492 Mass. 676
Mass.2023Background
- MassDOT issued two Requests for Responses (2011, 2014) seeking on-call professional engineering field surveying services for "general highway and bridge projects" in District Three. Firms were selected solely on qualifications under G. L. c. 7C, § 58; pricing was negotiated only after selection.
- MassDOT did not request prevailing wage schedules from the Department of Labor Standards (DLS) nor include prevailing wage requirements in the contracts; contracts set hourly rates MassDOT would pay to BSC and a not-to-exceed labor cost limit, but did not specify wages BSC must pay employees.
- BSC supplied survey crews (including plaintiffs Metcalf and Theurer) who performed field surveying on about thirty projects; some contractor-employed surveyors on the same projects were paid statutory prevailing wages.
- Plaintiffs sued BSC under the Prevailing Wage Act (G. L. c. 149, §§ 26-27H), alleging they were paid less than the prevailing wage; BSC filed a third-party complaint against MassDOT seeking indemnification.
- The Superior Court granted summary judgment for BSC and MassDOT on the ground MassDOT had not sought a DLS wage determination or incorporated a schedule; the Supreme Judicial Court affirmed on the independent ground that § 58 professional services contracts are not "contracts for the construction of public works" covered by the Prevailing Wage Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Prevailing Wage Act applies to MassDOT's § 58 professional services contracts for field surveying | Theurer/Metcalf: work was identical to construction labor; therefore Act applies regardless of procurement form | BSC/MassDOT: § 58 professional services contracts are not contracts "for the construction of public works" and procurement under § 58 (qualifications-based, post-selection pricing) is incompatible with the Act | Held: Act does not apply; § 58 contracts untethered to a specific public works project are outside the Prevailing Wage Act; summary judgment affirmed |
| Whether agencies must use prevailing wage rates to set compensation for § 58 consultants | Plaintiffs: agency should select on qualifications then set consultant compensation using prevailing wage rates | Defendants: § 58 requires selection on qualifications and permits agency to negotiate compensation based on reasonableness; no requirement to adopt DLS rates for consultant pay or to pass prevailing wage obligations to consultant | Held: § 58 procedure is incompatible with Act; agency negotiation under § 58 governs compensation determination, not DLS rates |
| Whether retrospective, fact-specific inquiry into each employee's duties governs applicability | Plaintiffs: entitlement should be determined by the nature of the work actually performed (similar to construction labor) | Defendants: Act anticipates DLS rates set prior to contract award; retrospective inquiry is impractical and inconsistent with statutory scheme | Held: Court rejects a retrospective work-by-work test as inconsistent with Act's pre-award wage-determination framework |
| BSC's third-party indemnification claim against MassDOT | BSC: MassDOT's procurement failures (not asking DLS) could expose MassDOT to liability under the Act | MassDOT: § 58 contracts are not governed by the Act; no indemnity exposure | Held: Summary judgment for MassDOT affirmed because § 58 contracts are not covered by the Prevailing Wage Act |
Key Cases Cited
- Construction Indus. of Mass. v. Commissioner of Labor & Indus., 406 Mass. 162 (1989) (Prevailing Wage Act requires DLS to set wage rates for each public works job prior to awarding a contract)
- Marsh v. Massachusetts Coastal R.R., 492 Mass. 641 (2023) (Act prevents awarding contracts that rely on artificially low labor costs by requiring prevailing wage use in bids)
- Donis v. American Waste Servs., LLC, 485 Mass. 257 (2020) (Prevailing Wage Act bars contractors from undercutting customary nonpublic contract rates when performing public work)
- Mullally v. Waste Mgt. of Mass., Inc., 452 Mass. 526 (2008) (agency interpretations are entitled to deference when consistent with statutory language and purpose)
- Associated Subcontractors of Mass., Inc. v. University of Mass. Bldg. Auth., 442 Mass. 159 (2004) (public construction contracts are generally subject to competitive bidding requirements)