TO:
FROM:
Lina Swan, Director of Fiscal Operations
Stephen H. Clark, Administrative Law Judge
DATE: August 17, 2005
RE: Request for Direct Payment
Barrile (Barrile)
(Assabet Trail)
1.
I have reviewed the direct payment demand (Demand) by Barrile dated July 11,
2005 and sent to the Department certified mail on July 11, 2005 and received July
13, 2005. For the reasons set forth below, I find the Demand as filed does not comply with the requirements of G.L. c.30, s.39F (Section 39F) and should be rejected.
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2.
Sworn Statement: Section 39F(1)(d) requires that a demand “shall be by a sworn statement….” Barrile’s Demand consists of a two page letter at the end of which
Mr. Costello, “authorized agent” of Barrile, states that “the above statements” are
“signed under the pains of perjury.” The Demand recites that Barrile entered into a subcontract with S&R on January 20, 2004. It refers to an “attached claim
(counts I through V collectively) addressed to North American Specialty
Insurance Company,” (NASIC), which I understand by the context to be the surety on S&R’s payment and performance bond for the general contract. The
Demand states that “the attached claim” is “attached hereto and incorporated herein by reference and is also tendered to directly [sic]” the Department and the
Commonwealth and “is part of this demand in its entirely.” The referenced
“attached claim” (Claim Letter) dated July 11, 2005 consists of a 19 page singlespaced typewritten letter addressed to the claims department of NASIC and copied to both S&R and the Department by certified mail. Mr. Costello signed the Claim Letter. The Claim Letter is not sworn. I find that the Demand cannot and does not incorporate the unsworn 19 page unsworn Claim Letter.
3.
Detailed Breakdown: Section 39F requires that a “demand shall contain a detailed breakdown of the balance due under the subcontract.” Barrile’s Demand here recites that it has submitted “requests for periodic payments for base
[sub]contract work and equitable adjustments directly to S&R as general contractor totaling $1,382,378.22….” It continues by stating the S&R and MHD paid to Barrile “$528,510.36 leaving a balance due of $853,876.86 in which [sic]
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Two prior demands of Barrile under this general contract were rejected, on February 23, 2005 and March
18, 2005.

the general contractor has failed to pay.” It continues that the Demand is a formal written notice to you, MHD of our failure to receive such payments for work that was and continues to be accepted and substantially complete … a breakdown of which is as follows: Payment now due: … $853, 876.86.” Finally, the Demand asks the Department to “make direct payment to Barrile in accord with Counts I,
II, III and IV of the [Claim Letter] ….” The assertion in the Demand—without more—that $855,876.86 is owed Barrile by S&R is not a proper statement of a purported “balance due” in compliance with Section 39F(1)(d). The lump sum demanded is not broken down or detailed in any way. A detailed statement under
Section 39F must, at a minimum, be framed in such a way that the general contractor and the awarding authority can determine the critical financial components of the total demand. This Barrile has failed to do.
4.
Claims: The Demand on its face includes undifferentiated amounts for claims, styled “equitable adjustments.” However, mere claims are beyond the purview of
Section 39F. See Cardi Corporation v. Sutton Corporation et als, Superior Court
C.A. No. 95-6027-D (Slip opinion, October 3, 1996) (amounts in demand not yet approved for payment by the awarding authority do not fall within the scope of s.39F). I also reject the Demand on the ground that it fails to separate the amounts presently “due” from S&R from the mere inchoate claims it also asserts.
5.
For all these reasons the Demand must be rejected.
6.
Accordingly, take no further action on this demand. cc:
Anthony R. Barrile, President
Barrile Corporation
896 Boston Post Road
Marlborough, MA 01752
S&R Contracting Corporation
706 Broadway Street
Lowell, MA 01854
Deputy Chief Engineer
District Highway Director, District 3
Commissioner