336 Mass. 143 | Mass. | 1957
This is a bill for a declaratory decree and other relief involving the legality of a general contract awarded by the department of public health for the construction of a sewage treatment plant in Southbridge. Demurrers by the defendants commissioner of public health and R. Zoppo Co., Inc., were sustained by the court below, and a final decree was entered dismissing the bill as to these defendants.
The averments of the bill, as amended, may be summarized as follows: The department of public health invited sealed bids for the construction of a sewage treatment plant in Southbridge. According to the notice to contractors, all bids for the project were subject to the provisions of G. L. (Ter. Ed.) c. 149, §§ 44A-44E (see St. 1939, c. 480; St. 1954, c. 645). The plaintiff James Construction Company, Inc. (hereinafter called James), and the defendant R. Zoppo Co., Inc. (hereinafter called Zoppo), each submitted a bid
After alleging the foregoing, the bill states that an actual controversy exists involving the validity of both the subbid and the general bid submitted by Zoppo. The bill asks that the Zoppo general bid be declared invalid, that the award of the general contract to Zoppo be quashed, and that James be declared the lowest responsible and eligible bidder for the general contract.
“Ordinarily a demurrer cannot properly be sustained to a bill for a declaratory decree on the ground that the court does not agree with the proposition for which the plaintiff contends. Usually a declaratory decree should be made in any event.” County of Dukes County v. New Bedford, Woods Hole, Martha’s Vineyard & Nantucket Steamship Authority, 333 Mass. 405, 406. Cases may arise where the plaintiff has failed to state a case presenting a controversy proper for determination under the declaratory procedure and in such a case there is no reason why a demurrer may not be sustained. Brown v. Neelon, 335 Mass. 357, 360-361. How
The bill does not contain sufficient allegations that the provisions of G. L. (Ter. Ed.) c. 149, §§ 44A-44E, governing the award of contracts for public buildings, were not observed by the awarding authorities. To be sure, the bill does allege certain facts purporting to affect the validity of the subbid of Zoppo for the plumbing and outside piping work. But it also appears from the bill that all the subbids for this work were rejected. The statute (§ 44C [TET]) provides: “The awarding authority shall reserve the right to reject all sub-bids on any item or items, if it is determined that none of such bids represents the bid of a person or firm competent to perform the work as specified, or that only one such bid was received and that the price is not reasonable for acceptance without competition. If a rejection of a sub-bid occurs, new bids shall be requested on such item or items as may have been rejected . . ..” Thus, for the reasons mentioned in the statute, the department of public health may properly have rejected all the subbids for the plumbing and outside piping work and sought new bids in accordance with the statute. Since the actions of public officials are presumed-to be regular and lawful, we must assume, in the absence of any allegation to the contrary, that the awarding authority followed the procedure prescribed by the Legislature. Comerford v, Meier, 302 Mass. 398, 403. The general allegation stating the conclusion that James rather than Zoppo “was in fact the lowest, responsible and eligible bidder,” without any specification of facts in support thereof, does not provide material for a judicial determination. See Hitchcock v. Examiners for Hampshire County, 301 Mass. 170, 172; Doherty v. Commissioner of Insurance, 328 Mass. 161, 163.
Appeals from interlocutory decrees dismissed.
Final decree affirmed with costs of this appeal.
Ernest A. Johnson, commissioner of labor and industries, was also named as a defendant, but he did not demur and the bill was not dismissed as to him.