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To:
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Date:
Re:
Secretary Jeffrey B. Mullan, MassDOW
Stephen H. Clark, Administrative Law Judge
April 8, 2010
Report and Recommendation
I am pleased to submit for your consideration and approval the attached report
and recommendation.
J. Tropeano, Inc. (Tropeano) seeks an equitable adjustment of
$96,837.57 in MassHighway contract #33279 (Contract) to
relocate 21 water utility services in Salem because of alleged
unforeseen site conditions.
On July 30, 2009, while its administrative appeal was pending,
Tropeano filed suit against the Commonwealth in Suffolk
Superior Court seeking $96,837.57 in contractual damages on a
different legal theory based on identical underlying facts. See
SUCV 09-3233-G.
Tropeano may not pursue the same claim in administrative
and judicial proceedings. Once a suit has been filed against
MassHighway the Attorney General has exclusive jurisdiction
to conduct the litigation. Because continuation of Tropeano's
administrative appeal would interfere with the Attorney
General's conduct of litigation in SUCV 09~3233-G,
Tropeano's appeal should be dismissed. See 6 Ope Atty. Gen.
1921, p.169; Attorney General v. Department of Public
Utilities, 342 Mass. 662 (1961).
I recommend that Tropeano's appeal be dismissed.
www.mass.gov/massdot
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INTRODUCTION
The appeal of J. Tropeano, Inc. (Tropeano) seeking an equitable adjustment of
$96,837.57 for work done under MassHighway 1 contract #33279 (Contract) should be
dismissed because Tropeano has filed an action in Superior Court against the
Commonwealth to litigate the same dispute. See SUCV 09-3233-G. Tropeano’s lawsuit
followed a ruling granting partial summary judgment in favor of MassHighway because
Tropeano did not timely file the required statutory notice under G.L. c.30, s.39N (Section
39N) on its unforeseen site condition claim. 2
Tropeano’s action in Superior Court seeks $96,837.57. It is grounded on facts
identical to those raised in its pending administrative appeal. The appeal should be
dismissed as only the Attorney General may conduct litigation related to Tropeano’s
claims arising from the Contract.
BACKGROUND
Tropeano’s dispute with MassHighway arose during work to reconstruct
Marlborough Road in Salem under the Contract, which was awarded May 9, 2003.
Tropeano sought an equitable adjustment in price under Section 39N because of an
1
On November 1, 2009, the Massachusetts Highway Department was reorganized as the Highway
Division of the Massachusetts Department of Transportation (MassHighway). See G.L. c. 6C, s.40.
2
The factual gravamen of Tropeano’s dispute is that MassHighway’s plans did not disclose the exact
locations of twenty-one water utility services beneath the roadway surface; that the city of Salem did not
(or could not) mark those locations; and that MassHighway personnel in the District had actual knowledge
of the costs Tropeano was incurring at the time it removed the unmarked services. In ruling on
MassHighway’s motion for summary judgment, I found as a matter of fact that MassHighway did not
“guarantee” the locations of the water services shown on the plans and ruled that Tropeano failed to give
written notice “as soon as possible” after it discovered the alleged unforeseen site conditions.
alleged unforeseen site condition. Tropeano argues that twenty-one water utility services
it removed and replaced were not correctly located on the Contract plans.
After the Engineer’s claims committee denied Tropeano’s claim on July 26, 2006,
it appealed. MassHighway then moved for summary judgment on the basis that
Tropeano had failed to give the statutory notice required by Section 39N and had thus
waived its rights to pursue the Section 39N remedy of an equitable adjustment. On
September 3, 2008 I found that Tropeano failed to give a notice “in writing” “as soon as
possible” after the discovery of the alleged unforeseen site condition when it filed its first
written claim on December 16, 2005, sixteen months after the last disputed utility service
location was found and more than twenty-four months after the first. See ALJ
Memorandum, attached.
Tropeano then moved to amend its statement of claim. On July 30, 2009, while
that motion was pending, Tropeano filed a complaint in the Superior Court alleging
“design errors” in the Contract, seeking $96,837.57 for (1) breach of contract and (2)
quantum meruit.
DISCUSSION
Because Tropeano’s action in SUCV 09-3233-G is duplicative of its
administrative appeal, the appeal should be dismissed. 3 Only the Attorney General may
now conduct litigation on Tropeano’s claims.
The Attorney General represents departments of the Commonwealth, including
MassHighway, when an action is filed in court. The Attorney General has exclusive
jurisdiction to appear for the Commonwealth’s departments “in all suits … in which the
3
In all Tropeano has advanced ten theories of recovery—initially an unforeseen site condition claim under
Section 39N; then seven additional theories first raised in a motion to amend its statement of claim on
appeal; and finally two additional theories (breach of contract and quantum meruit) in SUCV 09-3233-G.
2
commonwealth is a party or interested, or in which the official acts and doings of said
[department] … are called in question, in all the courts of the commonwealth….All such
suits and proceedings shall be prosecuted or defended by him under his direction.” G.L.
c. 12, s. 3. The Attorney General’s obligation has been construed to mean that, once a
lawsuit has been filed against the Commonwealth, she is vested with exclusive control
over the matter in ligation. See Attorney General v. Department of Public Utilities, 342
Mass. 662 (1961).
Only the Attorney General has the power to compromise or settle civil
proceedings in which a department of the Commonwealth is a party. See 6 Op. Atty.
Gen. 1921, p.169. See also Feeney v. Commonwealth, 373 Mass 359 (1977) (in the
exercise of his statutory and Constitutional powers, the Attorney General assumes
primary control over the conduct of litigation that involves the interest of the
Commonwealth, and in so doing he decides matters of legal policy normally reserved to a
client in the ordinary attorney-client relationship).
The Attorney General’s constitutional and statutory powers dictate that
Tropeano’s pending administrative appeal be dismissed. Otherwise actions taken
pursuing or defending the appeal would materially interfere with the Attorney General’s
functions, since she does not represent MassHighway in Tropeano’s administrative
appeal. Accordingly, once Tropeano has filed suit against the Commonwealth, the
exclusive statutory and constitutional authority of the Attorney General to defend
MassHighway requires dismissal of Tropeano’s administrative appeal.
Contractors filing appeals in the office of the Administrative Law Judge
understand that filing a parallel action in court will result in the immediate dismissal of
3
an administrative appeal. As stated in the report of the 20th Annual Conference on the
Massachusetts Construction Law (at page III-5):
It should be noted further that where a claim is asserted
in a court action, the MHD hearing officer … will refuse
to entertain such claim. Accordingly, no action can be
brought in court on any claim which is pending before the
MHD Hearing Officer or it will be immediately dismissed
by the MHD Hearing Officer.
Tropeano, by filing suit in SUCV09-3233-G, elected to pursue its claims arising
under the Contract in court.
RECOMMENDATION
The Secretary should dismiss Tropeano’s pending appeal.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: April ___, 2010
4
MEMORANDUM OF DECISION AND ORDER ON
MASSACHUSETTS HIGHWAY DEPARTMENT’S MOTION FOR
SUMMARY JUDGMENT
INTRODUCTION
MassHighway moved to dismiss the appeal of general contractor J. Tropeano, Inc.
(Tropeano) on a motion for summary judgment. Tropeano appealed from the claims
committee’s denial of its request for an equitable adjustment of $96,837 under G.L. c. 30,
s.39N (Section 39N) for work Tropeano did to repair or relocate 21 utility service
connections it found during the reconstruction of Marlborough Road in Salem.
MassHighway asserts that Tropeano’s equitable adjustment claim is barred
because it failed to make a “request” “in writing” “as soon as possible” after it found the
supposed differing site conditions. See Section 39N. 4 Tropeano opposes the motion
contending that it met the notice requirement of the statute because MassHighway had
actual knowledge of the differing site conditions and knew exactly what work Tropeano
did to remove old services and repair active services. For the reasons set forth below, I
find that partial summary judgment should be granted to MassHighway and will so
recommend in my final report to the Secretary.
BACKGROUND
The record provides the following factual background. Tropeano was the general
contractor in MassHighway contract #33279 (contract) for $1,817,467 for the
rehabilitation of Marlborough Road in Salem. The work involved excavation of the old
road, replacement of utility infrastructure, grading and repaving. The contract documents
disclosed approximate locations of water and sewer utility services connecting main lines
4
Section 39N is incorporated into the Standard Specifications as a matter of law and appears as
Subsection 4.04. See Section 39N (1st para).
5
to houses on either side of Marlborough Road, but did not purport to map accurate
locations. 5 The special provisions imposed on Tropeano the “necessity of making its
own investigation in order to assure that no damage [occurred] to existing structures,
water lines, drainage lines … and additional facilities….” Tropeano was to notify the
city “so that all the City utilities may be located.”
The special provision warned
Tropeano before it bid that the “accuracy and completeness” of the plans with respect to
the locations of “known utilities” was not “guaranteed.”
On October 20, 2003 Tropeano discovered the first “mis-location” of a utility
service connection; the last it found on September 1, 2004. In the ten intervening
months Tropeano moved or repaired many utility services, each of which presented
unique circumstances. 6 MassHighway’s resident engineer was present at the work site
daily and recorded the details of each “mis-location” in her project diary. MassHighway’s
resident engineer had actual knowledge of the site conditions where each utility service
was found and the specific work Tropeano did to remove, repair or protect the same.
5
The special provision provides in relevant part:
“The Contractor’s attention is directed to the necessity of making his own investigation in order to
assure that no damage to existing structures, water lines, drainage lines … and additional facilities will
occur”; “The Contractor shall … notify the City of Salem so that all the City utilities may be located and all
necessary permits may be obtained”; “The Contract Plans indicate the approximate location of known
utilities in the vicinity of the work. The accuracy and completeness of the information is not guaranteed”;
“It is the intent of these Special Provisions that the Contractor … will safeguard the utilities during
construction and shall assume liability for damage, relieving [Salem and MassHighway] from any
liability.”
6
Attached to the letter Tropeano wrote MassHighway on January 31, 2005 (see page 3 infra) were
descriptions of the “differing site conditions” it encountered between October 20, 2003 and September 1,
2004. Of the 21 instances listed, 14 were water service interruptions to houses, 2 involved excavation
around an unmarked water service and a 6” hydrant, 1 involved a water main interruption, 1 a sewer force
main interruption, and 1 a relocation of a water service. Tropeano implies that second and third utility
services were encountered at many locations. The resident engineer’s notes record only 2 cases where a
second service was encountered and none of a third service.
6
Tropeano did not request an equitable adjustment to the contract price “in
writing” on or near the dates when it discovered any of the utility service “mis-locations,”
with one exception. 7
On January 31, 2005 Tropeano first filed a written notice that
might be construed as a request for an equitable adjustment in a claim for extra work.
That writing was made fourteen months after the first differing site condition incident
(October 20, 2003) and five months after the last (September 1, 2004). Tropeano’s
January 31, 2005 claim specified 21 incidents and sought $96,837.57 in extra work
because of “existing subsurface utilities that were unknown in their locations.” Tropeano
claimed actual costs for removing or protecting utilities and delay costs.
On March 3, 2005 District 4 denied Tropeano’s claim citing the special provisions
in the contract. On March 14, 2005, Tropeano asked MassHighway by letter to
reconsider its denial stating that it had notified the city of Salem “prior to all excavation”
and that the city had failed to provide any further direction. Tropeano asserted that the
city had failed to mark subsurface utilities and thus Tropeano had “no reasonable
expectation that there would be numerous active water services to a single family
dwelling.” District 4 reviewed and denied the request for reconsideration. It then
forwarded the letter to the claims committee, which had the denied January 31, 2005
claim under advisement.
On December 16, 2005 Tropeano presented a “new” claim to MassHighway
relating to the removal and repair of the same 21 utility services. The “new” claim was
7
Tropeano apparently made a request for extra work related to an incident on June 24, 2004 that
MassHighway agreed was appropriate. Tropeano provided an estimate of labor and material costs. On
December 23, 2004, Tropeano certified to MassHighway that it had performed extra work of $31,870.91.
On January 11, 2005, MassHighway approved the extra work order. On January 19, 2005, MassHighway
wrote the city of Salem that it was responsible to reimburse MassHighway the $31,870.91 it paid Tropeano
for extra work.
7
expressly made under Subsection 4.04 (Changed Conditions). See supra p. 1, n. 1. The
December 16, 2005 claim was presented to MassHighway 801 days after the first water
service interruption (October 20, 2003) and 486 after the last utility service interruption
incident (September 1, 2004). 8
The District rejected the December 16, 2005 “new” claim and forwarded it to the
claims committee, which still had the initial January 25, 2005 claim (and its
reconsideration) under advisement. The claims committee denied all Tropeano’s claims
on July 26, 2006. Tropeano appealed the denial to this office within 30 days and filed a
statement of claim here on September 14, 2006.
DISCUSSION
Summary Judgment
Summary judgment is appropriate when there are no genuine issues of material
fact and the moving is entitled to judgment as a matter of law. See Cassesso v.
Commissioner of Correction, 390 Mass. 419, 422 (1983). Here MassHighway met its
burden of demonstrating the absence of a triable issue of fact under Section 39N, see
Pederson v. Time, Inc. 404 Mass. 14, 17 (1989), by affidavit testimony affirming that
Tropeano did not give it notice “in writing” “as soon as possible” after Tropeano
discovered any claimed differing site condition. Tropeano concedes in its brief that it
never requested an equitable adjustment “in writing” under Section 39N. But see ante, n.
8
Tropeano’s “new” claim of December 16, 2005 [received December 30, 2005] “present[s] the following
claim for extra work in accordance with [Sub]section 4.04 Changed Conditions of the contract documents.”
The letter is part of the record here because it is attached to Tropeano’s Statement of Claim. I think it
constitutes a conforming request for an equitable adjustment in the contract price “in writing” under
Section 39N. It states: “We believe the actual subsurface conditions encountered at the site differ
substantially than those represented on the contract drawings and differ from those normally occurring.”
The letter was presented to MassHighway some 26 months after the first “undisclosed” water service was
found (October 20, 2003) and some 16 months after the last (September 1, 2004). Neither party refers to
the December 16, 2005 letter in its papers.
8
5. In ruling on the motion I resolve factual conflicts and draw all inferences in favor of
Tropeano, the non-moving party here. See Willitts v. Roman Catholic Archbishop of
Boston, 411 Mass. 202, 203 (1991).
Section 39N
At issue here is the meaning of the notice provision of Section 39N. The statute
requires that a “request” for an equitable adjustment “shall be in writing and shall be
delivered to the other party as soon as possible after such [differing site] conditions are
discovered.”
Section 39N provides that a “request” may be made by either the awarding
authority or contractor since “an equitable adjustment in the contract price” may be made
in favor of either. The request “shall be” “delivered” to the other party after “the
contractor or the awarding authority discovers that the actual subsurface or latent physical
conditions encountered at the site differ substantially or materially from those shown on
the plans or indicated in the contract documents….” The government then “shall make
an investigation of such physical conditions” to determine how site conditions differ from
plans or how construction methods might have to be changed. The request may be for
either an increase or decrease of the contract price. 9
9
Section 39N provides in pertinent part:
If, during the progress of the work, the contractor or the awarding authority discovers that the
actual subsurface or latent physical conditions encountered at the site differ substantially or materially from
those shown on the plans or indicated in the contract documents either the contractor or the contracting
authority may request an equitable adjustment in the contract price of the contract applying to work
affected by the differing site conditions. A request for such an [equitable] adjustment shall be in writing
and shall be delivered by the party making such claim to the other party as soon as possible after such
conditions are discovered. Upon the receipt of such a claim from a contractor, or upon its own initiative,
the contracting authority shall make an investigation of such physical conditions, and, if they differ
substantially or materially from those shown on the plans or indicated in the contract documents… and are
of such a nature as to cause an increase or decrease in the costs of performance of the work or a change in
the construction methods required … the contracting authority shall make an equitable adjustment in the
contract price and the contract shall be modified in writing accordingly.
9
The principal guide to interpret the notice provision is the language of Section
39N itself. See Nationwide Mut. Ins. Co. v. Commissioner of Ins., 397 Mass. 416, 420
(1986). In reading the statute, effect must be given to all its provisions, so that none will
be superfluous. See Devaney v. Watertown, 13 Mass. App. Ct. 927, 928 (1982).
Legislative intent must be understood in light of the statute as a whole. See Pereira v.
New England LNG Co., 364 Mass. 109, 115 (1973). A proper construction will not
defeat the statute’s utility. See Simon v. Solomon, 385 Mass. 91, 100 (1982).
The terms of Section 39N show that the “receipt” of a request “in writing”
triggers a series of acts mandated by the Legislature: investigation, fact finding,
comparison of plans to conditions, possible change in construction methods, the
determination of an appropriate “equitable adjustment” to the contract (up or down) and,
finally, a contract modification “in writing accordingly.” One legislative objective is
that the government be able to investigate a purported “differing site condition”
immediately after discovery—before it is disturbed. This is manifest since the written
notice “shall” be delivered “as soon as possible.” The requirement that a “writing” be
“delivered” to the other party assures that each party knows a request has been made for
an “equitable adjustment” under Section 39N, not for some other remedy. The order of
the mandated steps evinces intent that only after investigation and findings may the
awarding authority exercise the extraordinary statutory power to “modify” the contract
price—either up or down. The final step—the modification in the “contract price” “in
writing”--mirrors the first step, an unambiguous notice “in writing.”
The requirement in Section 39N that a “request” be made “as soon as possible”
should be construed according to its plain and ordinary meaning. See Commonwealth v.
10
Gove, 366 Mass. 351, 354-355 (1974). In the context of Section 39N’s scheme, “as soon
as” intends that the “writing” be delivered immediately, right away, as soon as may be.
That is because the start of the investigation and the need for findings is time sensitive.
When delivery is “possible” depends on the nature of the work and the type of differing
site condition. See e.g. Sutton Corp. v. Metropolitan District Com’n, 423 Mass. 200, 206
(1996) (contractor found approved sand drain installation method not possible due to
unexpected subsurface condition; then “ceased operations [on April 24th] and notified
MDC by letter [on April 27th]”).
It is settled law that “the contractor must follow the procedures spelled out in the
contract … before unilaterally accruing expenses to be pursued later” through claims.
Glynn v. Gloucester, 21 Mass. App. Ct. 390, 395 (1986) quoting Glynn v. Gloucester, 9
Mass. App. Ct. 454, 460 (1980) ; Frederico Co. v. New Bedford Redev. Authy, 11 Mass.
App. Ct. 248, 253 (1981) (claim “barred” if not made timely in accordance with contract
procedures). Notice requirements must be strictly followed. See Marinucci v.
Commonwealth, 354 Mass. 141, 145 (1968) (failure to timely submit claim in writing and
itemized statement resulted in forfeiture of claim). Massachusetts appellate courts strictly
construe the written notice requirements throughout Chapter 30. See e.g. Reynolds Bros.
Inc. v. Commonwealth, 412 Mass 1 (1992) (only if awarding authority orders work
stopped in writing may contractor seek equitable adjustment for suspensions and delay
under G.L. c.30, s.39O); Glynn v. City of Gloucester, 9 Mass. App. Ct. 454, 461 (1980)
(no recovery for work done in deviation from plans unless contractor shows “prior”
“written approval” required by G.L. c.30, s. 39I).
11
Tropeano did not follow the procedures in the contract or set forth in Section 39N.
Instead of notifying MassHighway in writing of differing site conditions and allowing the
statutory process to unfold, Tropeano proceeded as if everything were “normal,”
unilaterally (and secretly) incurring costs it would later claim. Its actions frustrated the
fundamental purpose of Section 39N as MassHighway could not conduct inspections of
the supposed differing site conditions as soon as possible after they were discovered.
The record shows without doubt that Tropeano failed to request an equitable
adjustment in writing as soon as possible after it discovered supposed differing site
conditions. At best, Tropeano’s January 31, 2005 “request,” if assumed conforming in
substance, was made five months after the last incident and fourteen months after the
first. Its December 16, 2005 new “request,” which appears to be a conforming Section
39N notice in substance, was delivered to MassHighway more than two years after the
first differing site condition was found.
Tropeano argues that the procedural dictates of Section 39N were satisfied. It
contends (i) that the “writing” requirement was met because the resident engineer made
written “notations” in her diary; and (ii) that the timing requirement--“as soon as
possible”--was met because the resident engineer at the time had actual knowledge of the
site conditions and what work Tropeano performed on each utility service.
Tropeano fundamentally misapprehends Section 39N. Tropeano’s argument, if
correct, would frustrate—even vitiate—the statutory scheme, which plainly intends nearcontemporaneous written notice, investigation and findings. Notations by the resident
engineer in her diary can not constitute a timely written request of the contractor because
that construction would render meaningless the requirement that a “request” be
12
“delivered by the party making the claim” to the other party. 10
A diary entry made for
another purpose, even if it does show actual notice, can not satisfy the timing
requirement. Since the diary entry is not a notice “in writing,” the clock never starts to
measure whether the contractor delivered a notice “in writing” “as soon as possible.”
I conclude that Tropeano did not give MassHighway notice “in writing” as soon
as possible after finding differing site conditions. It did not comply with the procedural
requirements of Section 39N. Accordingly, Tropeano waived any Section 39N claim it
might have asserted. See Skopek Bros., Inc. v. Webster Housing Authority, 11 Mass.
App. Ct. 947, 947 (1981) (rescript) (request submitted 16 months after differing condition
discovered non-conforming); Lawrence-Lynch Corp. v. Dept of Environmental
Management, 392 Mass. 681, 396 (1986) (failure to follow procedures to claim equitable
adjustment “precludes recovery”). 11
10
Tropeano cites Sutton Corp. v. Metropolitan District Commission, 423 Mass. 200, 208 (1996) (Sutton)
for the proposition that “if the state agency is aware throughout the project of the differing site conditions,
then the state agency must demonstrate some prejudice as a result of the contractor’s failure to provide
written notice.” (Tropeano’s emphasis). The citation is incorrect. In Sutton the court found that the
contractor had in fact supplied a timely written notice under Section 39N. See 423 Mass. at 205. With
respect to the MDC’s contractual (not statutory) requirement that an itemized statement of damages be filed
upon request, the court noted that the MDC apparently never requested an itemized statement but that there
was no evidence it “was prejudiced in any way by the lack of an itemized statement of damages.” 423
Mass. at 208. Mere knowledge that a contractor is incurring additional costs will not support a finding that
an agency waived strict compliance of the contract’s provisions. See Glynn v. Gloucester, 9 Mass. App.
Ct. 454, 462 n.10 (1980); Skopek Bros., Inc. v. Webster Housing Authy., 11 Mass. App. Ct. 947, 947
(1981). Tropeano’s reliance on cases construing the notice requirement of the Massachusetts Tort Claims
Act, G.L. c.258, s. 4, is unavailing. In Lopez v. Lynn Housing Authority, 440 Mass. 1029 (2003), and
similar cases Tropeano cites, timely written notice was given but to the wrong official. The court held the
notice provision satisfied where the proper official, the chief executive officer, had actual knowledge of the
claim and the claim had been “investigated, evaluated and eventually denied.” 440 Mass. at 1030. Here,
Section 39N was not satisfied: no official received written notice; and MassHighway had no opportunity to
investigate the differing site conditions when purportedly discovered.
11
Tropeano proffers affidavit testimony to support its contention that a genuine issue of fact remains to be
decided at a hearing—namely, whether MassHighway “waived or excused” compliance with the “writing”
requirement of Section 39N through its actions. A waiver must be based on “clear, decisive, and
unequivocal conduct on the part of an authorized representative of the agency.” Glynn v. Gloucester, 9
Mass. App. Ct. 454, 462 (1980). No facts in Tropeano’s affidavit could support a finding of waiver here.
13
Additional Claims
Tropeano argues that even if summary judgment is granted to MassHighway it
may assert other viable theories of recovery under: (1) Subsection 2.03 (failure of
MassHighway to prepare adequate plans and specifications; (2) Subsection 4.03 (extra
work); Subsection 4.06 (increased quantities); and (4) Subsection 8.05 (discretionary
relief for delay). The interests of substantial justice dictate that Tropeano should be able
to litigate any claim it properly filed at the district and it should at least be permitted to
move to amend its statement of claim.
ORDER
Partial summary judgment should be granted to MassHighway on Tropeano’s
Section 39N claim and my report to the Secretary will so recommend.
Tropeano shall have 30 days from this date to move to amend its statement of
claim. It shall attach to its motion the documents that demonstrate that it in fact
properly filed unaddressed claims at the district under Subsection 7.16 and that such
claims were before the claims committee. MassHighway may respond to Tropeano’s
motion to amend within 30 days of filing.
____________________
Stephen H. Clark
Administrative Law Judge
_________
Dated
14