Sciaba Const. Corp. v. City of Boston

• Decision Date: 28 September 1993
• Docket Number: No. 92-P-328,92-P-328
• Citation: Sciaba Const. Corp. v. City of Boston, 617 N.E.2d 1023, 35 Mass.App.Ct. 181 (Mass. App. 1993)
• Parties: SCIABA CONSTRUCTION CORPORATION v. CITY OF BOSTON & another 1 ; Department of Labor and Industries, Intervener. 2
• Court: Appeals Court of Massachusetts

Page 1023

617 N.E.2d 1023

35 Mass.App.Ct. 181

SCIABA CONSTRUCTION CORPORATION v. CITY OF BOSTON & another ¹; Department of Labor and Industries, Intervener. ²

No. 92-P-328.

Appeals Court of Massachusetts Suffolk.

Argued April 14, 1993.

Decided August 23, 1993.

Further Appellate Review Denied Sept. 28, 1993.

John J. Spignesi, Woburn, for plaintiff.

William J. Pidgeon, Jr., Assistant Corporation Counsel, for the city of Boston.

Charles E. Schaub, Jr., & William R. Moore, Boston, for Modern Continental Construction Co., Inc., submitted a brief.

L. Scott Harshbarger, Attorney General, Peter Waltonen & Sheila L. Morton, Sp. Asst. Attys. Gen., for the intervener, submitted a brief.

Before: WARNER, C.J., and ARMSTRONG, DREBEN, KAPLAN and PORADA, JJ.

DREBEN, Justice.

Sciaba Construction Corporation (Sciaba) filed suit in the Superior Court against the city of Boston (city) and Modern Continental Construction Co., Inc. (Modern), seeking preliminary and permanent injunctions to prevent the city from awarding a contract for the repair of the North Washington Street Bridge to Modern on the ground that the award would be in violation of G.L. c. 30, § 39M, ³ the statute governing competitive bidding procedures on public works projects. The Department of Labor and Industries (department) was allowed to intervene as a party plaintiff. ⁴ A judge of the Superior Court denied the application for a preliminary injunction as did a single justice of this court upon Sciaba's petition for relief under G.L. c. 231, § 118, first par. Sciaba then filed this appeal under the second paragraph of G.L. c. 231, § 118. We agree that no injunction should have issued.

The facts are not in dispute. The city solicited competitive bids for the repair of the North Washington Street bridge pursuant to G.L. c. 30, § 39M. Each bidder was required to list separate prices for the various categories of work to be performed. For each item for which a quantity was listed by the city, the bidder was to specify a unit price in both words and figures and to compute the extended bid price by multiplying the unit price by the estimated quantity. The bidder was also required to provide a total bid price by adding the various extended bid prices.

Upon opening the bids on September 19, 1991, the three lowest bidders were as follows:

Modern Continental Construction                               $2,287,950
                Sciaba Construction Corporation                               $2,338,200
                N.E.L. Corp.                                                  $2,655,462.
                

Modern's bid contained an error in item No. 860.04 for the painting of a four-inch, reflectorized white line. While Modern listed a unit price of fifteen dollars in words and figures for an estimated quantity of 6,400 linear feet, its extended price was $960, a figure that was also reflected in Modern's total bid price. See note 5, infra.

The bid package furnished by the city to all bidders provided: "In case of a discrepancy between the prices written in words and those written in figures, the written words shall govern. In the event there is a discrepancy between the unit prices and the total sum of all the Items, the unit prices shall govern." If this formula had been applied, Modern's total bid price would have been based on a figure of $96,000 (6,400 X $15) for the white line, and Sciaba claims it would have been the lowest bidder.

Based upon the prices for the item quoted by Sciaba (twenty-five cents per linear foot) and the other low bidder, N.E.L. Corp. (twelve cents per linear foot), and the city's own estimate of ten cents per linear foot, the city's commissioner of public works concluded that Modern had made an obvious clerical error in its bid. For this reason he declined to apply the formula. Instead, relying on another provision in the bid specifications that reserved to him "the right to reject any and all proposals, or any Item or Items of the proposal should he deem it to be for the best interest of the City so to do," the commissioner rejected all bids for the painting of the reflectorized white lines.

The commissioner then awarded the contract to Modern, basing his decision on the following grounds: (1) the painting of the lines involved very minor work not directly connected to the main purpose of the contract, and it could easily be performed by a separate service order or by the city itself; (2) the dollar amount of the repair work was insignificant in relation to the total contract, representing a mere .03% of the entire project; (3) Modern's unit price was, on its face, an obvious clerical error; and (4) the rejection of all bids for this item would prevent an unnecessary expenditure of approximately $50,000 in public funds (the difference between Modern's and Sciaba's bid).

When notified of the city's decision, Sciaba filed a protest with the department, and, when advised that the city would ignore the department's determination in Sciaba's favor, see note 4, supra, Sciaba filed this action. It now appeals from the denial of a preliminary injunction.

Since the contract has been awarded and the bidding documents provided that the work was to be completed "within 180 consecutive days," there is presently nothing to enjoin. Accordingly, the appeal from the denial of the application for a preliminary injunction is moot. See Utility Contractors Assn. of New England, Inc. v. Department of Pub. Works, 29 Mass.App.Ct. 726, 729, 565 N.E.2d 459 (1991). Nevertheless, as (1) the matter has been briefed and argued at some length, the issue is one of public importance and is likely to arise again in similar factual circumstances and is likely to evade judicial review, and (2) a decision will probably prevent further litigation between the parties as to bid preparation costs, we consider it appropriate to express our views on the merits of this controversy. See Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141-142, 325 N.E.2d 270 (1975).

While strict adherence to statutory bidding requirements is required in matters of substance, Grande & Son, Inc. v. School Hous. Comm. of N. Reading, 334 Mass. 252, 258, 135 N.E.2d 6 (1956); Gil-Bern Constr. Corp. v. Brockton, 353 Mass. 503, 505-506, 233 N.E.2d 197 (1968), and this is so even in cases where the violation benefits the public, Phipps Prod. Corp. v. Massachusetts Bay Transp. Authy., 387 Mass. 687, 692, 443 N.E.2d 115 (1982), minor deviations from statutory bidding requirements do not compel rejection of the bid or invalidation of a contract.

Absent other considerations, an obvious clerical error that deceives no one does not require rejection of a bid. Fred C. McClean Heating Supplies Inc. v. School Bldg. Commn. of Springfield, 341 Mass. 322, 324, 169 N.E.2d 741 (1960). Thus, in that case the court held that the obvious clerical error of a bidder (West Side) in placing the figure for a deduction in "Alternate A" and writing "none" in "Alternate B," when the figure should have been placed in "Alternate B," did not compel rejection of the bid. The petitioner had relied on G.L. c. 149, § 44H, which requires rejection of every subbid "which is on a form ... which is incomplete, ... or which contains any addition not called for." Rejecting the petitioner's claim that the subbid was "incomplete" since there was no figure for "Alternate B" and that it contained an "addition not called for" by reason of the presence of a figure in "Alternate A," the court, at 324, stated, "The legislative intent to protect the public ( Grande & Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252, 258, 135 N.E.2d 6) does not require that § 44H be given the harsh and unreasonable construction which would be necessary to strike down the West Side subbid." Similarly in DiMinico & Cincotta, Inc. v. Fire Commr. of Boston, 346 Mass. 766, 193 N.E.2d 264 (1963), the court held that a bid was not "incomplete" and could be accepted even though a requested figure for the amount to be charged by the general contractor had been omitted. The bidder was required to list in item 1 all the charges of the general contractor, in item 2 the charges of the subcontractors, and to compute the total charges. Since the difference between item 2 and the total amount was readily ascertainable and that difference "obviously" covered all the work of the general contractor, the omission was held not to be a matter of substance. See also John D. Ahern Co. v. Acton-Boxborough Regional Sch. Dist., 340 Mass. 355, 164 N.E.2d 313 (1960); Grant Constr. Co. v. New Bedford, 1 Mass.App.Ct. 843, 301 N.E.2d 463 (1973); J. D'Amico, Inc. v. Worcester, 19 Mass.App.Ct. 112, 115 n. 5, 472 N.E.2d 665 (1984).

Federal executive agencies also permit the correction of clerical errors, albeit by explicit grant of authority. Congress enacted Pub.L. 93-400 with the purpose of establishing an office "to provide overall direction of procurement policies, regulations, procedures, and forms for executive agencies." 41 U.S.C. § 402(b) (1988). A regulation under the act, 48 C.F.R. 14.406-2 (1992), provides: "Any clerical mistake, apparent on its face in the bid, may [with certain qualifications] be corrected by the contracting officer before award." (An example of such an error given in the regulations is "[o]bvious misplacement of a decimal point.") See also 48 C.F.R. 14.405 (1992) which is the analog of our rule that minor or technical, as contrasted with substantive, deviations do not require invalidation of a bid.

An analysis of the bid documents submitted by Modern and the other low bidders leaves no question that the city's commissioner of public works was correct in concluding that an obvious clerical error was made. That Modern's intended price was fifteen cents and not fifteen dollars was apparent both from the face of the bid, ⁵ from the other low bids for the same work ($.25 and $.12 per linear foot), and from the city engineers' estimate ($.10 per linear foot).

Sciaba also claims...