Home STANLEY ROKETENETZ, INC. vs. TOWN OF STONEHAM & others.

3 Mass. App. Ct. 707

February 6, 1975

This is a bill for declaratory relief challenging the validity of the bid of the defendant Cotoni made in response to an invitation of the defendant board of health (board) for bids for the collection of garbage in the town of Stoneham over a three-year period. The plaintiff contends that the bid was deficient in two respects. The Superior Court in its final decree declared (among other things) Cotoni to be a qualified and eligible bidder. There was no error. 1. The contention of the plaintiff that Cotoni failed to furnish references as required by the bid specifications is without merit. 2. Assuming the bid specifications required a bidder to deliver a bankbook "in the full sum of the contract price", i.e. the three-year total, as an alternative to providing a performance bond (the form of the agreement required to be executed by the successful bidder provided that such bidder "shall furnish each and every year . . . a surety company bond in the penal sum satisfactory to . . . [the town]"), it was within the power of the board to waive strict compliance with that requirement and to accept Cotoni's offer to furnish a bankbook "for the full sum of the contract price per year." See Gosselin's Dairy, Inc. v. School Comm. of Holyoke, 348 Mass. 793 (1965). See also Grant Constr. Co. of R. I. v. New Bedford, 1 Mass. App. Ct. 843 (1973), and cases cited therein. Furthermore, the board was acting within its power when it reserved in its bid specifications "the right to reject any and all bids, or to accept any bid, should it be deemed in the best interest of the town to do so." Larkin v. County Commrs. of Middlesex, 274 Mass. 437 , 439-440 (1931).

Decree affirmed.

Home KNOWLES BROADCASTING CO., INC. & another vs. STEVEN J. ORETO.

3 Mass. App. Ct. 707

February 11, 1975

The plaintiffs appeal from a decree of the Superior Court dismissing their bill in equity against a former employee to enforce a covenant not to compete. The appeal must fail because of the trial judge's express findings, which were not plainly wrong (Richmond Bros. Inc. v. Westinghouse Bdcst. Co. Inc. 357 Mass. 106 , 109 [1970]; All Stainless Inc. v. Colby, 364 Mass. 773 , 776 [1974]), that various factors usually considered grounds for enforcing such a covenant were not present (see Richmond Bros. Inc. v. Westinghouse Bdcst. Co. Inc., supra, at 110; National Hearing Aid Centers, Inc. v. Avers, 2 Mass. App. Ct. 285 , 289-290 [1974]) and because of the absence of any finding (or any compelling basis for a finding) that enforcement of the

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covenant would protect the former employer from anything other than ordinary competition. See Richmond Bros. Inc. v. Westinghouse Bdcst. Co. Inc., supra, at 111; All Stainless, Inc. v. Colby, supra, at 779-780; Marine Contractors Co. Inc. v. Hurley, 365 Mass. 280 , 287-288 (1974); National Hearing Aid Centers, Inc. v. Avers, supra, at 289.

Decree affirmed.