MEMORANDUM OF DECISION
ON
TROPEANO’S MOTION TO AMEND STATEMENT OF CLAIM
INTRODUCTION
J. Tropeano, Inc. (Tropeano) moves to amend its statement of claim to add seven
new claims. Its motion comes after a ruling granting MassHighway’s motion for
summary judgment on Tropeano’s differing site condition requesting an equitable
adjustment of $96,837 claim under Section 39N on the ground that Tropeano failed to
give the required statutory notice “in writing” within the time permitted by law. See
Memorandum of Decision, September 3, 2008. Because Tropeano asserted in its brief
that it had additional theories of recovery, 1 I allowed Tropeano an opportunity to move to
amend its statement of claim provided it “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.”
Tropeano’s motion seeks to raise on appeal seven new claims or legal theories
that would, if successful, result in payment to it of $96,837, the same amount it originally
sought by request for an equitable adjustment. 2 It says its motion to amend should be
granted since (1) MassHighway had actual knowledge of a dispute with Tropeano; (2)
Tropeano gave the required written notice by a letter dated December 16, 2005 to the
district highway director; (3) motions to amend are to be liberally construed; and (4)
MassHighway would not be prejudiced if Tropeano’s amendment is allowed.
1
Specifically, Tropeano stated it could pursue claims under Subsection 2.03 (plans and specifications);
Subsection 4.03 (extra work); Subsection 4.06 (increased quantities) and Subsection 8.05 (discretionary
relief of delay).
2
The claims and theories it moves to add are (1) Subsection 2.03 (plans and specifications); (2)
Subsection 4.03 (extra work); (3) Subsection 4.04 (changed conditions); (4) Subsection 4.06 (increased
quantities); (5) Subsection 8.05 (delay or suspension of work): (6) Subsection 9.03 (payment for extra
work); (7) G.L. c.30, s. 39M (payment); and (8) G.L. c. 30, s.39O (suspension or delay in work).
MassHighway opposes Tropeano because (1) Tropeano failed to follow
Subsection 7.16 of the standard provisions of the contract (Subsection 7.16), which
governs the filing and prosecution of claims; (2) none of the new theories were brought
before and finally determined in writing by the Engineer, a condition precedent to an
appeal to the Administrative Law Judge under Subsection 7.16; (3) Tropeano waived any
new claim because it failed to give timely notice under Subsection 7.16; and (4)
MassHighway would in fact be prejudiced if Tropeano’s motion were allowed.
BACKGROUND
Tropeano’s dispute with MassHighway arises under contract #33279 for work to
reconstruct Marlborough Road in Salem. Twenty-one utility service connections had to
be moved, work which Tropeano believed was necessitated by unforeseen site conditions.
It made a written request for an equitable adjustment on December 16, 2005, which was
sixteen months after the last disputed utility service location was found and more than
two years after the discovery of the first. See Memorandum of September 3, 2008.
The factual gravamen of Tropeano’s unforeseen site condition claim was that
MassHighway’s plans did not disclose the exact locations of the 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 moved the twenty-one utility services.
Tropeano argued that these facts allowed it to pursue a request for an equitable
adjustment even though Section 39N required that written notice be given MassHighway
“as soon as possible” after the discovery an unforeseen site condition. I ruled that
Tropeano’s request was not given in writing “as soon as possible,” did not comply with
2
Section 39N and, accordingly, Tropeano had waived its rights to an equitable adjustment.
See Memorandum of September 3, 2008. 3
DISCUSSION
Subsection 7.16 sets forth the procedures contractors must follow to make claims
and appeal a final administrative written determination of a claim. It provides that a
claim “must be made in writing to the Engineer within one week after the beginning of
any work or the sustaining of any damage” on account of an act or omission of
MassHighway. It also provides that the “Engineer shall determine” the extent of any
damage and notify the contractor in writing. The written determination of the Engineer
may be appealed to the Administrative Law Judge. See subsection 7.16.
Failure to timely file a claim within the time permitted by the contract constitutes
a waiver of the rights granted by the contract. See Subsection 7.16. Waived claims can
not be pursued. See Frederico Co. v. New Bedford Redev. Authy, 11 Mass. App. Ct.
248, 253 (1981); Marinucci v. Commonwealth, 354 Mass. 141, 145 (1968).
Tropeano’s motion to amend its statement of claim must be denied. None of the
seven new claims it now seeks to pursue was made in writing to the Engineer within “one
week” of sustaining the damage for which it now seeks to recover. Nor did Tropeano
have any right to raise seven new claims on its appeal to this office since the Engineer
never made a written determination of any of these claims or theories.
Tropeano has the burden to show it has met all procedural requirements necessary
to prosecute an appeal. Tropeano points to its December 16, 2005 letter to
3
I also found that MassHighway’s contract did not purport to disclose the utility service locations, but, to
the contrary, expressly placed the burden of finding the exact locations of utility services on Tropeano. The
special provisions warned Tropeano that the “accuracy and completeness” of the plans with respect to the
locations of “known utilities” was not “guaranteed.”
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MassHighway to show that it complied with the notice requirements of Subsection 7.16.
However, that letter is entirely silent about any facts or theories relating in any way to the
new claims Tropeano now seeks to pursue. There is no language in the letter that can be
construed to refer to defective plans and specifications, increased quantities, delay or
suspension in the work or to any of its other new claims. The only claim the letter
purports to raise is a “claim for extra work in accordance with [Sub]section 4.04 Changed
Conditions.” I find that the December 15, 2005 letter does not give notice of a claim
under any theory other than “changed conditions.” 4
The December 16, 2005 letter did not timely raise any claim under Subsection
7.16. As the contract work had been completed for more than a year on December 16,
2005, Tropeano’s letter could not give timely written notice within “one week” of any
MassHighway “act or omission” causing Tropeano injury or damage. 5 See Subsection
7.16. Tropeano did not adhere to other notice provisions of the contract or the general
laws where such notice provisions might arguably apply. 6 MassHighway correctly
points out that Tropeano presented no new evidence to show the timeliness of any filing
for any of the seven new claims and never demonstrated that any of the seven new claims
4
Although Tropeano does refer to “extra work” in the December 16, 2005 letter the reference was part of
its request for an equitable adjustment under Subsection 4.04, which calculates the amount of an equitable
adjustment in same manner that the amount of extra work is determined under Subsection 9.03. Compare
Subsections 4.04 and 9.03. See Sutton Corp. v. Metropolitan District Com’n, 423 Mass. 200 (1996).
5
Tropeano attaches a letter dated January 23, 2006 from the district highway director in support of its
motion. That letter refers to Tropeano’s December 16, 2005 letter relating to unforeseen site conditions. A
January 31, 2005 letter from Tropeano to MassHighway requesting money for “extra work” that “surrounds
[sic] the work required October 2003 thru October 2004 to repair, replace or remove existing subsurface
utilities that were unknown in their locations” was filed 5 months after the work was done.
6
A claim for delay under Subsection 8.05 requires prior notice under Subsection 8.10, which Tropeano
failed to give. Tropeano did not give written notice under Sections 39N or 39O of G.L. c.30. Tropeano
never identified the unit price item that would permit an adjustment for increased quantities pursuant to
Subsection 4.06. Tropeano did not timely request extra work in the manner provided by the contract.
4
were determined “in writing” by the Engineer’s claims committee. I find that Tropeano
provided no documentation to support its contention that it filed a timely claim with
MassHighway with respect to any of the seven new claims. I also find that the Engineer
made no final written determination on any of such purported claims.
Tropeano’s failure to timely file a claim within the time permitted by the contract
constitutes a waiver of rights and a forfeiture of claims that could have been raised. See
Subsection 7.16; Marinucci v. Commonwealth, 354 Mass. 141, 145 (1968) (failure to
timely submit claim in writing and itemized statement resulted in forfeiture).
The fact that MassHighway had “actual notice” of Tropeano’s dispute is beside
the point. There can be no recovery for work done in deviation from plans unless a
contractor shows it obtained “prior” “written approval” of the awarding authority. See
G.L. c.30, s. 39I; Glynn v. City of Gloucester, 9 Mass. App. Ct. 454, 461 (1980). The
contract provides a specific procedure to make claims. By failing to follow the
provisions of Subsection 7.16 Tropeano waived any rights it might have asserted. See
Subsection 7.16; Glynn v. Gloucester, 21 Mass. App. Ct. 390, 395 (1986) quoting Glynn
v. Gloucester, 9 Mass. App. Ct. 454, 460 (1980). 7
7
Tropeano argues that the liberal standards for amending complaints in superior court under the civil rules
should apply here. Rule 15 of the Massachusetts Rules of Civil Procedure (Rule 15) does not apply to
administrative proceedings. To apply the standards set forth in Rule 15 would effectively void Subsection
7.16 of the contract. Even if Rule 15 did apply Tropeano would not be entitled to relief. See Castellucci v.
United States Fidelity & Guar. Co., 372 Mass. 288, 289-290 (1977) (relief denied where the record shows
“undue delay, bad faith or dilatory motive on the part of the movant, [or] … undue prejudice to the
opposing party … or futility….”). Allowing the motion would prejudice MassHighway since it would not
have had the opportunity the contract grants it to make a contemporaneous investigation of facts existing at
the time the purported claims arose. Tropeano fails to show that any of its new claims have merit; but
MassHighway demonstrates why litigating each of the seven new claims would be futile on the merits. See
MassHighway Memorandum in Support of its Opposition pp. 5-8.
5
CONCLUSION
Tropeano’s contention that it may for the first time raise any claim or theory of
recovery on appeal without first demonstrating that it followed the procedures set forth in
Subsection 7.16 of the contract is without merit. Tropeano’s motion to amend its
statement of claim is denied. Because Tropeano’s claim for unforeseen site conditions
was denied on September 24, 2008 there no longer exists any ground for Tropeano’s
appeal. Accordingly, Tropeano’s appeal should be dismissed.
____________________
Stephen H. Clark
Administrative Law Judge
_________
Dated
6