Order: Revoli Construction Co., Inc. vs. City Of Melrose

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                                COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 12-02061-A

REVOLI CONSTRUCTION CO., INC.,
Plaintiff
vs.

CITY OF MELROSE,
Defendant

and

CITY OF MELROSE,
Third-party plaintiff

ys.
KLEINFELDER/SEA CONSULTANTS, INC.,
Third-party defendant
MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR
‘ SUMMARY JUDGMENT
This action arises out of a contract dispute between Revoli Construction Co., Inc.

(Revoli” , the City of Melrose (“City”), and Kleinfelder/SEA Consultants (“Kleinfelder” or
“Engineer”). Revoli’s two-count Complaint sets forth claims for breach of contract (“Count I”)
and quantum meruit (“Count II”). Now before the court is Revoli’s Motion for Partial Summary
Judgment on Liability and the City and Kleinfelder’s (collectively, “Defendants”)' Motion for
Summary Judgment pursuant to Mass. R. Civ. P. 56(c). For the reasons stated herein, the
Defendants’ Motion for Summary Judgment will be ALLOWED and Revoli’s motion will be
DENIED.

' The Court allowed Kleinfelder’s motion to join the City’s Motion for Summary Judgment and the City’s
opposition to Revoli’s Motion for Partial Summary Judgment on October 13, 2015.SUMMARY JUDGMENT RECORD
Where, as here, there are cross motions for summary judgment, the court will assess the
record in the light most favorable to the party against whom judgment will enter. Epstein v.
Board of Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010). Accordingly, the summary
judgment record, viewed in the light most favorable to Revoli contains the following facts
material to this motion. Some facts are reserved for discussion, below.
I. , Background

In November 2010, the City commenced a project called the East Side Interceptor Sewer
Relocation Project (“Project”). By way of the Project, the City sought to perform significant
work on the drainage and sewer systems below the Melrose High School football field. The City
hired Kleinfelder to provide engineering and consulting services for the Project. One of
Kleinfelder’s duties was to prepare the specifications that prospective contractors would use to
create their bids (“Bid Specifications”).

-Pursuant to the preparation of the Bid Specifications, Kleinfelder collected data from
geotechnical borings used to identify subsurface materials at the Project site. This data was
recorded on logs that were included in the Bid Specification appendix (“Kleinfelder boring
logs”). The Bid Specifications warned potential contractors that the Kleinfelder boring logs were
offered “solely for the purpose of placing the Contractor in receipt of all information available.”

The Bid Specifications also provided significant guidelines with regard to the installation
of helical piles, which the Project required to support an underground sewer pipe.? The Bid
Specifications required the contractor to furnish “all necessary engineering and design services,
supervision, labor, tools, materials, and equipment to perform all work necessary to provide [a]

2 Helical piles are steel rods that screw into the ground beneath the subsurface to hold an object or structure on
top.helical pile foundation system to support [the underground sewer pipe] per the specifications”
described herein.” The Bid Specifications stated that the Kleinfelder boring logs “shall be used

as the basis for Helical Pile design,” and that the Kleinfelder boring logs attached to the Bid
Specifications “shall be considered to be representative of the in-situ subsurface conditions likely

to be encountered on the project site.” (Emphasis added).

Helical piles must reach particular torque during installation to ensure that they will
provide the necessary support. In the event the Project’s contractor failed to reach the required
installation torque, the Bid Specifications outlined three options: (1) install the Helical Pile
deeper using additional extension sections (“Option 1”); (2) remove the existing Helical Pile and
install a new one with additional and/or larger diameter helix plates (“Option 2”); or (3) de-rate
the load capacity of the Helical Pile and install additional Helical Pile(s) (“Option 3”). Option 3
also provided that the “Contractor shall reimburse owner for all costs of the Project Design
Engineer for any foundation redesigns.”

On February 10, 2011, the City accepted Revoli’s bid to serve as the General Contractor
for the Project. Revoli subcontracted G. Donaldson Construction (“Donaldson”) to install the
helical piles, and Donaldson hired Franklin Grynkewicz (“Grynkewicz”), the founder and sole
employee of FGG Consulting, to determine the size and number of helix plates‘ that Donaldson
should use to comply with the Bid Specifications. Richard Wilhelmsen (“Wilhelmsen”),
Donaldson’s Division Manager, testified that before Donaldson hired Grynkewicz, he “assumed”

that “someone” reviewed Kleinfelder’s boring logs. Grynkewicz testified that he designed the

3 Torque is the tendency of a force to rotate an object about an axis. To determine the proper installation torque,
the helical pile designer considers the weight of the structure the helical pile must support and select a torque
factor. A torque factor is a number between two and twenty that is based on soil conditions, the shaft size of the
pile, and the pile manufacturer’s recommendations.

4 The Bid Specifications define a “helix plate” as a “[g]enerally round steel plate formed into ramped spiral. The
helical shape provides the means to install the helical pile, plus the plate transfers load to soil in end bearing.”

3helical piles for the Project based solely on the Kleinfelder boring logs. Grynkewicz added that
“[o]ne of the things that was of concern” to him during the design process was that the
Kleinfelder boring logs “didn’t go deep enough.” Grynkewicz testified that he believed he had
designed the helical piles “based upon insufficient information.”

Kleinfelder hired a geotechnical engineering firm, Brierley Associates, LLC (“Brierley”)
to review Grynkewicz’s calculations. Brierley’s geotechnical engineer, Jay Perkins (“Perkins”),
approved the calculations after Grynkewicz incorporated a number of revisions. Based on these
calculations, Donaldson was required to attain an installation torque of 5,400 feet per pound.

On March 30, 2011, Revoli’s project manager, Alfredo Palumbo (“Palumbo”) wrote a
letter to Charles Serpa (“Serpa”), a civil engineer from the City’s Department of Public Works,
to notify Serpa that Donaldson had attempted to install helical piles at five different locations at
the Project site, but could “not achieve the proper torque necessary to meet the design criteria
which was based on [the Kleinfelder soil borings].” The letter attributed this issue to “differing
site conditions” and continued that

[Donaldson] . . . advised Mr. Perkins that two options were available to resolve
the changed conditions encountered which included drilling additional borings to
determine the depth of rock and change the pile design to an end bearing design . .

As of the end of Monday March 28, 2011 Revoli and [Donaldson] have

suspended operations until such time that direction is given on how to proceed

In accordance with the contract General Conditions Section 10.05 please be
advised that Revoli is hereby giving notice that a change in sub surface conditions

exists as described above. ... Revoli will document the data required to justify an
equitable adjustment to the contract price as per the contract documents and MGL
Chapter 30/39N.

Robert Beshara (“Beshara”), the City Engineer and Superintendent of Public Works
responded to Palumbo’s letter on March 31, 2011. Beshara stated that Revoli “presented no

evidence” to support its assertion that there were “differing site conditions,” and that Revoli’s“Notice of Change in Soil Conditions” was rejected “as having no documentation to support the
Notice.” Beshara’s letter stated that Revoli’s “suspension of operations in is [sic] violation of the
Contract Specifications” and directed Revoli to Options 1, 2, and 3 of the Bid Specifications.

On April 1, 2011, Donaldson performed its own soil borings. During his deposition,
Perkins testified that Donaldson’s boring logs (“Donaldson boring logs”) lacked quality control
because a “driller” who was “not educated in the field of geology and not qualified to classify
soils” performed them Perkins also stated that the descriptions in the Donaldson boring logs
were not in accordance with the standards required by the American Society for Testing and
Materials. Perkins concluded that the Donaldson boring logs failed to evidence differing
subsurface conditions.

During his deposition, Grynkewicz also reviewed the Donaldson boring logs. Like
Perkins, Grynkewicz concluded that the Donaldson boring logs evidenced soil conditions
reasonably consistent with those contemplated in the contract specifications. Likewise, Revoli’s
president, Shawqi Alsarabi (“Alsarabi”), testified that neither Revoli nor Donaldson were
geotechnical engineering firms qualified to determine whether the subsurface conditions
differed, and that even so, he did not personally believe that there were differing subsurface
conditions at the Project site.

On April 5, 2011, Palumbo wrote a letter to Beshara, which stated that Donaldson had
exhausted Options 1 and 2, and was still unable to achieve the required installation torque of
5,400 feet per pound. Palumbo’s letter continued that

the contract price for the helical piles would triple if Option 3 is carried out.
Revoli recommends that it would be more economical for the City to change to an
end bearing pile instead of adding more piles as per option 3 . . . and Revoli

further requests that the attached information and design from Donaldson for end
bearing piles be reviewed by the City.' Beshara responded to Revoli’s letter the same day. Beshara stated that the contract did
“not provide for additional piles to overcome a failure to reach the required torque values,” but
agreed “that a change to an end bearing pile would be a more economical solution for [Revoli]
than any of the options available under the Contract.”* Beshara also stated that Revoli had still
“not provided any evidence to support [its] statement of ‘differing site conditions,” and that the
data from the Donaldson boring logs “confirm[ed] the gravel and sand stratum depicted” in the
Kleinfelder boring logs. Beshara said that the City would “consider” Revoli’s proposal for an
end bearing pile support system and asked Revoli to submit shop drawings of its proposed
design, signed by a Massachusetts physical engineer.

. On April 7, 2011, a Massachusetts physical engineer approved Revoli’s design for an end
bearing support system. The City stipulates that it agreed to the end bearing design, but the
record does not indicate who approved the design on behalf of the City, precisely when, or
whether the approval was oral or written. It is undisputed, however, that Donaldson resumed
installing the helical piles using the end-bearing design on April 12, 2011.¢

On April 19, 2011, Atlas Systems of New England (“Atlas”) performed an independent
third-party review of Donaldson’s helical pile installation procedures. Beshara testified that
Kleinfelder hired Atlas in response to questions raised by unspecified parties regarding the
veracity of Donaldson’s installation methods and torque readings. Atlas installed its own torque
monitoring device to Donaldson’s torque motor in a manner that allowed it to read Donaldson’s
torque monitoring device at the same time. Atlas found that the readings on Donaldson’s

monitoring device did not correlate to the readings on its own monitoring device or “to any

5 The City points out in its memorandum that Beshara concluded an end bearing system would be less expensive
for Revoli because Option 3 would require Revoli to bear the costs of a foundation redesign incorporating the
additional piles.

6 The end-bearing design required Revoli to cut the tips off the helical piles to allow them to rest on flat bedrock.

6rational torque readings for the given soil profile.” Atlas concluded that Donaldson’s torque
monitoring device “was not properly calibrated and or functioning to accurately record the
installation torque values.”

Donaldson finished installing the helical piles on April 25, 2011. It is unclear when
Revoli completed the Project, but the parties agree that it was finished on time, and Revoli’s
contract with the City required it to be substantially complete by April 29, 2011. The City paid
Revoli $646,421.86 for its work.

On May 27, 2011, Palumbo sent a letter to Serpa that stated, in relevant part:

As a result of the helical pile delay in installation, Revoli had incurred
downtime on its equipments [sic] which were not able to perform work
due to the delay caused in the redesign of the piles.

On this date Revoli has received a change order from Donaldson
requesting compensation for the additional costs incurred to complete the
helical piles on this project due to a change in sub surface conditions.
Donaldson’s claim is that the borings provided in the contract for which
the helical pile design was based upon were not accurate and the differing
soil conditions found in the field prevented the helical piles from
achieving the required torque and further forcing a redesign of the helical
pile. . . . Revoli submits Donaldson’s claim due to the change in sub
surface conditions they claimed to have encountered as set forth in the
contract and MGL Chapter 30/39N. Revoli submits this change order
request due to the differing subsurface conditions claim made by
Donaldson and hence has attached a copy in its entirety as a formal change
order request.

Kindly formulate a change order in the amount of $160,805.37 and add
120 hours or 15 days to the contract completion time and forward to this
office for execution.
On July 28, 2011, after the City denied Revoli’s May 27, 2011 request, Palumbo wrote a
letter to Beshara. In his letter, Palumbo repeated Revoli’s claim that Revoli and Donaldson

“incurred additional costs due to the delay and additional materials necessary to install the helical

piles to refusal. This outcome was the result of a change in subsurface conditions whichprevented the helical piles from achieving the required torques as originally designed by G.
Donaldson and approved by the Engineer.”
Il. Contract
The terms of Revoli’s contract with the City are set forth in a series of documents
referred to as the “Contract Documents.” The Contract Documents the court reviewed include:
the Bid Specifications; a document simply titled “Agreement,” which outlines the general terms
of the City’s contract with Revoli; and a document titled “Standard General Conditions of the
Construction Contract” (“General Conditions”).
A. Reliance on Kleinfelder Boring Log Data
All of the Contract Documents contain provisions that limited Revoli’s ability to rely on
the Kleinfelder boring logs. The Bid Specifications warned prospective contractors that they
were required to
interpret such data according to his or her own judgment and acknowledge []
that he or she is not relying upon the same as accurately describing the subsurface
conditions which may be found to exist. The Contractor further acknowledges that
he or she assumes all risk contingent upon the nature of the subsurface conditions,
to be actually encountered in performing the work covered by the Contract, even
though such actual conditions may result in the Contractor performing more or
less work than he originally anticipated.
The Bid Specifications required Revoli to acknowledge that it was “responsible for performing
any additional investigations . . . necessary to bid and to perform the work,” and that it
understood “that information relative to subsurface and other conditions . . . has been furnished
only for his information and convenience without any warranty or guarantee, expressed or
implied, that the subsurface and/or other conditions . . . actually encountered will be the same as

those shown on the Drawings or in any of the other Contract Documents and he agrees that he

shall not use or be entitled to use any such information made available to him through theContract Documents . . . as a basis of or ground for any claim against the Owner or the Engineer

arising from or by reason of any variance which may exist between the aforesaid information . . .

and the subsurface and/or other conditions . . . actually encountered during construction work,

and he has made due allowance therefore in this BID .. . .”

Likewise, the General Conditions contained the following provision:

4.02 Subsurface and Physical Conditions

A.

Reports and Drawings: The Supplementary Conditions Identify:

1,

those reports of explorations and tests of subsurface
conditions at or contiguous to the Site that ENGINEER has
used in preparing the Contract Documents; and

those drawings of physical conditions in or relating to
existing surface or subsurface structures at or contiguous to
the Site (except Underground facilities) that ENGINEER
has used in preparing the Contract Documents.

Limited Reliance by CONTRACTOR on Technical Data
Authorized: CONTRACTOR may rely upon the general accuracy
of the ‘technical data’ contained in such reports and drawings, but
such reports and drawings are not Contract Documents. .. . Except
for such reliance on such ‘technical data,” CONTRACTOR may
not rely upon or make and Claim against OWNER, ENGINEER,
or any of ENGINEER’s Consultants with respect to:

1,

the completeness of such reports and drawings for
CONTRACTOR’s purposes ....

other data, interpretations opinions, and information
contained in such reports or shown indicated in such
drawings; or

any CONTRACTOR interpretation of or conclusion drawn
form any ‘technical data’ or any such other data,
interpretations opinions, or information.

Additionally, the Agreement required Revoli to acknowledge that it had “carefully

studied all reports of explorations and tests of subsurface conditions” at the Project site and“accept[ed] the determination . . . of the Supplementary Conditions of the extent of the ‘technical

data’ contained in such reports and drawings upon which CONTRACTOR is entitled to rely as

provided in paragraph 4.02 of the General Conditions .:..” The Agreement continued that

B.

CONTRACTOR acknowledges that OWNER and ENGINEER do not assume
responsibility for the accuracy or completeness of information and data shown or
indicated in the Contract Documents with respect to Underground Facilities at or
contiguous to the [Project] site. CONTRACTOR has obtained and carefully
studied (or assumes responsibility for having done so) all such additional
supplementary examinations, investigations, explorations, tests, studies, and data
concerning conditions (surface, subsurface, and Underground Facilities) at or
contiguous to the site or otherwise which may affect cost, progress, performance,
or furnishing of the Work or which relate to any aspect of the means, methods,
techniques, sequences, and procedures of construction to be employed by
CONTRACTOR .... CONTRACTOR does not consider that any additional
examinations, investigations, explorations, tests, studies, or data are necessary for
the performance and furnishing of the Work at the Contract Price, within the
Contract Times and in accordance with the other terms and conditions of the
Contract Documents.

Unexpected Subsurface Conditions

The Bid Specifications required Revoli to notify the City and cease helical pile

installation in areas where discrepancies in site conditions are found until they are resolved. The

Bid Specifications further provided that all costs associated with site condition discrepancies are

the responsibility of the City.

Likewise, paragraph 4.03 of the General Conditions required Revoli to cease helical pile

installation and notify Kleinfelder and the City in writing upon discovery of differing subsurface

or physical conditions at the Project site. This section stated that differing subsurface or physical

conditions are conditions: (1) that establish the “technical data” upon which Revoli was entitled

to rely “is materially inaccurate;” (2) “of such a nature to require a change in the Contract

Documents”; (3) “differ[] materially from that shown or indicated in the Contract Documents;”

or (4) “of an unusual nature, and differ[] materially from conditions ordinarily encountered and

10generally recognized as inherent in work of the character provided for in the Contract

Documents.” Paragraph 4.03 continued that upon receipt of written notice of purported differing

site conditions, Kleinfelder “will promptly review the pertinent site condition” and determine the

necessity of additional exploration or tests.

c Changes

Several provisions in the General Conditions governed changes to the contract

documents, price, and time for completion. These provisions are excerpted in relevant part

below:

3.04

4.03

Amending and Supplementing Contract Documents

The Contract Documents may be amended to provide for additions,
deletions, and revisions in the Work or to modify the terms and
conditions thereof in one or more of the following ways: (i) a
Written Amendment; (ii) a Change Order; or (iii) a Work Change
Directive.

The requirements of the Contract Documents may be
supplemented, and minor variations and deviations in the Work
may be authorized, by . . . (i) a Field order;! (ii) ENGINEER’S
approval of a shop drawing or sample; or (iii) ENGINEER’s
written interpretation or clarification.

Differing Subsurface or Physical Conditions

Possible Price and Times Adjustments

1. The Contract Price . .. will be equitably adjusted to the
extent that the existence of such differing subsurface or
physical condition causes an increase or decrease in
CONTRACTOR’s cost of, or time required for,
performance of the Work; subject, however, to the
following:

7 The General Conditions define a “field order” as “[a] written order issued by ENGINEER which requires minor
changes in the Work but which does not involve a change in the Contract Price or the Contract Times.”

11a. such condition must meet any one or more of the
categories described in paragraph 4.03A ....

2. CONTRACTOR shall not be entitled to any adjustment in
the Contract Price .. . if:

b. the existence of such condition could reasonably
have been discovered or revealed as a result of any
examination, investigation, exploration, test, or
study of the Site and contiguous areas required by
the Bidding Requirements or Contract Documents
to be conducted by or for CONTRACTOR prior to
CONTRACTOR’s making such final commitment .

10.01 Authorized Changes in the Work

A. .... [the City] may, at any time or from time to time, order
additions, deletions, or revisions in the Work by a Written
Amendment, #! a Change Order, ! or a Work Change Directive. !"0]
Upon receipt of any such document, CONTRACTOR shall
promptly proceed with the Work involved... .

10.02 Unauthorized Changes in the Work

A. CONTRACTOR shall not be entitled to an increase in the Contract
Price . . . with respect to any work performed that is not required
by the Contract Documents as amended, modified, or
supplemented as provided in paragraph 3.04....

The General Conditions define a “written amendment” as “[a] written statement modifying the Contract
Documents, signed by OWNER and CONTRACTOR on or after the Effective Date of the Agreement and
normally dealing with the nonengineering or nontechnical rather than strictly construction-related aspects of the
Contract Documents.

The General Conditions define a “change order” as “[a] document recommended by ENGINEER which is signed
by CONTRACTOR and OWNER and authorizes an addition, deletion, or revision in the Work or an adjustment
in the Contract Price ....”

The General Conditions define a “work change directive” as “[a] written statement to CONTRACTOR issued on
or after the Effective Date of the Agreement and signed by OWNER and recommended by ENGINEER ordering
an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical
conditions under which the Work is to be performed .... A Work Change Directive will not change the
Contract Price . . . but is evidence that the parties expect that the change ordered or documented by a Work
Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the
parties as to its effect, if any, on the Contract Price ..

 

1212.06 Delay Damages
A. In no event shall OWNER or ENGINEER be liable to
CONTRACTOR . . . for damages arising out of or resulting from .
. . delays caused by or within the control of CONTRACTOR.
DISCUSSION
IL Standard
Summary judgment shall be granted where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law. Mass. R. Civ P. 56(c). See

Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983); Community Nat’l Bank v.

 

Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of establishing that there

 

is no dispute of material fact on every relevant issue. See Sullivan v. Liberty Mut. Ins. Co., 444

 

Mass. 34, 39 (2005). A party moving for summary judgment who does not bear the burden of
proof at trial may demonstrate the absence of a genuine dispute of material fact either by
submitting affirmative evidence negating an essential element of the non-moving party’s case, or
by showing that the non-moving party has no reasonable expectation of proving an essential

element of its case at trial. See Flesner v. Technical Commce’ns Corp., 410 Mass. 805, 809

 

(1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). When the court is
faced with cross-motions, as it is here, its analysis is guided by which party has the burden on the
issues before the court. See Epstein, 77 Mass. App. Ct. at 756. The fact that one party’s motion

fails does not mean that the cross motion necessarily succeeds. See id.
It. Analysis

The record reveals that from the time of Revoli’s alleged discovery of differing
subsurface conditions in March 2011, until it filed its Complaint in July 2012, Revoli has argued

that it is entitled to an equitable adjustment of the contract price pursuant to the contract terms

13regarding differing subsurface conditions and the provisions of G. L. c. 30, § 39N (requiring an
equitable adjustment to the price of public construction contracts where contractor discovers
differing subsurface or latent physica! conditions).

In the memorandum in support of its motion for summary judgment, Revoli for the first
time argues that whether there were different subsurface conditions at the Project site is
irrelevant and acknowledges that “no party has actually determined why the Installation Torque
could not be achieved.” Throughout the same memorandum, however, Revoli maintains that
because “the subsurface conditions present at the site did not allow Revoli to achieve the
necessary Installation Torque,” the City is responsible for the costs Revoli incurred by switching
to the end bearing support system.

A. Differing Subsurface Conditions

To the extent that Revoli still relies on the assertion that differing subsurface conditions
warrant an equitable adjustment to the contract price, the court does not agree." As the City
correctly contends, there is no evidence in the summary judgment record to suggest that the
subsurface conditions Revoli encountered differed in any way from what was anticipated in the
Kleinfelder boring logs. See Celeo Construction Corp. v. Avon, 87 Mass. App. Ct. 132, 135
(2015). Notably, Revoli’s president testified that he agrees that the subsurface conditions were
not different. Moreover, Atlas concluded that rather than encountering differing subsurface
conditions, Donaldson’s apparent inability to achieve the required torque was a result of
improperly calibrated torque monitoring equipment. Further, Perkins and Grynkewicz, who are

both geotechnical engineers, testified that the conditions revealed by the Donaldson boring logs

"Although Revoli asserts that differing subsurface conditions are now irrelevant to its claim, it maintains that
Paragraph 3.1D of Section 02466 of the Bid Specifications supports its claim for breach because that provision
required the City to pay “all costs associated with unresolved discrepancies” in the site conditions.

14were similar and consistent with the conditions contemplated in the contract documents and the
Kleinfelder boring logs.

‘ Revoli attempts to counter this evidence by citing to the portion of Wilhelmsen’s
deposition during which Wilhelmsen offered to compare the Kleinfelder and Donaldson boring
logs to determine whether there were material differences between them. After completing his
review, Wilhelmsen testified that he observed “some substantial differences” between the two
boring logs. Wilhelmsen’s testimony is unpersuasive.

The interpretation of soil boring data “is beyond the common knowledge or
understanding of the lay juror,” and requires expert testimony. See Commonwealth v. Sands,
424 Mass. 184, 186 (1997) (quotation omitted). The court has broad discretion to determine
whether a witness has a proper foundation upon which to render an opinion on the matter in
dispute. Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306, 309 (1972).
The court finds that Wilhelmsen, who is not an engineer, and testificd that he hired geotechnical
engineers to perform the same analysis of the boring logs that he purported to perform himself
during his deposition, was not qualified to render an opinion on the meaning of the Kleinfelder
and Donaldson soil borings.

Revoli alternately contends that soil borings are irrelevant to an analysis of whether
differing subsurface conditions were present at the Project site, and points to Sutton Corp. v.

Metropolitan District Commission, 423 Mass. 200, 206 (1996), in support. In Sutton, the court

 

held that subsurface conditions are materially different where they differ from “those conditions
ordinarily encountered and generally recognized as inherent in work of the character provided
for in the plans and contract documents.” Revoli’s reliance on Sutton is misplaced. Here, unlike

the parties in Sutton, the parties do not agree that there were differing subsurface conditions at

 

15the Project site. 423 Mass. at 203 n.5. Further, not only has Revoli failed to set forth any
credible evidence that it encountered subsurface conditions that differed from those “ordinarily
encountered” while performing similar work, but even if Revoli had set forth such evidence, it
expressly assumed the risk of differing conditions when it executed the Contract Documents.

Specifically, the Contract Documents expressly disclaimed the stated nature of the
subsurface conditions and required Revoli to “assume[] all risk contingent upon the nature of the
subsurface conditions, to be actually encountered in performing the work covered by the
Contract, even though such actual conditions may result in the Contractor performing more or
less work than he originally anticipated.” Implicit in this language was the forewarning that
conditions that differed from the contract specifications could be contemplated and should be
considered by Revoli when it computed its bid. Similar disclaimers appeared in the Bid
Specifications, the Agreement, and the General Conditions. When a plaintiff has been cautioned,
in writing, about a condition of a contract it may not then ignore the warning. See Page v.
Frazier, 388 Mass. 55, 66 (1983). Revoli must bear the consequences of its choice, after
disclosure by the City, to elect the riskier path of not doing its own investigation before bidding
on the Project.

Revoli contends that the foregoing disclaimers are in conflict with Paragraph 4.02 of the
General Conditions, which provides that the contractor may rely on the “general accuracy” of the
“technical data” provided in the Kleinfelder boring logs. Revoli is incorrect. A provision
permitting contractors to rely on the accuracy of data, such as Paragraph 4.02, is not the same as
a provision permitting contractors to rely on the sufficiency of data. See Callahan v. First,

Congregational Church of Haverhill, 441 Mass. 699, 710-711 (2004) (distinguishing “accuracy”

and “sufficiency”); see also Southern Union Co. v. Department of Pub. Utils., 458 Mass. 812,

16820 (2011) (“The court interprets a contract that is free from ambiguity according to its plain
meaning.”).

Paragraph 4.02 expressly disclaimed the completeness of Kleinfelder’s boring logs as
well any opinions or conclusions that Revoli may have drawn therefrom. Moreover, the
Agreement required Revoli to acknowledge that it did “not consider that any additional
examinations, investigations, explorations, tests, studies, or data are necessary for the
performance and furnishing of the Work at the Contract Price... .” Despite these extensive
disclaimers, Alsarabi testified that Revoli did not hire or consult with any geotechnical engineers
in order to produce its bid.

; Revoli additionally avers that the technical data Paragraph 4.02 permitted it to rely on
was inaccurate, citing Grynkewicz’s testimony that Kleinfelder’s soil borings were not deep
enough. This argument is without merit. Grynkewicz’s testimony does not evidence that
Kleinfelder’s boring logs were inaccurate, but that Kleinfelder’s soil borings were insufficient to
gather the amount of data needed to design a helical pile support system. As stated, it was up to
Revoli to consider whether Kleinfelder’s boring logs provided sufficient data to bid on
accurately and complete the Project.

In the face of such evidence, the court finds that Revoli has failed to overcome the City’s
showing that no reasonable juror could find that Revoli encountered differing subsurface
conditions and is therefore entitled to recover on that basis pursuant to the Contract Documents

or G. L. c. 30, § 39N. Flesner, 410 Mass. at 809.

 

B. Other Alleged Breaches
Revoli argues it is entitled to damages for various breaches of contract that are unrelated

to the City’s response to its claim of differing subsurface conditions. The City counters that

17summary judgment is appropriate on Revoli’s claims for breach, because the undisputed facts
reveal that Revoli has no reasonable expectation of proving any of the City’s purported breaches

at trial. See Flesner, 410 Mass. at 809. The City is correct.

 

_ Revoli argues that the City first breached the terms of the Contract Documents when the
City “jefused” to pay for the additional piles needed to pursue Option 3. Revoli suggests that as
a result of the City’s purported refusal to pay for additional piles, the City “requested” a change
from the helical support system to the end bearing support system. Revoli argues that when the
City refused to issue a change order following its purported request, it breached Paragraph

10.01 (A) of the General Conditions, The court does not agree.

' Article 10.01(A) provides that the City “may, at any time or from time to time, order
additions, deletions, or revisions in the Work by a Written Amendment, a Change Order, or a
Work Change Directive. Upon receipt of any such document, CONTRACTOR shall promptly
proceed with the Work involved . ...” There is no evidence in the summary judgment record
that would support a reasonable conclusion that the City “ordered” the end bearing pile design.
See Commonwealth v. Lopez, 451 Mass. 608, 610 (2008) (defining an “order” as a command);

Crane Const. Co. v. Commonwealth, 290 Mass. 249, 253 (1935) (whether a writing constitutes a

 

written order to perform work is a question of law). To the contrary, Palumbo’s March 30, 2011
letter to Serpa and Beshara’s Apri! 5, 2011 letter to Revoli reveal that Revoli recommended the
end beating pile system in lieu of implementing Option 3 before Beshara indicated that the City
would not pay for additional piles.

' Additionally, the summary judgment record does not contain any evidence that the City

issued a written amendment, change order, or work change directive. Undoubtedly, written

approval provisions are “onerous” and tend to slow down the work, however, uniess such a

18provision has been modified or waived, “a contractor who goes ahead without such approval
does so at his peril.” Savignano v. Gloucester Housing Auth., 344 Mass. 668, 672 (1962); see

Johnson v. Norcross Bros. Co., 209 Mass. 445, 446-447 (1911) (“The purpose of the provision

 

that the defendant shall not be held to pay anything either for changes, additions or other extra
work unless ordered in writing is plain. The provision manifestly was intended to prevent any
future controversy likely to arise as to the liability of the general contractor for work so done,
and it is a useful and reasonable provision.”).

._ C. Bad Faith

, Although Revoli has not brought a separate claim for breach of the implied covenant of
good faith and fair dealing, the court will address Revoli’s contention that the City has not acted
in good faith “in an astounding attempt to avoid paying Revoli.” Revoli avers that “[w]hen it
became clear that the helical piles could not be installed in accordance with the contract
specifications [the City] immediately started writing letters disclaiming any involvement in the
Project” and “refus[ed] to provide even the most basic direction as to how Revoli should
proceed.” The record does not contain any evidence that supports these assertions. Rather, the
evidence shows that the City typically answered Revoli’s correspondence within a day, and
repeatedly directed Revoli to the responsive provisions of the Contract Documents. Revoli does
not state what additional actions the City should have taken, nor can the court presume what they
might be.

Until filing its Motion for Summary Judgment, Revoli maintained that differing

subsurface conditions caused its damages. Kleinfelder and the City requested evidence of such,
but Revoli failed to produce any. When Kleinfelder performed its own investigation, it

determined that the Donaldson could not achieve the required torque because it had not properly

19calibrated its equipment. Paragraph 12.06 of the General Conditions provides that the contract
price will not be adjusted for delays or damages within the contractor’s control. Absent any
evidence of differing subsurface conditions, the only reasonable conclusion supported by the
evidence in the record is that the delays and damages Revoli incurred were due to factors within
its control.

’ Revoli’s assertion that the detailed nature of the Bid Specifications rendered any design
flaws outside of its control is unpersuasive. When one enters into a contract “to erect a structure
in accordance with plans and specifications, which are open to inspection, without express
provision touching the subject, there is no implied warranty or agreement on the part of the
owner, in the absence of circumstances which by necessary intendment are the equivalent of a
warranty or agreement, that the work can be done according to the plans and specifications, or
that, if so done, if will be safe. It is the duty of one, who proposes to enter into a building
contract to examine the contract, plans and specifications, and to determine whether it is possible
to do the work before entering into the engagement, or to insist upon some stipulation covering
that matter. If, without a special agreement upon that point, he makes a general contract without
fraud or mutual mistake, he has bound himself to do the work. . .. Having made his contract, he
must fulfill it or bear the consequences of a breach.” N.J. Magnam Co. v. Fuller, 222 Mass. 530,
532 (1916).

The City and Kleinfelder relied on Revoli’s experience and knowledge to properly design
and install a helical pile foundation system. Per the Bid Specifications, Revoli agreed to furnish
“all necessary engineering and design services, supervision, labor, tools, materials, and
equipment to perform all work necessary to provide a helical pile foundation system . . . .”

(Emphasis added). The end bearing system was not an addition to these requirements. Compare

20Glynn v. Gloucester, 9 Mass. App. Ct. 454, 460-461 (1980) (holding that where “actions or

 

requirements” of a public agency “necessitate changes in the work as it progresses,” the public
authority must make a good faith effort to “compensate the contractor for bona fide extras”).
Based on the foregoing, Revoli has failed to demonstrate that the City’s decision not to issue a

change order was in bad faith.

D. = Statutory Relief

Revoli also contends that once the City issued “an approved deviation from the original
plans and specifications,” it was “statutorily required to issue some form of confirmatory change
order” pursuant to G. L. c. 30, § 391. Section 391 prohibits contractors from making “wilful and
substantial deviation[s]” from the specifications of a public construction contract, “unless
authorized in writing by the awarding authority or by the engineer or architect in charge of the
work.” Within thirty days following a written authorization, the awarding authority must issue a
certificate detailing the reasons for the change, whether an equitable adjustment of the contract
price was agreed upon, and if so; the amount of the adjustment. As stated, the record does not
contain any evidence that the City authorized the change from a helical pile system to an end
bearing system by a writing. It follows that G. L. c. 30, § 391 is inapplicable to the present

case." Cf. Morse v. Boston, 253 Mass. 247, 253 (1925) (“The terms and purpose of the

22 Assuming, arguendo that the end bearing system was an addition to the work, Revoli’s claim would still fail to
withstand the Defendants’ Motion for Summary Judgment because it has not set forth any evidence of
compliance with the requirements of G. L. c. 44, § 31. See Murphy v. Brockton, 364 Mass. 377, 381 (1973)
(finding contractor was bound to take notice of G. L. c. 44, § 31 requirements and denying recovery to contractor
who performed work in excess of funds appropriated for subject contract “in anticipation of a later
appropriation,” which the city council ultimately declined to authorize); Glynn, 9 Mass. App. Ct. at 461-462.

13, According to the record, the only significant difference between the helical pile and end bearing system was that
the ends of the helical piles were blunted. The court infers that the City and Kleinfelder considered this change a
“minor variation{] or deviation[]” pursuant to Paragraph 3.04(B) of the General Conditions, which permits
contractors to proceed with minor variations and deviations from the contract requirements pursuant to the
“ENGINEER’s approval of a Shop Drawing or Sample.” According to the record, Revoli provided the City a
shop drawing of its proposed end bearing foundation design before it was approved. There is nothing in the

21governing statutes constitute in themselves a restriction of the power to amend and alter a
contract once made in accordance therewith.”).

-E. Quantum Meruit

Lastly, Revoli seeks damages in quantum meruit. “Quantum meruit is a theory of
recovery, not a cause of action. It is a claim independent of an assertion for damages under the
contract, although both claims have as a common basis the contract itself. Recovery under this
theory is derived from the principles of equity and fairness and is allowed whether there is
substantial performance but not full completion of the contract.” J.A. Sullivan Corp. v.
Commonwealth, 397 Mass. 789, 793-794 (1986) (citation omitted). A contractor may recover in
quantum meruit, if it “can prove both substantial performance of the contract and an endeavor on.
his part in good faith to perform fully, and the burden is upon him to prove both. In the absence
of special exculpating circumstances an intentional departure from the precise requirements of
the contract is not consistent with good faith in the endeavor fully to perform it and unless such
departure is so trifling as to fall within the rule de minimis, it bars all recovery.” Andre v.
Maguire, 305 Mass. 515, 516 (1940). To determine whether Revoli substantially performed

under the contract, the court must “examine the evidence in reference to the entire contract, what

had been done, and what had been omitted.” Id. at 671.

As a general contractor, Revoli had a duty to use reasonable care in performing its
responsibilities under the Contract Documents. See Anthony’s Pier Four, Inc. v. Crandall Dry

Dock Engineers, Inc., 396 Mass. 818, 823 (1986). Such obligations extended to performing an

 

Contract Documents that indicates the engincer’s approval of a shop drawing or sample requires a writing. See
Lawrence-Lynch Corp. v. Department of Environmental Mgmt., 392 Mass. 681, 684 (1984) (“Minor deviations
from the plans or specification, however, may be authorized orally.”).

22analysis of subsurface conditions to acquire sufficient data upon which to design the helical piles
and installing the helical piles with properly calibrated equipment. Undisputed evidence in the
summary judgment record reveals that Revoli failed to meet these obligations. It follows that
Revoli has failed to sustain its burden to show that it substantially performed the contract and
endeavored in good faith to perform fully. Based on the foregoing, Revoli is not entitled to
recover on its claim for quantum meruit.

ORDER

For the foregoing reasons, the Defendants’ Motion for Summary Judgment is

Rosalind H. Miller
Justice of the Superior Court

ALLOWED and Revoli’s Motion for Partial Summary Judgment is DENIED.

Date: December 7, 2015

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