It was another memorable year for the construction industry in Massachusetts. As the economic recovery continued to take hold, commercial construction market activity continued to stabilize and public projects remained a source of stability for designers and builders. Burns & Levinson also had a busy year with our construction industry lawyers working on many exciting projects for our clients. This Year in Review provides a summary of notable cases, statutory and regulatory changes, and other noteworthy events impacting the construction industry in Massachusetts over the past twelve months.

In This Issue:

- Determination of Bidder Responsibility - (Barr v. Town of Holliston):

In May 2012, the Commonwealth’s highest court looked at the practices of one Massachusetts town in evaluating whether the low bidder on a new police station project satisfied the “responsibility” requirement of the Massachusetts bidding law, Chapter 149, § 44A-J. In Barr v. Town of Holliston, a town administrator directed the chief of police to conduct an investigation of Barr, Inc., the apparent low bidder on the project. After contacting a number of other municipalities that had previously worked with Barr, the town received several negative references and concluded that Barr was not a responsible bidder and therefore ineligible to be awarded the contract...

- Design Professionals’ Liability for Economic Losses - (Meridian at Windchime v. Earth Tech):

2012 saw another reported decision interpreting the economic loss doctrine in Massachusetts. In Meridian at Windchime v. Earth Tech, a municipality retained Earth Tech to perform a peer review of engineering plans prepared by DiPrete Engineering Associates for a residential subdivision project, as well as perform certain inspection services during construction....

- Waiver of Payment Bond Claims Held Illegal - (Costa v. Brait Builders):

This case arose from a public construction contract held by Brait Builders. Costa & Son Construction was awarded a site work subcontract on the project, which content was terminated as a result of Costa’s alleged poor performance...

- AIA Issues Sustainable Project Contract Documents:

In May 2012, the American Institute of Architects issued a new series of documents for use on sustainable projects. The five new documents — bearing the “SP” designation — are based on the 2007 conventional versions of the A101 Owner-Contractor Agreement, A201 General Conditions for the Contract for Construction, A401 Subcontractor Agreement, B101 Owner-Architect Agreement, and C401 Architect-Consultant Agreement....

- Bid Protests Involving Electronic Bidding:

In 2012, two bid protest decisions by the Massachusetts Attorney General’s Bid Unit addressed issues regarding the use of electronic bidding software...

- Bid Protest Involving “Bundling” of Services:

This year, the Bid Protest Unit addressed another protest in a line of recent “bundling” protests arising from pavement management services in the town of Kingston. Pavement Maintenance Systems, Inc. (“PMS”) challenged Kinston’s latest procurement for roadway surface restoration services...

- MBTA Deploys CM/GC Procurement:

In June 2012, the Legislature authorized the use of the construction manager/general contractor project delivery method (CM/GC) on the Green Line Extension (GLX) project. CM/GC combines several beneficial aspects of traditional design-bid-build procurement and construction management at risk, which has been widely used for vertical construction since its authorization in Massachusetts in 2004...

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