J. J. & V. CONSTRUCTION CORP. vs. COMMISSIONER OF PUBLIC WORKS OF FALL RIVER & another. [Note 1]

HALE, C.J. In this action the plaintiff seeks a judgment declaring that it was the lowest responsible and eligible bidder on a sewer construction project undertaken by the city of Fall River (city). The plaintiff has appealed from a judgment adverse to it. There was no error. The facts are not in dispute. The city invited sealed bids in connection with the "South End Sewer R" project. The invitation for bids provided that a "Certification of Bidder Regarding Equal Employment Opportunity" must accompany all bids. It also provided, "the owner may consider normal any bid not prepared and submitted in accordance

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with the provisions hereof and may waive any informalities . . .." Part III, Section 301 of Exec. Order No. 11246, 3 C.F.R. 174 (Supp. 1965), reprinted in 42 U.S.C. Section 2000e app., at 10296 (1970), required as a condition for approval of an application for a grant for Federal assistance for a public works project that the applicant agree to include the above mentioned certification in the construction contract. The present contract was to be paid for, in part, by such funds.

When the bids filed pursuant to the invitation were opened it appeared that the plaintiff was the third lowest bidder. The two lower bidders had not submitted the required certification with their bids. The city, however, permitted the lowest bidder to file its certificate prior to the awarding of the contract. That having been done, the contract was awarded to the lowest bidder.

As no question has been raised with respect to the qualifications of any of the bidders or that any of them was other than responsible, the only issue for our determination is whether the failure to submit the required certification with the bids rendered the two lowest bidders ineligible and thus disqualified their bids from consideration.

We agree with the judge's conclusion that the failure to file that certification along with the bids was an informality that the city had expressly reserved the right to waive. No State or Federal law or regulation required that the certification be filed with the bids. In fact, there was no State requirement that such a certification be filed at all. The only reference in the executive order with respect to such a certification was that it be included in the contract. That inclusion appears to have been accomplished here.

We are of the opinion that although the bidding procedure in the present case was pursuant to G. L. c. 30, Section 39M, rather than G. L. c. 149, Sections 44A-44L, this case is governed by the reasoning and holding in Gil-Bern Constr. Corp. v. Brockton, 353 Mass. 503 , 505-507 (1968).

Judgment affirmed.