INDUSTRIAL ENGINEERING & METAL FABRICATORS, INC. & another vs. POORVU CONSTRUCTION CO., INC. & another.

CUTTER, J. Industrial Engineering & Metal Fabricators, Inc. (Industrial) and E. T. Ryan Iron Works, Inc. (Ryan) seek declaratory relief concerning an award to Poorvu Construction Co., Inc. (Poorvu), the low bidder on the general contract, of the miscellaneous and ornamental iron subcontract in connection with the construction of a dormitory at a State college. The award was made by the Commonwealth's Bureau of Building Construction (the bureau), the director of which, Horace Chase, is also named as a defendant. Industrial and Ryan say that the award did not comply with G. L. c. 149, Section 44J (as amended through St. 1956, c. 679, Section 1), [Note 1] because (among other things) they contend (a) that Poorvu does not customarily perform with its own employees the sub-trade of miscellaneous and ornamental iron work (the iron work sub-trade) and is not qualified to do the work required by Section 10 of the contract specifications, and (b) that the bureau's approval of Poorvu as subcontractor arbitrarily disregarded c. 149, Sections 44A-44L.

The trial judge made findings, justified by the evidence. On the basis of these findings (except where otherwise indicated) the facts are stated below. He concluded, inter alia, (a) that "Poorvu as low general bidder customarily performed with . . . [its] own employees the [iron work] subtrade," (b) that "Chase made a reasonable investigation concerning the protests," and (c) that his decision "was made in good faith and in the exercise of his . . . honest judgment" and "was not unreasonable, illegal, arbitrary, capricious, or fraudulent." He ruled that the plaintiffs

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have standing to bring this proceeding. A final decree made declarations consistent with the judge's conclusions. The plaintiffs appealed. The evidence is reported.

Poorvu, low general bidder on the project, included its own sub-bid [Note 2] for the iron work. Industrial and Ryan are competent and responsible organizations to do the iron work.

By letter to the bureau, Industrial protested Poorvu's iron work sub-bid. Poorvu, in answer to an inquiry by Chase, mentioned four jobs which Poorvu had done, or was doing, which involved iron work. [Note 3] Poorvu between January 1, 1962, and June 30, 1966, was general contractor on six jobs on which iron work subcontracts were awarded to contractors other than Poorvu, and on which Poorvu had not made an iron work sub-bid. In 1962, Poorvu had submitted an iron work bid on a project but did not get the job.

On August 17, 1966, Joseph G. Surette, a member of Chase's staff, submitted a written opinion to Chase, that Poorvu was "qualified to furnish and install the . . . [iron work] items. Chase discussed Industrial's protest with Surette and two other members of his staff. [Note 4]

The judge also made the general finding that there "is no

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clear delineation as to what is . . . covered specifically as miscellaneous and ornamental iron works . . .. Great latitude and discretion is left to the individual designer and architect. Items sometimes included in miscellaneous and ornamental works . . . are at other times included in specifications under some other designation, but still involve the same work and materials . . . covered by miscellaneous and ornamental iron work . . .." With respect to Poorvu, he noted "that there is no consistent definition of what `miscellaneous and ornamental iron work' is, and that on every prior project of which Poorvu was the general contractor . . . [it] had performed with . . . [its] own employees some types of work which are classified at times as miscellaneous and ornamental iron work."

Whether fabrication is necessarily to be regarded as part of the iron work sub-trade is not specifically stated in the statutes (c. 149, Sections 44A-44L, as amended). This record indicates (a) that the matter also is not clearly determined in departmental guides, [Note 5] and (b) that different sets of specifications may deal with fabrication in different ways, and, on occasion, include various types of metal work in sections of the specifications other than the section relating to miscellaneous and ornamental iron work. The testimony also indicates that various types of workers, including millwrights, ironworkers, and carpenters, have the necessary skills to do installation of iron work and at least to make adjustments of standard iron work items to meet the needs of particular jobs.

1. The plaintiffs have standing to bring this proceeding. Quincy Ornamental Iron Works, Inc. v. Findlen, 353 Mass. 85, 87-88, 90 (the Findlen case).

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2. Chase, as the bureau's director, after receipt of the protest, in his discretion, made reasonable investigation of the extent to which Poorvu theretofore had been, and currently was, engaged in iron work with its own employees. The extent of his investigation (see fn. 4), so long as reasonable, was a matter for his judgment under the general standards laid down in Section 44J. See Burgess & Blacher Co. v. Beverly Housing Authy. 351 Mass. 88, 89-90. In the absence of an explicit legislative requirement, we would be slow to conclude that the Legislature intended to impose on the bureau's director the substantial administrative burden of any greater investigation than he might deem necessary to satisfy him. This seems to be the type of matter which must be decided rapidly and with some finality in order not to delay the letting of contracts.

As Chase pointed out in his testimony, "historically . . . contractors . . . move into the various trades gradually; in other words, two years ago they might not have done any [iron] work . . . [o]ver a period of time they pick up this phase of the work and they make themselves qualified." We perceive nothing in the statutory requirement (Section 44J, fn. 1, at [C]) that a general bidder "customarily perform such sub-trade," which precludes a general contractor from moving into a sub-trade area, and doing that work as well as other aspects of construction work.

The record shows that Chase had knowledge of Poorvu's general ability, responsibility, and qualifications. He could take into account reasonably the absence of a consistent definition of "miscellaneous and ornamental iron work" and the uncertainties affecting whether and to what extent fabrication is a part of that work. He also had knowledge of construction conditions generally and of what iron work Poorvu in fact had done. There was warrant for the decision that Poorvu was then customarily doing iron work and was qualified to submit an iron work sub-bid (see fn. 1 at [A] and [D]) in June, 1966. The director's decision was permissible, even if, in the somewhat confused circumstances affecting this sub-trade generally and Poorvu

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in particular, a different decision perhaps might reasonably have been reached.

The statute (fn. 1, at [B]) leaves the decision "to the satisfaction of the awarding authority." The judgment is to be that of the administrative authority charged with responsibility. As was said in the Findlen case, 353 Mass. 85, 89, the judge reviewing the awarding authority's decision "is not empowered to make his own determination of the general bidder's customary practice or qualifications." Nothing in the record suggests to us that Chase misunderstood the issue before him or failed to pass upon it, that he acted arbitrarily, capriciously, or fraudulently, or that he either abused his discretion or lacked information necessary to its exercise.

Decree affirmed.