Quincy Ornamental Iron Works, Inc. v. Findlen

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; SPIEGEL
• Citation: Quincy Ornamental Iron Works, Inc. v. Findlen, 353 Mass. 85, 228 N.E.2d 453 (Mass. 1967)
• Decision Date: 30 June 1967
• Parties: QUINCY ORNAMENTAL IRON WORKS, INC. v. Fred J. FINDLEN et al. 1

Page 453

228 N.E.2d 453

353 Mass. 85

QUINCY ORNAMENTAL IRON WORKS, INC. v. Fred J. FINDLEN et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1967.

Decided June 30, 1967.

Frederick W. Roche, Boston (Robert J. Sherer, Boston with him) for defendants.

Joseph M. Corwin, Boston (Sally A. Corwin, Boston, with him) for plaintiff.

Before WILKINS, C. J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Judge.

This is a bill for declaratory relief seeking to have declared invalid the awarding of a certain subcontract by the Medford Housing Authority (Authority) to Fred J. Findlen & Sons (Findlen), which was also awarded the general contract. The judge made 'Findings, Rulings and Order for Decree.' A final decree was entered declaring, in substance, that Findlen 'does not have the legal right to perform the subtrade' for which the subcontract was awarded. Findlen was also enjoined from proceeding further with work on the subcontract and from receiving further payments for such work, and the Authority was enjoined from approving the release of any funds to Findlen in connection with the subcontract until Findlen, as general contractor, entered into a new subcontract after compliance by the Authority with G.L. c. 149, §§ 44A-44L. The defendants appealed from the final decree. ² The evidence is reported.

From the findings of the judge it appears that the 'Authority invited sealed bids and sub-bids, including sub-bids for the fabrication of structural steel and miscellaneous metal work, for the construction of a housing project in Medford for the elderly * * *, all in accordance with G.L. c. 149, §§ 44A-L.' The plaintiff 'seasonably filed a proper sub-bid for the metal work and its price was the lowest. There were seven other sub-bidders for the structural steel and miscellaneous metal work. Findlen, who was the selected low general bidder, filed a sub-bid for the metal work and carried * * * (itself) as * * * (its) own metal work subcontractor. The Authority awarded the * * * contract to Findlen as the metal work subcontractor. * * * At the time that the Authority awarded Findlen the general contract and the metal work subcontract, * * * (the plaintiff) protested to the Authority that the Findlen sub-bid for metal work was invalid because Findlen did not customarily perform the metal work with its own employees.'

1. The judge ruled that although '(t)here is no compulsion for the low general bidder to include a low sub-bid in its general bid nor can a low sub-bidder compel its inclusion in a general bid. East Side Construction Co. v. Adams, 329 Mass. 347, 108 N.E.2d 659. * * * (i)t is apparent * * * that in the event that the challenged sub-bid of Findlen is declared invalid * * * (the plaintiff) could be considered as a subbidder under the substitution requirements found in' G.L. c. 149, §§ 44H and 44I(3). 'Since * * * (G.L. c. 231A, § 1) clearly gives * * * (the) Court jurisdiction to make binding declarations of right, duty, status and other legal relationships in any case in which an actual controversy has arisen, as long as * * * (the plaintiff) has the potential of being chosen as a sub-bidder, it has legal standing to challenge the acceptance by the Authority of the sub-bid which it covets. A subbidder in the position of * * * (the plaintiff) has been deprived of the legal right to have his sub-bid considered and the opportunity to be selected as a sub-bidder. * * * I therefore find as a matter of law that * * * (the plaintiff) has standing to bring the subject action.'

It is well established that a bidder on a contract governed by G.L. c. 149, §§ 44A-44L has standing to challenge the compliance of the awarding authority with the requirements of those sections. See Grande & Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252, 135 N.E.2d 6; Chick's Constr. Co. v. Wachusett Regional High Sch. Dist. School Comm., 343 Mass. 38, 175 N.E.2d 502; Builders Realty Corp. of Mass. v. Newton, 348 Mass. 64, 201 N.E.2d 825; J. & J. Elec. Co. v. Government Center Commn., 349 Mass. 172, 206 N.E.2d 925; Burgess & Blacher Co. v. Beverly Housing Authy., 351 Mass. 88, 217 N.E.2d 773. Findlen appears to contend that the plaintiffs in the above cases had standing because those cases involved claims that 'but for the illegal action of the awarding authority * * * (the plaintiffs) would have received the contract for which * * * (they) bid.' We do not agree with this interpretation. The plaintiffs had standing in those cases because they had a right to be considered in the event that the subbidder named in the general contract was rejected. There was no error in the judge ruling that the plaintiff 'has standing to bring the subject * * * (suit).'

2. The judge found 'There is no evidence that the Authority ever considered, investigated, passed upon or had any knowledge of whether Findlen customarily performed with its own employees the miscellaneous metal work which was included in its sub-bid.' General Laws c. 149, § 44J, permits a general bidder to submit a sub-bid if he 'customarily performs with his own employees' the subtrade, but states that '(n)o such sub-bid by a general bidder shall be considered, however, unless the general bidder can show, to the satisfaction of the awarding authority, that he does customarily perform such sub-trade, and is qualified to do the character of work required by the applicable section of the specifications.'

The finding of the judge shows that the Authority did not comply with the requirements of this section, and hence it should not have considered the sub-bid of the general bidder. Consequently, Findlen could not be the subcontractor for this subtrade. Cf. Burgess & Blacher Co. v. Beverly Housing Authy., 351 Mass. 88, 89-90, 217 N.E.2d 773.

The judge also found, on the basis of testimony to which the defendants consistently objected, that '(o)n all the facts * * * Findlen did not customarily perform with its own employees the sub-trade...