This bill for declaratory relief under G. L. c. 231A, § 1, was brought in the Superior Court on a case stated and reported to this court without decision. G. L. c. 214, § 31. We summarize relevant parts of the case stated which incorporates by reference numerous exhibits.
In July, 1966, the city advertised for bids for the “Site Preparation Contract” for the Brockton High School. The work contemplated by the contract covered site grading, and the construction of water, sewer and drainage facilities. The invitation rеserved to the city the right to waive any informality in or to reject any or all bids and to accept the bid deemed to be in the best interests of the city. A booklet entitled, “Contract and Specifications for Brockton High School Site Preparation Contract,” was made available to all prospective bidders by the city. Under the heading “Information for Bidders” in а subsection entitled “Notice of Special Conditions” appears the following statement; “The Contractor shall рrepare and submit a network analysis of a construction progress schedule with his proposal. This method of analysis is gеnerally referred to as the Critical Path Method (CPM).”
Both Gil-Bern and Northgate bid on the project. Northgate’s total price bid of $587,345 was the lowest bid. Gil-Bern’s total price bid of $619,405 was next lowest. Gil-Bern submitted a CPM with its bid; Northgate did not. The sealed bids were opened on August 10, 1966. On August 12, Northgate submitted to the city’s consulting engineers a CPM which was not wholly satisfactory. On August 15, it submitted a modified CPM which was acceрted by the engineers who recommended to the mayor that the contract be awarded to Northgate. Thereaftеr, on August 18, the mayor of Brockton in good faith waived the requirement that Northgate file its CPM with its bid and, deeming it in the best interests of the city, аwarded the contract to Northgate. Although the mayor would not have awarded the contract to Northgate if Northgate had not filed the CPM before the contract was made, he attached no particular importance to the filing of the CPM with the bid.
The issues are whethеr the contract was subject to G. L. c. 149, §§ 44A-44L, and whether the contract should have been awarded to Gil-Bern as the “lowest responsible and eligible general bidder.” G. L. c. 149, § 44A.
1. North gate’s argument that the contract is not subject to G. L. c. 149, § 44A, is untenable. The argument is based on Deary v. Dudley,
2. The second issue must be discussed in greater detail. General Laws, c. 149, § 44A, requires that contracts subject to that section be awarded to the lowest “responsible and eligible” bidder. Both corporations are concededly “competеnt and qualified.” If Northgate is not “responsible and eligible,” the contract should not have been awarded to it. The only objеction to Northgate’s eligibility is based on its failure to include a CPM with its bid. In matters
The question before us is thus reduced to whether the failure to include a CPM with the bid is a substantial deviation from the published requirements. The provision in the invitation for bids that a CPM be submitted with the bids was not required by the statute. G. L. c. 149, §§ 44A-44L. Specifically, a CPM is not a plan of the type made optional with the awarding authority under § 44C. Further, it is difficult to see how the time of submission of the CPM could affect the total price bid of any of the bidders. Unlike Grande & Son, Inc. v. School Housing Comm. of No. Reading,
3. A final decree will be entered declaring that the Brockton High School Site Preparation Contract was properly awarded to Northgate Construction Corporation and that Gil-Bern Construction Corр. has no interest in that contract.
So ordered.
Notes
We note that the specifications for the contract issued by the city declarеd that the contract was subject to G. L. c. 149. While this declaration may not be conclusive in law it strongly indicates that the city intеnded, and North-gate accepted, the contract as ope for appurtenances to a public building.