E. Amanti & Sons, Inc. v. R.C. Griffin, Inc.

• Decision Date: 21 November 2001
• Docket Number: 98p855
• Citation: 53 Mass. App. Ct. 245
• Parties: E. AMANTI & SONS, INC. vs. R.C. GRIFFIN, INC., & another(FN1); TOWN OF DANVERS, third-party defendant. 98-Massachusetts Court of Appeals
• Court: Appeals Court of Massachusetts

E. AMANTI & SONS, INC. vs R.C. GRIFFIN, INC., & another(FN1); TOWN OF DANVERS, third-party defendant

98-P-855

Massachusetts Court of Appeals

January 12, 2000

November 21, 2001

County: Essex.

Present: Jacobs, Gillerman, & Beck, JJ.

Contract, Public works, Bidding for contract, Subcontract, Specifications, Damages, Indemnity. Public Works, Bidding procedure, General contractor, Specifications, Attorney's fees. Damages, Loss of profits, Attorney's fees, Public works contract.

Civil action commenced in the Superior Court Department on September 18, 1995.

The case was heard by Christine M. McEvoy, J., on motions for summary judgment, and a hearing on an assessment of damages was had before Nancy Merrick, J.

Brad A. Gordon for town of Danvers.

John J. Spignesi for the plaintiff.

Peter W. Waltonen for R.C. Griffin, Inc., & another.

BECK, J.

This dispute concerns the specifications for the emergency vehicle exhaust system for a fire station in the town of Danvers. The plaintiff, E. Amanti and Sons, Inc. (Amanti), the successful heating, ventilation, and air conditioning (HVAC) subbidder, claims that the town's interpretation of the specifications violated key provisions of G. L. c. 30, § 39M(b). Having no privity with the town, Amanti brought suit against R.C. Griffin, Inc., the general contractor, and its surety, Fidelity & Deposit Co. of Maryland (general contractor). Amanti's complaint sought payment from the general contractor for excess costs Amanti incurred when the general contractor, at the insistence of the town, required Amanti to supply a specific emergency vehicle exhaust system that was more costly than the one Amanti had bid. The general contractor then filed a third-party action against the town for any damages Amanti might recover from it. A Superior Court judge allowed summary judgment for Amanti against the general contractor and for the general contractor against the town. The town appeals. The general contractor also appeals, claiming it is entitled to recover the attorney's fees and costs it incurred in this litigation. We affirm the order on assessment of damages and the judgment which were entered on November 21, 1997.

1. Procedural and factual background. The specifications at issue here were set out in a five and one-half page addendum to the invitation for bids for construction of the town's new fire station. (There is nothing in the record concerning the specifications the addendum "replace[d].") The specifications required the emergency vehicle exhaust system to be "the standard product of a U.S. exhaust system manufacturer" and consisted of eighteen detailed paragraphs. Paragraph 18 reads as follows:"Emergency Vehicle Exhaust System shall be as specified and manufactured by PlymoVent, or approved equal by the Fire Department."

Amanti, a Massachusetts corporation experienced in the relevant subtrade as well as in public sector work, submitted a subbid for the HVAC system. See G. L. c. 149, § 44F. After the town awarded the contract to the general contractor, which had carried Amanti as its HVAC subbidder, Amanti sought approval for a proposed emergency vehicle exhaust system manufactured by Carmon. Initially, the town's architect agreed.

Shortly thereafter, however, the architect notified the general contractor that Amanti's proposed exhaust system did not meet the "performance requirement" in the addendum. The letter set out specific failings of Amanti's proposed system, required Amanti to "resubmit a revised vehicle exhaust system" meeting the town's specifications, and noted:"The Fire Department has researched and observed in operation a number of exhaust systems. Their requirements were used in preparing the specification. The performance and characteristics included in the specification are provided so as not to limit the system to a single manufacturer."

Amanti responded by reminding the general contractor that the project was bid under G. L. c. 30, § 39M, that for a competitive bid the statute required the awarding authority to provide three named brands or a description that can be met by a minimum of three manufacturers, and that "[w]ithout such provision a specification for a product becomes proprietary." Amanti asserted that the town had failed to follow the steps necessary to "limit the acceptable [v]ehicle [e]xhaust system to a single supplier." Amanti therefore requested that it "be furnished the name[s] and specific model number(s) of two additional manufacturers which are equivalent and therefore will be accepted in order that we may solicit competitive quotations."

In response, the architect insisted that it had "provide[d] a performance type of specification . . . [and] the name of one manufacturer that . . . meets the performance requirements [while indicating it] would accept other manufacturers who [could] meet [those] criteria." The architect's letter directed the general contractor to submit shop drawings within two weeks and stated that failure to do so would constitute a default. Four days later, presumably in response to Amanti's request, the architect wrote another letter to the general contractor which stated, "I have the names of suppliers of vehicle exhaust systems such as Tycon, Monoxivent and N.S.G.V. but I don't know where they are located, I can't get any technical materials and I don't know if their standard package includes the [three] essential safety features we specified." Amanti then notified the general contractor that it would furnish the PlymoVent system, but under protest, and would seek full compensation for additional costs. Eight months later, apparently after completing the project, Amanti filed this action.

There being no privity between the subcontractor and the town, see Grande & Son v. School Hous. Comm. of N. Reading, 334 Mass. 252, 255-256 (1956), Amanti brought suit against the general contractor under G. L. c. 149, § 29. Asserting that the town's demands violated G. L. c. 30, § 39M(b), Amanti claimed it was entitled to recover the additional costs of the PlymoVent system ($18,588.11), plus interest, costs, and reasonable attorney's fees. The general contractor answered, denying liability, and filed a third-party complaint against the town seeking "the full amount ultimately adjudged due Amanti plus interest, costs and attorneys fees." Upon motions for summary judgment -- Amanti against the general contractor, the general contractor against the town, and the town against the general contractor -- a Superior Court judge allowed the motions of Amanti and the general contractor and denied the town's motion. A different judge held a damages hearing and awarded damages to Amanti and to the general contractor to the extent that it was liable to Amanti. The town and the general contractor appeal, the latter claiming entitlement to attorney's fees and costs it incurred in litigating Amanti's claim.

2. The applicable law. At the time of the events in this case, G. L. c. 30, § 39M(b), as amended by St. 1967, c. 535, § 5, provided:"Specifications for such contracts [under G. L. c. 30, § 39M(a)], and specifications of contracts awarded pursuant to the provisions of [G. L. c. 149, §§ 44A to 44L] shall be written to provide for full competition for each item of material to be furnished under the contract; except, however, that said specifications may be otherwise written for sound reasons in the public interest stated in writing in the public records of the awarding authority or promptly given in writing by the awarding authority to anyone making a written request therefor, in either instance such writing to be prepared after reasonable investigation. Every such contract shall provide that an item equal to that named or described in the said specifications may be furnished; and an item shall be considered equal to the item so named or described if (1) it is at least equal in quality, durability, appearance, strength and design, (2) it will perform at least equally the function imposed by the general design for the public work being contracted for or the material being purchased, and (3) it conforms substantially, even with deviations, to the detailed requirements for the item in the said specifications. For each item of material the specifications shall provide for either a minimum of three named brands of material or a description of material which can be met by a minimum of three manufacturers or producers, and for the equal of any one of said named or described materials."

(The term "material" was defined as an "article, assembly, system, or any component part thereof." G. L. c. 30, § 39M[e], as appearing in St. 1963, c. 842, § 1.) We discuss the statute in more detail below.

3. Standard of review, prior proceedings, and issues on appeal. "The standard for reviewing . . . [trial court action on] a motion for summary judgment is whether the record shows that there is no genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). . . . [S]tatutory interpretation is a question of law for the court to decide." Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 n.2 (2000) (citation omitted).

The Superior Court judge ruled in relevant part that, despite the town's insistence to the contrary, "[the town's] exhaust system specification [was] not a performance [i.e. competitive] specification because . . . [it was not] able to be satisfied by any manufacturer other than PlymoVent." She concluded that the town "had a duty to disclose to bidders that PlymoVent was [a] sole source" and that having failed in that duty, the town was liable for Amanti's lost profits.

On appeal, the town contends that its "bid specifications were compliant [with] the terms of c. 30, § 39M(b)." According to the town, "the plain language of the statute does not prohibit project specifications from occupying a middle ground between the two ends of...