Design & Construction Practice: 2012 Year in Review

by Burns & Levinson LLP

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...

Please see full newsletter below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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