Brisk Waterproofing Co., Inc. Vs. Director of the Division of Building Construction, 338 Mass. 784

11/04/1958 Posted By: Corwin & Corwin LLP
Court: SUPREME JUDICIAL COURT OF MASSACHUSETTS Citation: 338 Mass. 784 Parties: BRISK WATERPROOFING CO., INC. vs. DIRECTOR OF THE DIVISION OF BUILDING CONSTRUCTION. (Rescript Opinions.) Decision Date: November 4, 1958 Order sustaining demurrer affirmed. Page 785 It is alleged in the petition for a writ of certiorari that the petitioner filed a sub-bid for the waterproofing work on a building for which sealed bids had been publicly invited on August 6, 1957, by the division of building construction (hereinafter called the division) of which the respondent is director; that three bids were received; that the respondent rejected two of these as from sub-bidders who had not shown their competency to do the work; and that the respondent also rejected the petitioner's bid. General Laws c. 149, Section 44D, as appearing in St. 1956, c. 679, Section 1, provides that "the awarding authority shall reserve the right to reject any sub-bid . . . if it determines that such sub-bid does not represent the sub-bid of a person competent to perform the work . . . or that only one such sub-bid was received and that the price is not reasonable for acceptance without competition" (emphasis supplied). The word "such" obviously refers to a "sub-bid of a person competent to perform the work." In James Constr. Co. Inc. v. Commissioner of Pub. Health, 336 Mass. 143, 145, a similar situation arose under G. L. c. 149, Section 44C (E), as appearing in St. 1954, c. 645, Section 3. The relevant language of the former Section 44C (E) is comparable to that now found in Section 44D, and the James Constr. Co. case appears to have treated the rejection of all sub-bids as proper in the absence of allegations, not here present, that the awarding authority failed to follow the procedure prescribed by the Legislature. Under Section 44D, it was open to the division, having before it only one sub-bid from a person competent to perform the work, to reject it if it found that the price was not reasonable for acceptance without competition. Grande & Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252, 258, does not require a different result. In that case, this court had no occasion to consider the situation of fact presented in this case and in the James Constr. Co. case.