Lawrence-Lynch Corp. v. Department of Environmental Management

• Decision Date: 09 August 1984
• Docket Number: LAWRENCE-LYNCH
• Citation: 392 Mass. 681,467 N.E.2d 838
• Parties: CORP. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 838

467 N.E.2d 838

392 Mass. 681

LAWRENCE-LYNCH CORP. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued April 4, 1984.

Decided Aug. 9, 1984.

Christopher H. Worthington, Asst. Atty. Gen., for defendant.

Edward W. Kirk, Falmouth, for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

Lawrence-Lynch Corp. (contractor) entered into a contract with the Department of Environmental Management (department). The work included restoration of three to four hundred feet of a sea wall on Gallops Island in Boston Harbor. After completion of the project, the contractor commenced an action against the department seeking payment for added expenses Work began on the contract on November 5, 1979. The contract provided that the supporting "fill" to be used in restoring the sea wall would be taken from the intertidal zone immediately adjacent to the wall. The trial judge found that "[i]n December, 1979, a dispute arose concerning the fill. The [contractor] contended that it was unable to use the intertidal zone fill contemplated in the contract and would be required to obtain the fill from a source not specified in the contract. At that time the [department] insisted that the fill be provided as required in the written specifications of the contract. This impasse between the [contractor] and the [department] continued until just prior to the completion date of the contract, which was July 1, 1980. At approximately the second week of June, the [department] through its agent, [the project engineer], authorized the [contractor] to obtain the fill from a site approximately 600 yards from the area specified in the contract. This authorization was given verbally to ... the [contractor's] construction superintendent. The [department] likewise at that time urged the [contractor] to complete the contract work as per schedule. Pursuant to that authorization the [contractor] completed the work required in the contract ...." This case arises from the department's refusal to reimburse the contractor for the additional expenses incurred in obtaining the fill 600 yards away from the sea wall and transporting it to the wall.

incurred while performing certain extra work required to restore the sea wall. Following a jury-waived trial, a judge of the Superior Court entered judgment for the contractor, holding that provisions of the contract requiring written approval of the extra work had been waived by the department. The Appeals Court affirmed this judgment. Lawrence-Lynch [392 Mass. 682] Corp. v. Department of Envtl. Management, 17 Mass.App.Ct. 954, 458 N.E.2d 332 (1983). We granted the department's application for further appellate review. We reverse the judgment of the Superior Court because the contractor failed to follow certain contractual procedures for seeking compensation for claims for extra work not authorized by the department in writing.

The provisions of the contract pertaining to extra work and modifications of the contract are found in Article XVI of that document. ¹ The interpretation of an unambiguous contract is a question of law for the court. Sparks v. Microwave Assocs., 359 Mass. 597, 600, 270 N.E.2d 909 (1971). Article XVI, paragraph (b), provides: "Any addition to, deduction from or modification of the plans, specifications or contract shall be deemed to be a change in the plans, specifications or contract." Paragraph (c) of Article XVI provides: "Subject to all provisions of the contract, the Contractor shall do any and all work required to effect a change in the plans, specifications or contract only when and as directed by: (1) a written authorization for a change in the plans, specifications or contract; or (2) an approved formal change order executed by the Department."

The contractor and the department did not make an "addition to, deduction from or modification of the plans, specifications or contract," and therefore did not make a "change" in the plans, specifications, or contract. The contract remained intact; what occurred was a minor deviation from the terms of the contract. Accordingly, the requirement in paragraph (c) that work be performed only as directed by "a written authorization" or "an approved formal change order executed by the Department," does not apply to the extra work performed by the contractor.

The contract also incorporated the provisions of G.L. c. 30, § 39I, inserted by St.1960, c. 771, § 1A. That statute provides in pertinent part that "[n]o wilful and substantial deviation from ... plans and specifications [of a contract for the construction, alteration, maintenance, repair or demolition of, or addition to, any public building or public works for the Commonwealth, or of any political subdivision thereof] In enacting G.L. c. 30, § 39I, the Legislature determined that the public interest could best be protected by requiring that substantial deviations from the plans or specifications of a contract be authorized in writing. Minor deviations from the plans or specifications, however, may be authorized orally. In this case, the department conceded that the project engineer had authority to direct the contractor to obtain the fill 600 yards from the sea wall.

                shall be made unless authorized in writing by the awarding authority or by the engineer or architect in charge of the work who is duly authorized by the awarding authority to approve such deviations."   The department has conceded that "[t]he direction to haul from the new location 600 yards away could not be reasonably considered to be such a deviation from the plans and specifications to justify a change order.  Rather, the change was of a minor nature not requiring a formal change in the document, falling within the project engineer's discretion, and taken for the convenience of the contractor."   Thus, the provisions of G.L. c. 30, § 39I, which require a written authorization for substantial deviations from a contractor's plans and specifications, did not apply to the extra work on the sea wall
                

The Commonwealth is protected from excessive extra costs for this work by other provisions in Article XVI which insure that the department is aware of the nature and extent of the additional claims and has an opportunity to monitor the extra work. Paragraph (g) of Article XVI provides: "If the Contractor claims compensation for a change not ordered as aforesaid, ... he shall on or before the first working day following commencement of any such work ... submit to the Architect, the Clerk of the Works and the Department a written statement of the nature of such work .... Any work performed ... prior to the time specified above, even though similar in character, will not be considered as warranting compensation, it being clearly understood that the commencement of any such work ... will be recognized only when and as submitted in writing in accordance with the requirements of this Article." Paragraph (h) of the same article further provides: "On or before the second working day after the commencement of such work ... and daily thereafter, the Contractor shall file with the Clerk of the Works, the Architect, and the Department, in such form and manner as is satisfactory to the Department, itemized statements of the details and cost of such work performed ...; and unless such statements shall be made as so required, his claim for such...