TO:
FROM:
DATE:
RE:
Lina Swan, Director of Fiscal Operations
Stephen H. Clark, Administrative Law Judge
June 15, 2005
Request for Direct Payment Under g. L. c. 30, s.39F (Section 39F)
Claimant:
Contractor:
Contract #
City/Town:
Amount:
Algar Construction Corp. (Algar)
Roads Corporation (Roads)
Contract #99042
Charlton (Rte. 20)
$32,358.25
1. Algar filed this renewed direct payment demand (Demand) on April 4, 2005
following the rejection without prejudice of its March 5, 2005 demand. On April
6, 2005 I found the Demand in compliance with the formal requirements of
Section 39F and requested a report on the status of the subcontract work from
District 3.
2. The District responded on May 6, 2005 that Algar was an approved contractor,
that the work was completed on April 16, 2004, that it was satisfactorily
completed; and that the Department did not intend to file any claim with respect
to it.
2. On April 11, 2005 Roads filed a sworn reply (Reply). The Reply admitted that
$32,358.25 in retainage had been withheld but asserted in substance that it need
not pay that sum to Algar because the Department had not paid Roads that
amount. Roads assertion is without merit. Section 39F(1)(b) requires payment to
subcontractors of the “entire balance due” sixty-five days after completion of the
work less amounts retained by the awarding authority to complete incomplete
subcontract work. Here, there is no dispute concerning incomplete or
unsatisfactory work. It is more than 14 months since Algar completed the
subcontract work. Accordingly, the retainage withheld from Algar in the amount
of $32,358.25 is part of the entire balance due. See Bayer & Mingolla Indus. v.
Orlando Contracting Co., 6 Mass. App. Ct. 1, 3 (1978).
3. Kindly pay claimant $32,358.25 out of the next periodic, semi-final or final
estimate on the project if funds are available and deduct from payments due to
Roads in accordance with Section 39F(1)(g) and (f).
cc:
Algar Construction Corporation
40 Meadowbrook Road
Brockton, MA 02301
The Roads Corporation
241 Treble Cove Road
North Billerica, MA 01852
Deputy Chief Engineer
District Highway Director, District 3