GRANDE AND SON, INC. vs. SCHOOL HOUSING COMMITTEE OF NORTH READING & others.

WILKINS, J. This is a petition for a writ of certiorari to quash the action of the respondent school housing committee of the town of North Reading in awarding a contract for the construction of a Junior-Senior High School to L & R Construction of Medford, Inc. (hereinafter called L & R), as general contractor. The petitioner (hereinafter called Grande) was an unsuccessful general contract bidder, which contends that, had proper action been taken, it would have been selected as the "lowest responsible and eligible bidder for the complete work." G. L. (Ter. Ed.) c. 149, Section 44A, as appearing in St. 1954, c. 645, Section 1. The respondent committee filed a return. In the Superior Court a final judgment was entered dismissing the petition, and the petitioner

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appealed. G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4.

The commissioner of labor and industries and the members of the department of labor and industries of the Commonwealth should not have been made parties respondent. [Note p254-1] The only proper respondents to a petition for a writ of certiorari are the members of the tribunal whose action is to be examined. Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8. Marshall v. Registrar of Motor Vehicles, 324 Mass. 468, 469. Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527, 528-529.

The sole question presented to the court below was whether G. L. (Ter. Ed.) c. 149, Section 44C (A) cl. 1, as appearing in St. 1954, c. 645, Section 3, because of the Connor subbid, hereinafter referred to, made it mandatory upon the respondent committee to reject the bid of L & R. The case presents issues under the statutes regulating the award of contracts for public building projects by competitive bidding. The provisions of Section 44C (A) cl. 1 are: "Bids from general contractors shall be for the complete work as specified [emphasis supplied] and shall include the names of subcontractors and the amounts of their bids as designated in item two of the bid form and the general contractor shall be selected on the basis of such bid. Bids from general contractors must be submitted on the bid form general contractors as set forth in (G) of this section [Section 44C (G)]. Bid forms shall be completely filled in. Bids which are incomplete, conditional or obscure, or which contain additions not called for, shall be rejected."

These are the facts giving rise to the dispute. The town, represented by the respondent committee, invited sealed bids to be submitted in accordance with specifications for the school building, which is a project subject to G. L.

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(Ter. Ed.) c. 149, Sections 44A-44C, as appearing in St. 1954, c. 645, Sections 1-3, Section 44D, inserted by St. 1939, c. 480, and Section 44E, inserted by St. 1954, c. 645, Section 4. Bids of general contractors were to be submitted to the respondent committee at the town hall not later than 8 P.M. on April 22, 1955, at which time all bids were to be opened. Bids of subcontractors, including those for work on acoustical tile ceilings, were to be submitted two days earlier. The bid form for general contractors called for bids in two items, item 1 to be the work of the general contractor, and item 2 to consist of the subbids, in this instance twenty-three in number. This was required by G. L. (Ter. Ed.) c. 149, Section 44C (A) cl. 2, as appearing in St. 1954, c. 645, Section 3.

When the bids of the general contractors were publicly opened and read, the two lowest were as follows:

Grande, accordingly, was low on item 1, but L & R was low on item 2 and on the total bid.

In item 2 under the subbid for acoustical tile ceilings Grande listed Acoustical Contractors, Inc., as the bidder and $26,656 as the amount, and L & R listed Frederick A. Connor as the bidder and $18,000 as the amount. When the respondent committee opened the subbids, they discovered that the Connor subbid was based, not upon the specified acoustical tile ceilings, but upon acoustical plastic mechanically applied. L & R already knew, or should have known of the contents of the Connor subbid, which carried the statement authorized by Section 44C (B) that it was being sent to all general bidders except one, not L & R. For subbid form see Section 44C (H). While not a fact essential to our decision, the observation is material that making an intelligent general bid involves knowledge of the contents of the subbids listed in it. It may be noted that there is no contractual relation between the awarding authority and a subbidder. East Side Construction Co. Inc. v. Adams,

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329 Mass. 347, 353. M. Ahern Co. v. John Bowen Co. Inc. ante, 36, 41.

The bid of Acoustical Contractors, Inc., was the lowest of four proper subbids for acoustical tile ceilings, all by subbidders whose responsibility and eligibility were not questioned by the respondent committee. Likewise the responsibility and eligibility of Grande as a general contractor were not so questioned.

On May 20, 1955, the respondent committee and L & R signed a contract for construction of the school building. The contract price was $1,544,298.80; item 1 was $686,514.30; and item 2 was $857,784.50. [Note p256-1] Under the work covered by four subbids appeared the word "allowance": acoustical tile ceilings $18,000; stage curtains and lighting $6,200; bleachers $7,242; and household arts equipment $13,992. In view of the fact that the one question raised in the court below concerned the Connor subbid, the only so called allowance we shall consider is that relating to acoustical tile ceilings.

It is manifest that the original bid of L & R was not "for the complete work as specified" and was not a compliance with the statute. In substance, there is no difference between a subbid changed by the general contractor, as in Gifford v. Commissioner of Public Health, 328 Mass. 608, or the failure to include a subbid, as in East Side Construction Co. Inc. v. Adams, 329 Mass. 347, and the facts confronting us, where one of the subbids utterly failed to comply with the specifications. This, indeed, was the opinion of the commissioner of labor and industries, whose advice had been sought, which he gave in a letter dated May 3, 1955, to the town counsel who represented the respondent committee. There is nothing in Capuano, Inc. v. School Building Committee of Wilbraham, 330 Mass. 494, which aids the respondent committee. We are dealing with a case of "illegal" action and not with "conclusions as to matters of fact within their jurisdiction" (page 496).

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In justification of the award of the contract to L & R on a new basis not in accordance with the specifications, several arguments have been advanced. One is that pursuant to c. 149, Section 44C (D), as appearing in St. 1954, c. 645, Section 3, [Note p257-1] the respondent committee determined that the difference between the two acoustical bids was $8,656 and that by adding this amount to the bid of L & R the adjusted contract amount of L & R would have been $1,550,544 and lower than Grande by $3,456. But Section 44C (D) applies only "after the selection of the general contractor" and only if "it be decided to consider subcontractors other than the ones named by the general contractor in his bid." A procedure is set up by which in that event the awarding authority and the selected general contractor shall jointly consider the names and amounts of all subbidders and may substitute other subbidders. That procedure was not followed by the respondent committee. No new subbidder was substituted. Instead, the provision for acoustical tile ceilings was struck from the contract.

In support of their action the respondent committee refer us to c. 149, Section 44A, which provides: "Every contract . . . shall be awarded on the basis of competitive bids to the lowest responsible and eligible bidder for the complete work. . . . The awarding authority shall reserve the right to reject any or all bids, if it be in the public interest so to do." There are several answers to this contention. In the first place, "the right to reject any or all bids" appears to

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refer to general bids only. Section 44C (E) [Note p258-1] expressly limits the power of the awarding authority to reject all subbids on an item of work to cases where none of the subbids is by a competent person or where a single subbid was received in an amount not reasonable to accept without competition. But if we assume for the purpose of argument that "the right to reject any or all bids" includes subbids, there still would be no authority to accept an incomplete general bid. The provision for rejecting bids is not intended as a device to be adopted as part of the act of awarding a contract so as to justify making a contract different from that submitted to competitive bidding. If, after bids are opened, the awarding authority could, either with or without negotiation with a selected general contractor, omit portions of the proposed work for reductions in price, the legislative intent to protect the public, all too easily, could be evaded. That the awarding authority, as contended here, had as one of their purposes a reduction in cost is of no consequence. Gifford v. Commissioner of Public Health, 328 Mass. 608, 617. East Side Construction Co. Inc. v. Adams, 329 Mass. 347, 352-353. Even the best of motives cannot excuse contravention of the statute.

L & R, in its brief as amicus curiae, states that "inasmuch as the statute expressly provides that an awarding authority shall have the absolute right to treat any item as an allowance, such action puts all bidders on an equal footing by such rejection." The only statutory reference to allowances is in Section 44C (C)2 relating to the case where no

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subbids have been filed for a class of work to be done by subcontractors. Obviously, this provision has no present application. Nor, if material, are all bidders placed on an equal footing when the selected general contractor is awarded without competitive bidding a contract to do less than all the work at a reduced amount.

The respondent committee suggest that the proceedings are moot. The building, however, is not completed, and, according to affidavits submitted, will not be completed before October 1, 1956. It is said that any judgment in favor of Grande would be academic. Reference is made to Section 44B, as appearing in St. 1954, c. 645, Section 2, which, in part, provides that award of any contract must be within thirty days of opening the bids. This does not have the result that an illegal award of a contract becomes immune from attack in that length of time. It is the function of a writ of certiorari upon a proper and adequate return to correct substantive errors of law by a judicial or quasi judicial tribunal which are not otherwise reviewable by a court. Gifford v. Commissioner of Public Health, 328 Mass. 608, 619. The respondent committee, on the authority of the case last cited, were acting in a quasi judicial capacity. There was error of law in their award of the contract.

The final judgment is reversed, and a new final judgment is to be entered dismissing the petition as to the respondents commissioner of labor and industries and the members of the department of labor and industries of the Commonwealth, and quashing the proceedings of the respondent school housing committee and the purported contract awarded by that committee.

So ordered.