TO:
FROM:
DATE:
RE:
Lina Swan, Director of Fiscal Operations
Stephen H. Clark, Administrative Law Judge
September 23, 2005
Request for Direct Payment Under G.L. c.30, S.39F
Claimant:
Contractor:
Contract #
City/Town:
Amount:
PT Corporation (PT)
Modern Continental Construction Co. Inc. (MCC)
Contract #32153 [CO9C2]
Boston (CA/T)
$103,826.34
1. PT re-filed this direct payment demand (Demand) on September 1, 2005
following the rejection of its earlier demand on August 17, 2005. As with the
previous demand PT appears to have met the formal requirements of G.L. c. 30,
s.39F (Section 39F). MCC failed to file a sworn reply within ten days. See
Section 39F(1)(d).
2. Section 39F requires that a demand include “a statement of the status of
completion of the subcontract work.” See Section 39F(1)(d). Subcontractors may
only make demands for direct payment with respect to general contracts awarded
pursuant to G.L. c.30 upon “substantial completion” of the subcontract. 1 Here,
the Demand states “PT … has substantially completed It’s [sic] work on or about
June 15, 2005 referenced [sic] project _ [sic] for work completed through June 15,
2005.” I do not understand this sentence to mean that PT swears under oath that
all its subcontract work has been completed. Paragraph 6 of the Demand states
“The work on this section of the contract has been substantially completed as of
June 15, 2005.” I do not construe that sentence to mean that PT has sworn under
oath that it has substantially completed all its subcontract work. There is no
showing that the subcontract work has been substantially completed.
3. Section 39F requires that a demand “contain a detailed breakdown of the balance
due under the subcontract.” See Section 39F(1)(d). PT purports to meet this
requirement in paragraph 5 of its Demand, which states
1
Section 39F distinguishes between subcontractor demands made with respect to general contracts
awarded under G.L. c. 30 and those awarded under G.L. c. 149. With respect to a general contract awarded
under G. L. c. 149, a subcontractor is authorized to make a direct payment demand after substantial
completion of subcontract work and after a general contractor receives a periodic payment from the
awarding authority with respect to subcontract work in progress, where the general contractor has failed to
pass through payment for the account of the subcontractor. See Section 39F(1)(1st para) in combination
with Section 39F(1)(i) and Section 39F(1)(a). By contrast, with respect to a general contract awarded
under G.L. c.30, a subcontractor is only authorized to make a direct payment demand upon “substantial
completion of the subcontract work.” See Section 39F(1)(1st para) in combination with Section 39F(1)(i)
and Section 39F(1)(d).
The original subcontract value was $5,198,875.00. The total
subcontract value is $5,317,874.95[.] Total due to PT for the
above mentioned work at this time is $103,826.95 for partially paid
item #722.876. (Emphasis supplied.)
4. The Demand does not provide any further “detailed breakdown” in its sworn
statement.2 Instead, it attaches voluminous documents to its Demand, perhaps
with the expectation that the Department itself will ferret out the precise data from
which a proper “detailed breakdown” could be pieced together. Section 39F
places upon the subcontractor the burden to present a coherent breakdown; it is
PT not the awarding authority that must discharge this task. I find that PT has not
provided a sufficient “detailed breakdown of the balance due here.
5. PT Demand is rejected. Take no further action on this Demand.
cc:
PT Corporation
480 Broadway
Lynnfield, MA 01940
Modern Continental Construction Company, Inc.
600 Memorial Drive
Cambridge, MA 02139
District Highway Director, District 4
Deputy Chief Engineer, Construction
Marie T. Breen, Esq.
Commissioner
2
I note that $5,317,874.95 minus $5,198,875.00 = $118,999.95. Nothing in the detailed statement shows
how the amount demanded--$103,826.34—was derived.
2