Deary v. Town of Dudley

Massachusetts Supreme Judicial Court

Deary v. Town of Dudley

178 N.E.2d 83, 343 Mass. 192, 1961 Mass. LEXIS 633

CourtMassachusetts Supreme Judicial Court

DecidedNovember 17, 1961

StatusPublished

Cited by13 cases

This text of 178 N.E.2d 83 (Deary v. Town of Dudley) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deary v. Town of Dudley, 178 N.E.2d 83, 343 Mass. 192, 1961 Mass. LEXIS 633 (Mass. 1961).

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Opinion

Spalding, J.

The petitioners, fifteen taxable inhabitants of the town of Dudley, bring this petition under Gr. L. e. 40, §53.

The averments of the petition are as follows: The respondent town, through its sewer commissioners, on June 2 and June 9,1960, caused an invitation for bids to be advertised in connection with the proposed installation of sewers (called contract #14) on Pattison Avenue, Conant Avenue, and Hall Road in the town. On June 16,1960, bids (two in number) duly received in conformity with the invitation were opened, and it appeared that one was by LaPlante Bros, for $36,862, and the other was by Leo Bros., Inc., for $38,707.50. On July 26 the town, through its sewer commissioners, awarded contract #14 to Leo Bros., Inc., whose bid exceeded that of LaPlante Bros, by $1,845.50. The town had on prior occasions awarded contracts to LaPlante Bros., which is and has been a responsible contractor, for the installation of sewers. Article 6, § 9, of the town’s by-laws, which was in force at all times here material, provides that no contract for construction work, the estimated cost of which amounts to $300, shall be awarded unless proposals have been invited by advertisement in a prescribed manner. The advertisement among other things “shall reserve for the town the right to reject any or all of such proposals.” In their prayer for relief the petitioners asked that the respondent be restrained “from disbursing any funds ... to Leo Bros., Inc. for the performance of contract #14.”

The respondent demurred on the ground that the petitioners had not stated a case that would entitle them to relief. An interlocutory decree was entered sustaining the demurrer and containing the statement “no further amendment allowed.” Thereafter a final decree was entered dismissing the petition, from which the petitioners appealed.

The demurrer was rightly sustained. There was no provision in the by-law mentioned above that the contract must *194 be awarded to the lowest responsible bidder. On the contrary the by-law expressly provides that the advertisement for bids “shall reserve for the town the right to reject any or all . . . [bids].” There is no allegation in the petition, nor shall we assume, that the advertisements in connection with contract #14 failed to conform with this provision. See Roman Catholic Archbishop of Boston v. Board of Appeal of Boston, 268 Mass. 416, 418. Thus under its advertisement for bids the town reserved the right to reject any and all bids. It was, therefore, not obliged to award contract #14 to LaPlante Bros, even though it was the lowest bidder. See Larkin v. County Commrs. of Middlesex, 274 Mass. 437, 439-440. “In the absence of the not unusual provision requiring contracts to be awarded to the lowest responsible bidder such a requirement is not to be implied, but it is to be inferred that the awarding of contracts is left to the reasonable judgment of the municipal officers charged with the responsibility therefor.” Archambault v. Mayor of Lowell, 278 Mass. 327, 332.

The petitioners are not aided by G. L. c. 149, § 44A, as amended. This, so far as material, reads, “Every contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building by the commonwealth or by any governmental unit 1 thereof . . . shall be awarded to the lowest responsible and eligible general bidder on the basis of competitive bids” (emphasis supplied). It will be noted that the statute applies to a “public building.” The word “building” must be given its ordinary meaning and cannot be stretched to include a sewer. G. L. c. 4, § 6. See Nowell v. Boston Academy of Notre Dame, ISO Mass. 209, 210. Confirmation for this construction may be found in § 44C which enumerates types of work which could apply only to buildings. 2

Interlocutory decree affirmed.

Final decree affirmed.

1

‘Governmental unit” was defined in § 44A as including “every county, city, town, district, board, commission and other public body.”

2

Section 44A in its original form (1939 Senate Doe. No. 272) contained the words “public work” but as enacted (St. 1939, c. 480) the words “public building” were substituted.

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Spalding, J.

The petitioners, fifteen taxable inhabitants of the town of Dudley, bring this petition under Gr. L. e. 40, §53.

The averments of the petition are as follows: The respondent town, through its sewer commissioners, on June 2 and June 9,1960, caused an invitation for bids to be advertised in connection with the proposed installation of sewers (called contract #14) on Pattison Avenue, Conant Avenue, and Hall Road in the town. On June 16,1960, bids (two in number) duly received in conformity with the invitation were opened, and it appeared that one was by LaPlante Bros, for $36,862, and the other was by Leo Bros., Inc., for $38,707.50. On July 26 the town, through its sewer commissioners, awarded contract #14 to Leo Bros., Inc., whose bid exceeded that of LaPlante Bros, by $1,845.50. The town had on prior occasions awarded contracts to LaPlante Bros., which is and has been a responsible contractor, for the installation of sewers. Article 6, § 9, of the town’s by-laws, which was in force at all times here material, provides that no contract for construction work, the estimated cost of which amounts to $300, shall be awarded unless proposals have been invited by advertisement in a prescribed manner. The advertisement among other things “shall reserve for the town the right to reject any or all of such proposals.” In their prayer for relief the petitioners asked that the respondent be restrained “from disbursing any funds ... to Leo Bros., Inc. for the performance of contract #14.”

The respondent demurred on the ground that the petitioners had not stated a case that would entitle them to relief. An interlocutory decree was entered sustaining the demurrer and containing the statement “no further amendment allowed.” Thereafter a final decree was entered dismissing the petition, from which the petitioners appealed.

The demurrer was rightly sustained. There was no provision in the by-law mentioned above that the contract must *194 be awarded to the lowest responsible bidder. On the contrary the by-law expressly provides that the advertisement for bids “shall reserve for the town the right to reject any or all . . . [bids].” There is no allegation in the petition, nor shall we assume, that the advertisements in connection with contract #14 failed to conform with this provision. See Roman Catholic Archbishop of Boston v. Board of Appeal of Boston, 268 Mass. 416, 418. Thus under its advertisement for bids the town reserved the right to reject any and all bids. It was, therefore, not obliged to award contract #14 to LaPlante Bros, even though it was the lowest bidder. See Larkin v. County Commrs. of Middlesex, 274 Mass. 437, 439-440. “In the absence of the not unusual provision requiring contracts to be awarded to the lowest responsible bidder such a requirement is not to be implied, but it is to be inferred that the awarding of contracts is left to the reasonable judgment of the municipal officers charged with the responsibility therefor.” Archambault v. Mayor of Lowell, 278 Mass. 327, 332.

The petitioners are not aided by G. L. c. 149, § 44A, as amended. This, so far as material, reads, “Every contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building by the commonwealth or by any governmental unit 1 thereof . . . shall be awarded to the lowest responsible and eligible general bidder on the basis of competitive bids” (emphasis supplied). It will be noted that the statute applies to a “public building.” The word “building” must be given its ordinary meaning and cannot be stretched to include a sewer. G. L. c. 4, § 6. See Nowell v. Boston Academy of Notre Dame, ISO Mass. 209, 210. Confirmation for this construction may be found in § 44C which enumerates types of work which could apply only to buildings. 2

Interlocutory decree affirmed.

Final decree affirmed.

1

‘Governmental unit” was defined in § 44A as including “every county, city, town, district, board, commission and other public body.”

2

Section 44A in its original form (1939 Senate Doe. No. 272) contained the words “public work” but as enacted (St. 1939, c. 480) the words “public building” were substituted.

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178 N.E.2d 83, 343 Mass. 192, 1961 Mass. LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deary-v-town-of-dudley-mass-1961.

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