HomeMy WebLinkAbout1976-10-20 Board of Public Works Memo 7
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October 20, 1976
H. Theodore Cohen, Esquire
Tyler Reynolds & Craig
One Boston Place
Boston, Mass. 02108
RE: Sanitary Sewer Mains
Reading, Mass.
Dear Sir:
We have reviewed the protest of DiIdartino Brothers Co. , Inc. against
the Town of Reading concerning the above-mentioned project at a
conference held at the Office of the General Counsel, Department of
Labor and Industries on October 19, 1976.
The basis of DiMartino' s protest is that he as General Contractor
is seeking the return of his bid deposit and the Town of Reading
seeks to retain it as liquidated damages due to the failure of
DiMartino, the General Contractor, to do the work.
Our standard of review in cases such as these are quite restricted.
It is not our function to substitute the administrative judgement of
the Department of Labor and Industries over that of the public
awarding authority.
It is the public owner who has the primary responsibility and legal
obligation to make the determination as to who in their opinion is
the low responsible and eligible bidder. We provide an overview .
Historically, prior to 1961, the return of deposit section was
limited to,
"in case of death, disability or other unforseen
circumstances"
which might occur after the bid had been submitted, the juxta-
position of the "bona fide clerical or mechanical error" clause be-
fore it, expanded the term to errors of copying, transference or
transcription, including mistakes of arithmetical computation
which occur during the final stages of bid preparation. The main
H. Theodore Cohen, Esquire October 20, 1976
Tyler Reynolds & Craig Page 2
object to be accomplished was to relieve contractors of the financial
hardship resulting from inevitable errors which occur during the
last minute calculations and compilations required by competitive
bidding. Lincolm Sudbur Re Sch. D. Vs . Brand J. Jordan Corp. ,
356 Mass . NE
In the matter before us , the contractor did duly inform the Town of
Reading of his inability to acquire a performance bond after con-
tacting at least 8 bonding companies . It must be pointed out that
the intent of this statute is to ascertain the lowest eligible and
responsible bidder and not take advantage of a low bid when "un-
foreseen circumstances" develop. Here the documentation presented
by DiMartino indicates that an obvious "good faith" effort was
made by him to obtain suitable bonding.
It would seem that on consideration of all these circumstances that
the entire bid deposit be returned to the contractor, and he not be
penalized for being unable to attain sufficient bonding as mandated
by law.
Very truly yours ,
th %J4J s
SEL
cc: Attorney John M. Corcoran