substituted on July 11, 1939. See 1939 House Journal, 1726. Although the significance of this amendment is not clear, it does tend against the view of § 8A for which the petitioners contend. ⁴

The petitioners suggest that courts in other jurisdictions have construed statutes, requiring public advertisement for proposals for government work, as implying also a requirement of specifications which actually invite competition not only (a) among persons bidding against each other for the completed work, but also (b) among suppliers of component materials or equipment. The...