RUSSELL METCALF & another vs. BSC GROUP, INC., & others; DEPARTMENT OF TRANSPORTATION, third-party defendant.
SJC-13407
Supreme Judicial Court of Massachusetts
August 21, 2023
WENDLANDT, J.
Suffolk. May 3, 2023. Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
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Massachusetts Wage Act. Contract, For services. Public Works, Wage determination. Labor, Public works, Wages. Statute, Construction. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on September 14, 2017.
The case was heard by Christine M. Roach, J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Kristie A. LaSalle (Lou Saban also present) for the plaintiffs.
Jonathan C. Burwood for BSC Group, Inc., & others.
Kate Isley, Assistant Attorney General, for Department of Transportation.
Steven Theurer.1
BSC Companies, Inc.; and David Hayes.2
Jon C. Cowen & Michael Robertson, for American Council of Engineering Companies of Massachusetts, amicus curiae, submitted a brief.
Unlike contracts for public works construction projects governed by the Act, these contracts were not competitively bid and were not awarded to the lowest bidder; indeed, the compensation MassDOT would pay for BSC‘s professional services was not considered by MassDOT until after the agency had selected BSC in view of its expertise. Rather than specifying that BSC‘s employees would be paid at least a prevailing wage determined by the Department of Labor Standards (DLS), as is required for contracts covered by the Act, the BSC contracts -- the second of which expressly was issued pursuant to § 58 -- specified only the hourly rate and maximum total compensation that MassDOT would pay to BSC, based on MassDOT‘s own determination as to what was fair and reasonable in view of BSC‘s credentials and experience.
Concluding that the contracts are not governed by the Act and that BSC was not required to pay its employees a prevailing wage pursuant to the contracts, we affirm the Superior Court judge‘s grant of summary judgment in favor of BSC on the Prevailing Wage Act claims of its former employees, the plaintiffs, Russell
1. Background. a. Facts. “The following facts are either undisputed ‘or viewed in the light most favorable to the party against [whom] summary judgment entered.‘” HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 323 (2022), quoting Berry v. Commerce Ins. Co., 488 Mass. 633, 634 (2021).6
This case centers on two requests for responses (RFRs) issued by MassDOT. MassDOT released the first in June 2011, seeking proposals from prequalified professional services firms to provide engineering field surveying services “on general highway and bridge projects or as directed as needed,” “under the direction of the MassDOT Survey Supervisor” on an on-call basis. The selected consultant also would share responsibility with MassDOT employees for “general supervision of Survey Crews assigned to construction operations.” In connection with the RFR process, MassDOT did not ask the DLS7 to determine the prevailing wage rates for the anticipated work; no prevailing wage rate schedule was provided to firms responding to the RFR.
Responding firms were to submit their qualifications for the work and were to be selected exclusively on that basis.8 The firms were not asked to submit, and did not submit, information regarding
Following presentation of BSC‘s qualifications, MassDOT selected BSC to provide the requested specialized consultant services to the agency; the financial terms of the deal, including proposed compensation rates to be paid to BSC, were negotiated thereafter, based on a consideration of BSC‘s qualifications and MassDOT‘s determination of reasonableness and fairness.9 The parties then executed the first contract, which governed their relationship from 2012 to 2014.10
In June 2014, before the end of the first contract, MassDOT released the second RFR, seeking proposals from prequalified firms to provide essentially the same type of engineering field surveying services as sought under the first RFR. The process was, in all relevant respects, the same. As with the first RFR, MassDOT did not ask DLS for a prevailing wage schedule, and none was provided to firms responding to the RFR. Again, MassDOT selected BSC for the work based on its qualifications, negotiating BSC‘s compensation thereafter following the same process. The parties then executed the second contract, which governed their relationship from 2015 to 2017.
Neither contract specified that the services were to be rendered in connection with a particular public works construction project; instead, BSC agreed to provide its engineering field surveying services on “general highway and bridge projects or as directed as needed” in “District Three” over a period of years.11 The contracts did not set forth a prevailing wage schedule and did not include an agreement by BSC to pay its employees based on prevailing wage rates determined by DLS; instead, the contracts specified hourly rates, and the maximum total compensation, that MassDOT would pay to BSC for its engineering field surveying services. No provision prescribed the wage amount that BSC was
Pursuant to the contracts, BSC provided two- and three-person crews of professional engineering field surveyors directly to MassDOT to perform field surveying services on various public works projects as directed by MassDOT -- one such crew comprised the plaintiffs, Metcalf and Theurer.13 The plaintiffs performed engineering field surveying services on about thirty bridge- and roadway-construction projects in District Three.
While the plaintiffs “worked under MassDOT‘s supervision, they often performed surveys requested by the on-site general contractor,” after receiving MassDOT‘s “approv[al],” and their work “directly aided in the construction process.” According to one of their MassDOT supervisors, the plaintiffs’ role at many project sites was “[t]o support construction operations with construction layout.” Field surveyors employed by contractors at some of these project sites were paid prevailing wages, as set by DLS, for performing the same or similar work.14
b. Procedural history. The plaintiffs filed an amended complaint against BSC, alleging that it violated the Prevailing Wage Act by paying them less than the prevailing wage for the work they performed. BSC filed a third-party complaint against MassDOT, essentially seeking indemnification should BSC be held liable to the plaintiffs under the Act. A Superior Court judge granted summary judgment in favor of BSC and MassDOT, on the ground that BSC was not liable under the Prevailing Wage Act because MassDOT neither sought a prevailing wage rate determination from DLS nor incorporated a prevailing wage rate schedule into the contracts.15
2. Discussion. a. Standard of review. “Our review of a decision on a motion for summary judgment is de novo.” HSBC Bank USA, N.A., 490 Mass. at 326, quoting Berry, 488 Mass. at 636.
Where, as here, we are called to construe the terms of a statute and its applicability, we begin with the statute‘s plain language. See Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 (2022), quoting Tze-Kit Mui v. Massachusetts Port Auth., 478 Mass. 710, 712 (2018) (“our analysis begins with ‘the principal source of insight into legislative intent’ -- the plain language of the statute“). “[C]ourts must look to the statutory scheme as a whole . . . so as to produce an internal consistency within the statute” (citation and quotation omitted). Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd., 483 Mass. 600, 605 (2019). Our aim when construing a statute is to construe it “in harmony with prior enactments to give rise to a consistent body of law,” if possible. Alves‘s Case, 451 Mass. 171, 178 (2008), quoting Hadley v. Amherst, 372 Mass. 46, 51 (1977). We give deference to agency interpretations in areas where the Legislature has delegated decision-making authority to the agency when the “interpretation is not contrary to the plain language of the statutes or their underlying purposes.” Mullally v. Waste Mgt. of Mass., Inc., 452 Mass. 526, 533 (2008) (opinion letter issued by DLS‘s predecessor was entitled to deference).
b. Contract for professional services. There can be no doubt that the two RFRs and subsequent contracts were issued consistent with or expressly pursuant to the procedures set forth in § 58. Section 58, which was enacted and became effective during the term of the first contract, sets forth the procedures by which certain State agencies, including MassDOT, are to procure “architectural, engineering[,] or related professional services,” defined to include, as relevant to the present case, “land surveying” professional services that are “required to be performed or approved by a person licensed, registered[,] or certified to provide such services,” and other professional services of an architectural or engineering nature or “incidental services, which members of the related professions . . . may logically or justifiably perform,” including “construction phase services.”
and the scope, complexity[,] and professional nature thereof.”
The plaintiffs do not dispute that the second contract specifically was issued pursuant to § 58; nor do they meaningfully claim that the first contract was different in scope or procured in a different manner.17 Instead, the plaintiffs contend that because they performed jobs identical to those performed by “laborers in the construction of public works,” see
By its plain terms, the Prevailing Wage Act applies to “a contract for the construction of public works.”
More importantly, the Legislature set forth a procedure for the selection of firms to provide professional services to agencies, like MassDOT, under § 58 that is incompatible with the procedures under the Prevailing Wage Act. Under the latter, “[p]rior to awarding a contract for the construction of public works,” the public official responsible for causing the public works to be constructed must provide to DLS a list of the specific jobs to be employed on the construction project; in turn, DLS then sets the prevailing wage rate for each job based on market conditions, and the agency attaches the resulting schedule to its call for bids.
Public works construction contracts covered by the Act are publicly advertised and generally are awarded to the lowest bidder. See
The Act further ensures that the contractors use the schedule in submitting their budget proposals by holding them liable to pay their employees according to the prevailing wage rates.19 In this manner, “[t]he Act is designed to avoid rewarding a contractor
[to the Commonwealth] for less than what is customarily charged by its competitors for nonpublic works contracts‘“). Indeed, the Commonwealth, by ensuring that the low bid contractor‘s proposal includes labor costs calculated using the prevailing wage, itself pays a premium to ensure that laborers on the Commonwealth‘s public construction projects are paid the prevailing wage. See Marsh, supra at 653.
By contrast, professional services firms under § 58 are selected by the agency based on the qualifications of the firms.20 The firms submit proposals that delineate the firms’ expertise and experience; no information about costs is required or considered by the agency in its selection process. See
agencies, like MassDOT, to select professional services firms solely on the basis of their qualifications, without any “formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost or any other measure of compensation.”
After a firm is selected based on its qualifications, the agency determines the costs it will pay to this most qualified firm based on the agency‘s sole determination of reasonableness and fairness. See
The plaintiffs suggest reading § 58 and the Act to require an agency to select a professional services firm based upon its qualifications and then to use prevailing wage rates to determine the firm‘s compensation. This construction is unsupported by the aforementioned process set forth in the Act.
Indeed, as discussed supra, § 58 allows the agency to determine the amount it is willing to pay the consultant based on its (not DLS‘s) determination, in its sole discretion as to what is reasonable and fair; nothing in § 58 discusses the minimum wages the consultant must pay to its employees or permits a consultant to pass any prevailing wage obligation along to the Commonwealth. Given these divergent statutory schemes, the plaintiffs’ reading is unsupported.
Thus, while field surveying work performed under a contract for the construction of a public works project requires payment of a prevailing wage,21 such work, when performed under a contract for professional services, does not. As DLS has concluded, “it is often the case that the prevailing wage requirements will apply to only one of two employees performing similar or identical tasks yet working under different types of contracts” (emphasis added). In re: Wage Determination Appeal; Central Artery/Tunnel Project; Engineering Field Survey Services Contract (MO25V), at 13 (Dep‘t of Labor & Indus. July 11, 1995).
The plaintiffs were not entitled to a prevailing wage for their work under the professional services contracts.22,23
Judgments affirmed.