Bonacorso Construction Corp. v. Commonwealth
Bonacorso Construction Corp. v. Commonwealth
Opinion of the Court
Since the decisions in Reynolds Bros., Inc. v. Commonwealth, 412 Mass. 1, 6 (1992), and Sutton Corp. v. Commonwealth, 412 Mass. 1003, 1004-1006 (1992), it has been understood that G. L. c. 30, § 390,
BCC had entered into a contract with the DPW to reconstruct two bridges over Interstate Route 93 in Reading. Under the contract, construction was to commence March 17, 1987, and to conclude November 28, 1987. An “incentive/ disincentive” clause provided for a backcharge against BCC of $4,000 for each day after the completion date that BCC required to finish the job.
We have examined the various documents to which BCC has directed our attention. They consist of letters from BCC to C.F. Mistretta, the district highway engineer who appears to have been in charge of the Reading bridges job for DPW District #4, letters of response by Mistretta, an internal letter from Mistretta to the chief engineer of the DPW, and a vote of the Public Works Commission extending the completion date for the bridges job. In analyzing the significance of those documents, it is necessary to take into account that the underlying contract incorporated the DPW’s Standard Specifications for Highways and Bridges (1973) (the Blue Book). Section 8.05 of the Blue Book provided: “The Contractor hereby agrees that he shall have no claim for damages of any kind on account of any delay in commencement of the work
At minimum, we think that a document from the DPW must in some manner instruct — or confirm that the contractor has been instructed — to delay, suspend, or interrupt work for periods the authority determines, as the statute says, “to be appropriate for the convenience of the awarding authority.” BCC first looks to support for its position in a letter dated December 7, 1987, from the district highway engineer to BCC. That letter: 1) acknowledges receipt of notice by BCC that it proposes to file a claim for delay impact; 2) confirms that the Public Works Commission has voted to delete the incentive-disincentive provision from the contract; and 3) reports that a condition of the deletion is that certain work proceed throughout the winter and that no bituminous concrete work be done until the next spring. The only passage in that letter that has about it the flavor of an instruction or order is the one that calls a halt to bituminous concrete work. That direction, however, is no more than repetition of what the contract had provided for in § 460.63, concerning curtailment of bituminous concrete work after November 15th and before April 1st. The December 7th letter, therefore, does not qualify as an instruction or order to delay.
There is even less hope for BCC in a letter from the district highway engineer to BCC dated the next day, December 8, 1987, acknowledging receipt of a letter from BCC about the status of shop drawings for sign supports. That letter has no attributes of an instruction or order. A letter dated February 11, 1988, from the district highway engineer to the chief engineer of the DPW, detailing certain delays and. recommending allowances on BCC’s behalf acknowledges some contributions to delay by the DPW (while denying some of the other claims), but the document is entirely internal to the
A letter from the district highway engineer dated February 3, 1988, comes much closer to constituting a written order or instruction. It acknowledges receipt of correspondence from BCC confirming a verbal order of a DPW superintendent to “stop certain excavation work in the median in the vicinity of Br R 3-10.” The letter also contains an acknowledgement of BCC’s “intent to submit a claim for any additional costs associated with this work.” BCC had written to the district engineer on December 22, 1987, to “acknowledge” the directive of the DPW superintendent. BCC’s letter had gone on to say it thought it could complete that work in about two weeks, but that, in consequence of the order not to proceed, the work would have to be done out of sequence, in more time, and at greater cost. Patched together, these documents have the earmarks of a written order to delay, i.e., a written confirmation of a delay order by an authorized official of the awarding authority.
In two other respects, the December 22, 1987, and Febru
As a final argument in its brief, BCC urges adoption of a principle of “constructive suspension,” whereby a delay order is inferred from action of the public authority that causes delay in the public work. See Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 443 (Cl. Ct. 1970). Such a principal is inconsistent with the written order requirement of Reynolds Bros., Inc. v. Commonwealth, supra at 6.
The trial judge correctly ruled that, on this record, delay impact damages under G. L. c. 30, § 390, were not recoverable.
Judgment affirmed.
The text of the statute, as inserted by St. 1973, c. 1164, is as follows: “Every contract subject to the provisions of section thirty-nine M of this chapter or subject to section forty-four A of chapter one hundred forty-nine shall contain the following provisions (a) and (b) in their entirety and, in the event a suspension, delay, interruption or failure to act of the awarding authority increases the cost of performance to any subcontractor, that subcontractor shall have the same rights against the general contractor for payment for an increase in the cost of his performance as provisions (a)
“(á) The awarding authority may order the general contractor in writing to suspend, delay, or interrupt all or any part of the work for such period of time as it may determine to be appropriate for the convenience of the awarding authority; provided however, that if there is a suspension, delay or interruption for fifteen days or more or due to a failure of the awarding authority to act within the time specified in this contract, the awarding authority shall make an adjustment in the contract price for any increase in the cost of performance of this contract but shall not include any profit to the general contractor on such increase; and provided further, that the awarding authority shall not make any adjustment in the contract price under this provision for any suspension, delay, interruption or failure to act to the extent that such is due to any cause for which this contract provides for an equitable adjustment of the contract price under any other contract provisions.
“(b) The general contractor must submit the amount of a claim under provision (a) to the awarding authority in writing as soon as practicable after the end of the suspension, delay, interruption or failure to act and, in any event, not later than the date of final payment under this contract and, except for costs due to a suspension order, the awarding authority shall not approve any costs in the claim incurred more than twenty days before the general contractor notified the awarding authority in writing of the act or failure to act involved in the claim.”
Now the Department of Highways. See St. 1991, c. 552.
BCC also asks us to depart from the reasoning and holding of Reynolds Bros., Inc. v. Commonwealth, supra; we decline that invitation.
We intimate no position whether the categories of claims would be recoverable as damages incident to delay if the preconditions for a delay impact claim are met.
A proviso clause in § 8.05 goes on to say that in certain instances in which the Public Works Commission determines that a delay is necessary, the DPW shall make an adjustment in the contract for increases in the cost of performance by the contractor.
Under § 8.09 of the Blue Book, the engineer has authority to delay any portion of the work for such time “as he may deem necessary.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.