Treasurer of Essex County v. County Com'rs of Essex

• Decision Date: 28 March 1979
• Parties: TREASURER OF ESSEX COUNTY v. COUNTY COMMISSIONERS OF ESSEX et al. 1
• Court: Appeals Court of Massachusetts

Page 188

387 N.E.2d 188

7 Mass.App.Ct. 890

TREASURER OF ESSEX COUNTY v. COUNTY COMMISSIONERS OF ESSEX et al. ¹

Appeals Court of Massachusetts, Essex.

Argued Jan. 12, 1979.

Decided March 28, 1979.

Franklin J. Gutman, New York, for P.C.M., Inc.

James T. Ronan, Salem, for plaintiff.

Herbert Abrams, Sp. Asst. Atty. Gen., for the Director of the Bureau of Building Const., for the Commonwealth.

Before KEVILLE, ARMSTRONG and GREANEY, JJ.

RESCRIPT.

On July 19, 1974, the Director of the Bureau of Building Construction (director), acting for the Commonwealth under the authority of G.L. c. 6A, §§ 22, 23 and 24 (now G.L. c. 7, §§ 40, 41 and 42; see St.1975, c. 311, §§ 1, 2), engaged an architect to design and supervise the construction of an Essex County court house. The general contract for that construction was executed on January 19, 1976. See G.L. c. 7, §§ 39-48. Six months after the architect was engaged by the Commonwealth, the county commissioners of Essex County (commissioners) entered into a contract with P.C.M., Inc. (PCM), to provide management services in the construction of the same court house. The present action for a declaratory judgment was brought by the treasurer of Essex County (treasurer), pursuant to G.L. c. 35, § 11, to determine the legality of an order for payment to PCM submitted by the commissioners for alleged services performed by PCM under its contract with the county. PCM appeals from a judgment of the Superior Court determining that the contract on which the order for payment was based "is null and void," and that no payment was due PCM under the contract. There was no error. 1. PCM's reliance upon the provisions of G.L. c. 34, § 17 (as amended by St.1973, c. 908, § 1), is misplaced. That statute, as amended, provided that the commissioners could hire "management consultants to supervise the building . . . of public buildings . . . Under contracts awarded under the provisions of this section" (emphasis supplied). The governing contract in this instance was not awarded under the provisions of § 17 but rather, as previously stated, under the provisions of G.L. c. 6A, §§ 22, 23 and 24. That contract was between the Commonwealth and its architect. Neither the commissioners nor PCM were parties to it, and no assignment was made by the architect to either PCM or the county of any rights or obligations under that contract. Nor was the Commonwealth or its architect a party to the contract between the commissioners and PCM. 2. PCM's contention that, aside from the express authority conferred by G.L. c. 34, § 17, the commissioners had implied authority pursuant to G.L. c. 34, §§ 3 and 14 (as in effect prior to St.1978, c. 478, §§ 17, 18) to hire a management consultant, is also unavailing. Although a public entity may obtain expert advice regarding tasks it is obliged to perform (William W. Drummey, Inc. v. Cambridge, 282 Mass. 170, 174, 184 N.E. 458 (1933); Day v. Newton, 342 Mass. 568, 570, 174 N.E.2d 426 (1961)),...