BURGESS & BLACHER COMPANY vs. BEVERLY HOUSING AUTHORITY & another.

BURGESS & BLACHER COMPANY vs. BEVERLY HOUSING AUTHORITY & another. [Note 1]

351 Mass. 88

May 3, 1966 - June 8, 1966

Suffolk County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, & REARDON, JJ.

Rejection by an awarding authority of a subbid for certain work submitted by the successful general bidder on a public construction project was not required under G. L. c. 149, Section 44H, as amended through St. 1963, c. 445, Section 2, by reason of such bidder's insertion, on the form for subbids prescribed by Section 44G, as amended through. St. 1961, c. 604, Section 6, after the word "except" in the statement "this sub-bid may be used by any general bidder, except . . . ," the words "all general bidders other than" itself. [89]

Findings by the trial judge in a suit in equity by a subbidder who had submitted a lower subbid for certain work on a public construction project than a subbid for such work submitted by the successful general bidder disclosed that there was no merit in a contention by the plaintiff that the general bidder was not qualified under G. L. c. 149, Section 44J, to submit the subbid. [89-90]

BILL IN EQUITY for declaratory relief, filed in the Superior Court on August 25, 1965.

The plaintiff appealed from a final decree entered after hearing by Sgarzi, J., declaring that a subbid submitted by the defendant James J. Welch & Co., Inc. on a housing construction project was valid.

Warren G. Miller for the plaintiff.

Robert J. Sherer for James J. Welch & Co., Inc.

WHITTEMORE, J. James J. Welch & Co., Inc. (Welch) was, in July, 1965, the successful general bidder for the construction of a housing project for the elderly in Beverly. Welch also submitted a subbid for the roofing, flashing and sheet metal work. The form for subbids prescribed by G. L. c. 149, Section 44G, as amended through St. 1961, c. 604, Section 6,

Page 89

included this statement: "To All General Bidders Except Those Hereinafter Expressly Excluded: . . . C. This sub-bid may be used by any general bidder, except . . . ." Welch in its subbid inserted after the word "except" the words "all general bidders other than James J. Welch & Co., Inc." The plaintiff had submitted a lower subbid and contends that, because of this insertion, Welch's subbid had to be rejected under G. L. c. 149, Section 44H, as amended through St. 1963, c. 445, Section 2. That section directs rejection of a subbid "on a form not completely filled in, or which is incomplete, conditional or obscure, or which contains any addition not called for." We disagree. Welch's meaning was plain. The subbid could be availed of in accordance with its terms. We are not concerned with whether under another provision of Section 44H in its then form ("Every subbidder . . . shall be bound . . . to every general bidder not expressly excluded therein from the use thereof") Welch, in order to prevent the use of his subbid by any other general bidder, would have had to name that bidder specifically. [Note 2] The plaintiff's reliance on Wayland Sch. Bldg. Comm. v. Cardarelli Constr. Co. Inc. 349 Mass. 766 , is misplaced. That case holds that a general bid is not invalid because it makes use of a subbid containing a general exclusion similar to that used by Welch. The holding is based on the provision of Section 44H that (in its then form) read: "If a general bidder not named in said list [of sub-bidders] as expressly precluded from doing so names as a sub-bidder . . . a person included . . . in said list . . . , neither the general bid . . . nor the general contract . . . shall be invalid or rejected because of the invalidity of such sub-bid." [Note 3]

There is nothing in the contention that Welch was not qualified under Section 44J to submit a subbid. The trial judge

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found that "the awarding authority . . . conducted a reasonable inquiry . . . as to whether . . . Welch customarily performed the sub-trade and was qualified to do the work required, and concluded that it was satisfied." He also found "that . . . Welch customarily performs the sub-trade and is qualified to do the work . . . ." The finding is plainly implicit in the foregoing that the full statutory requirement had been met, and that the performance of the subtrade was customarily by the general bidder's "own employees."

Final decree affirmed.

FOOTNOTES

[Note 1] James J. Welch & Co., Inc.

[Note 2] The issue cannot arise under Sections 44G and 44H, as amended by St. 1965, c. 836. Section 44G now expressly provides for the optional statement that the subbid "may only be used by the following general bidders."

[Note 3] For permissive substitution of subbidders after first selection of the general bidder, see G. L. c. 149, Section 44I (2).