To:
Secretary Daniel A. Grabauskas, EOT
Through:
Commissioner John Cogliano, MHD
From:
Stephen H. Clark, Administrative Law Judge \~
Date:
September 30, 2004
Re:
~r;)I:'
ReportandRecomme~d1d~~~
I am pleased to submit for your consideration and approval the attached report
and recommendation.
Tbe pending administrative claim of Renz Painting, Inc. (Renz)
arising from MHD contract #97416 should be dismissed
beeause Renz has filed an action in Superior Court to litigate
the same claim and only the Attorney General may now
conduct the litigation ofRenz's claim.
Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3913' (611) 913-1800
eo
To:
Secretary Daniel A. Grabauskas, EOT
Through:
Commissioner John
From:
··
. LaW
Stephen H. Clark, AdmiDistrative
Date:
September 30, 2004
Re:
Report and Recommendation
Cogliano~ MHO
~~ ...
Judf.y~
I am please to submit for your consideration and approval the attaehed report and
recommendation.
The pellding admlDiJtrative claim of Reuz PaiDtiDg, Inc. (ReDZ)
orising from MHD CODtract 1197426 should he dismissed
because ReDZ .... med u actioD In Saperior Coart to litigate
tile lame claim aad Daly tile Attoraey GeDeral may ao..
CODduct tile litigadoD ofRouz'. daIm.
.
J
Massachusetts Highway Department· Ten Park Plaza, 8oston, MA 02116-3973 • (617) 973-7800
,.. STATEMENT OF THE APPEAL
Renz Painting, Inc. (Renz) appealed from the adverse decision of the claims
committee of the Massachusetts Highway Department (Department), which refused to
hear its claim for contract termination expenses of $13,670.65 because Renz did not
submit its claim in the format prescribed by Section 7.16 of the Department’s 1995
Standard Specifications. As set forth in its Statement of Claim, Renz was the low bidder
on Department contract #97426 (Contract), which was awarded to Renz on October 27,
1997.
Renz’s appeal also includes alleged damages arising from its bid on another
Department contract. On March 11, 1997 Renz was the low bidder on a contract for
Department Project P-46-4 (Lowell). The Department never awarded a contract to Renz;
it cancelled Project P-46-4 on August 19, 1999.
Renz’s Statement of Claim was filed in the Office of the Administrative Law
Judge on May 12, 2004. No pre-hearing conference was held and no hearing was
conducted.
On September 2, 2004 Renz filed a complaint in Superior Court, SUCV20043919, asserting claims identical to the appeals pending in this office. See Complaint,
Count IV, seeking $13,670.65.
DISCUSSION
The question presented is whether Renz’s pending administrative appeal arising
under Contract #97426 should be dismissed because Renz has filed an action in the
Superior Court seeking relief on an identical claim. I conclude that Renz’s administrative
appeal in the Department should be dismissed. Any action taken by the Department in
the hearing or deciding Renz’s pending administrative appeal will conflict with the
functions of the Attorney General. As a matter of policy, the Department should not hear
and decide appeals that could even potentially interfere with the disposition of identical
or related actions in court.
The Attorney General has exclusive jurisdiction to appear for the Department “in
all suits … in which the 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 or under his direction.” G.L. c. 12, s.3. In the exercise of his statutory and
Constitutional powers, the Attorney General assumes primary control over the conduct of
litigation that involves the interests of the Commonwealth; under his powers in so doing
he decides matters of legal policy normally reserved to a client in the ordinary attorneyclient relationship. See Feeney v. Commonwealth, 373 Mass. 359 (1977). The Attorney
General has the incidental power to compromise or settle matters in which the
commonwealth is a party or interested. See 6 Op. Atty. Gen. 1921, p. 169. The
Department, through proceedings before its Administrative Law Judge, should refrain
from any action that could even potentially interfere with the Attorney General’s conduct
of identical or related litigation.
Renz has filed suit in Superior Court against the Department on a claim identical
to its pending appeal in this office. Because of the exclusive powers of the Attorney
General to conduct litigation filed against the Department, any hearing or decision on
Renz’s identical pending administrative appeal will necessarily conflict with the Attorney
General’s exclusive statutory and constitutional authority.
2
Practitioners before the office of the administrative law judge understand that the
filing of a court action results in the dismissal of a pending administrative appeals. With
respect to the Department, the report of the “20th Annual Conference on Massachusetts
Construction Law” states (at page III-5):
It should be noted further that wherever 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 be dismissed by the MHD Hearing Officer.
Accordingly, Renz’s appeal under Contract #97426 should be dismissed.
RECOMMENDATION
The Commissioner should dismiss Renz pending appeal arising from Contract
#97426.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: September 30, 2004
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