Sears, Roebuck & Co. v. School Committee of Burlington

• Decision Date: 30 July 1975
• Citation: Sears, Roebuck & Co. v. School Committee of Burlington, 331 N.E.2d 551, 3 Mass.App.Ct. 399 (Mass. App. 1975)
• Parties: SEARS, ROEBUCK & CO. v. SCHOOL COMMITTEE OF BURLINGTON et al.
• Court: Appeals Court of Massachusetts

Page 551

331 N.E.2d 551

3 Mass.App.Ct. 399

SEARS, ROEBUCK & CO.

v.SCHOOL COMMITTEE OF BURLINGTON et al.

Appeals Court of Massachusetts, Middlesex.

Argued March 18, 1975.

Decided July 30, 1975.

David P. Skerry, Medford (Charles R. Bennett, Jr., Medford, with him), for plaintiff.

David Berman, Town Counsel, Medford, for the School Committee of Burlington, submitted a brief.

Anthony Galluccio, for the Department of Labor and Industries, Boston, amicus curiae, submitted a brief.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

ARMSTRONG, Justice.

On April 9, 1974, the defendant school committee awarded a contract for the furnishing and installation of carpeting in a school to the defendantJohn Keene, doing business as Keene Carpets Co.(Keene), notwithstanding the lower bid submitted by the plaintiff(Sears).Sears brought this bill in which it sought a declaration that the award was invalid under the provisions of G.L. c. 149, § 44A, an injunction against the performance of the contract, an order that the contract be awarded to Sears, and general relief.The Superior Court sustained a demurrer to the bill on the grounds that it failed to state a claim on which relief could be granted and that the plaintiff had a plain and adequate remedy at law.Thereafter, a final decree entered (1) again sustaining the demurrer without leave to amend, (2) declaring that the award of the contract was governed by G.L c. 40, § 4B, and not by G.L. c. 149, § 44A-- L, and that the award of the contract to Keene was valid, and (3) dismissing the bill.The case is before us on Sears' appeal from the final decree.

The appeal from the final decree brings before us the correctness of the interlocutory decree sustaining the demurrer.MANUFACTURING IMPROVEMENT CORP. V. GEORGIA PAC. CORP., --- MASS. APP., --- - ---, 286 N.E.2D 339(1972)^A.The demurrer should have been overruled in view of the declaratory relief sought.Moskow v. Boston Redevelopment Authy., 349 Mass. 553, 570, 210 N.E.2d 699(1965), cert. den.382 U.S. 983, 86 S.Ct. 558, 15 L.Ed.2d 472(1966).Dunphy v. Commonwealth, --- Mass. ---, ---, fn. 5, ^b331 N.E.2d 883, ---, fn. 5(1975).There is no question but that an actual controversy was set forth.Wolf v. Commissioner of Public Welfare, --- Mass. ---, --- - ---, ^c327 N.E.2d 885(1975).The plaintiff's standing is clear.Industrial Engr. & Metal Fabricators, Inc. v. Poorvu Constr. Co., Inc., 354 Mass. 287, 290, 236 N.E.2d 886(1968).The school committee's compliance with the applicable statutes is subject to judicial review.Secretary of Environmental Affairs v. Massachusetts Port Authy., --- Mass. ---, ---, ^d323 N.E.2d 329(1975), and cases cited.The existence of a remedy at law, adequate or not, is immaterial.Fred C. McClean Heating Supplies, Inc. v. Westifield Trade High School Bldg. Comm. of Westfield, 345 Mass. 267, 270, 186 N.E.2d 911(1962).The bill should not have been dismissed.Vasilakis v. Haverhill, 339 Mass. 97, 101, 157 N.E.2d 871(1959).

It follows that the interlocutory decree sustaining the demurrer and those portions of the final decree again sustaining the demurrer and dismissing the bill are in error.The final decree, however, is anomalous, in that it also makes declarations of the rights of the parties wholly dispositive of the case.We turn to an examination of the bill to determine whether the facts alleged by Sears, if established (no answer having yet been filed), would entitle Sears to a more favorable declaration.

The bill alleges that the school committee, on March 8, 1974, advertised for bids for the furnishing of carpeting to be used in the renovation of a certain school.The contract specifications make clear that the contract required not only the furnishing of the carpeting but also its complete installation, wall to wall, cemented to the floor, all to be done by competent workmen furnished by the bidder, and in accordance with detailed standards.On March 27, 1974, the bids were opened.The three lowest bidders were determined to be ineligible for reasons not here contested.The next lowest bidders were Sears ($7,437.40) and Keene ($7,471.50).On April 9 the school committee awarded the contract to Keene, stating that Keene was 'a local concern and only $34.00 higher than the low bidder.'Following a protest by Sears, and a hearing thereon, the Commissioner of Labor and Industries found, pursuant to G.L. c. 149, § 44K, that the contract was governed by the provisions of §§ 44A--44L, and that the award to Keene violated § 44A, which, in relevant part, states:

'Every contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any building . . . by any governmental unit . . . (of the Commonwealth), estimated to cost . . . more than two thousand dollars . . . shall be awarded to the lowest responsible and eligible general bidder . . ..'

The bill alleges that the contract is one for the construction, reconstruction, alteration, remodelling or repair of a building.

It is clear that if these allegations are true the award of the contract to Keene violated the provisions of § 44A, as the Commissioner found, and that Sears would be entitled to a declaration accordingly.It cannot...