344 Mass. 195 | Mass. | 1962
Pioneer Steel Erectors, Inc. (Pioneer), an unpaid subcontractor on a highway project, petitioned under G. L. c. 258, §§ 1 and 2, to establish a claim against the Commonwealth under G. L. c. 30, § 39F.
1. The sole contention in the Commonwealth’s brief in respect of the petition under G. L. c. 258 is that such obligation as exists under G. L. c. 30, § 39F, is not of the kind for which by G. L. c. 258 the Commonwealth has consented to be sued.
We disagree. To the extent that § 39F creates an obligation it is for the payment of money for services performed or materials furnished. This is a claim of the sort which “civilized governments have always recognized.” Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 31. Nash v. Commonwealth, 174 Mass. 335, 338-340. George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 332. Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 498. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 351. Chilton Club v. Commonwealth, 323 Mass. 543, 545-546. Compare Kennedy v. Commonwealth, 182 Mass. 480; Executive Air Serv. Inc. v. Division of Fisheries & Game, 342 Mass. 356, 359.
The effect of the statute, if obligatory, is to give a subcontractor a direct right such as it would have had under a contract between it and the Commonwealth. See, for a petition under G. L. c. 258 in respect of such a contract, M. DeMatteo Constr. Co. v. Commonwealth, 338 Mass. 568.
So far as the obligation is unlike an obligation under a direct contract between the Commonwealth and Pioneer, the distinction has been considered and disregarded in the Nash case, supra. There the Commonwealth had funds of the contractor which, under Pub. Sts. c. 16, § 64, were security for payment of the subcontractor’s bill.
We think that § 39F created an obligation. The language is mandatory. The “awarding authority shall make . . . [the payment which] shall [pro tanto] discharge . . . [its obligation] to the general contractor.” We see no basis for assuming that the legislature was making only a suggestion of good practice. The legislative history tends to show the contrary.
The Commonwealth relies on the circumstance that the specified security for the payment of subcontractors is now only a surety bond under G. L. c. 149, § 29, as appearing in St. 1957, c. 682, § 1, whereas formerly by c. 30, § 39 (now repealed), the security was to be by “bond or otherwise.”
The obligation imposed by the statute is not merely, as the Commonwealth contends, to include the substantive provision in every “contract ... [in respect of certain] public building[s] or public works” as the first sentence of § 39F makes mandatory. The obligation of the awarding authority to make payments stems from the express mandate of the statute; and the inclusion of the provision in the contract assures the contractual assent of all concerned.
The legislative intent to impose an obligation is suggested by the provision for interest in G. L. c. 30, § 39K, inserted by St. 1961, c. 627, § 1. Section 39K applies to contracts for public buildings only and requires payments to contractors after specified elapsed periods and deductions including “retention for direct payments to subcontractors based on demands . . . [under] section thirty-nine F . . ..” “If the awarding authority fails to make payment as herein provided, there shall be added to each such payment daily interest at the rate of five per cent per annum .... The contractor agrees to pay to each subcontractor a portion of any such interest paid in accordance with the amount due each subcontractor.”
There is also a provision in § 39G, as amended through St. 1957, c. 360, for the payment of interest on delayed payments to contractors under contracts for public buildings and specified public works.
2. The petition for writ of mandamus was rightly dismissed in view of the remedy under G. L. c. 258 (point 1, supra).
3. The order for judgment dismissing the petition for a writ of mandamus is affirmed. The order sustaining the demurrer to the petition under Gr. L. c. 258 is reversed and an order overruling the demurrer is to be entered in the Superior Court.
So ordered.
General Laws c. 30, § 39F (inserted by St. 1954, e. 609, as appearing in St. 1956, e. 677, § 1) provides in pertinent part as follows: “Every contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building or public works by the commonwealth . . . when the amount involved is more than five thousand dollars . . . shall contain the following in its entirety: Within ten days after the general contractor receives payment on account of a periodic estimate of the value of the work done, he shall pay to each subcontractor the sum contained therein for the value <of said subcontractor's work, less any amount retained therefrom by the awarding authority under the terms of the general contract or in consequence of any legal proceedings or statutory liens, and less any amount due the general contractor under the subcontract. Not later than the sixty-fifth day after each subcontractor fully completes his portion of the work in accordance with the plans and specifications, the entire balance due under the subcontract shall be due the subcontractor and shall be paid to the general contractor by the awarding authority for the account of the subcontractor and in partial payment of the amount due under the general contract; provided, however, that the awarding authority may withhold from such partial payment all amounts retained by the awarding authority pending its determination that said portion of the work is satisfactory or in consequence of any legal proceedings or statutory liens. The general contractor shall forthwith pay to the subcontractor the full amount received as aforesaid from the awarding authority for the account of such subcontractor less any amount due the general contractor under the subcontract; and the awarding authority may take such steps as it may deem necessary to arrange that such amounts are paid by the general contractor to the subcontractor forthwith. If, within ten days after the aforementioned sixty-fifth day, the subcontractor has not received from the general contractor the entire balance due on the subcontract less the aforesaid amounts, the subcontractor shall give the awarding authority and the general contractor written notice of such failure to receive payment and of the amount so payable, but not paid, by the general contractor. Thereupon . . . [here follow the two sentences quoted in the text of the opinion].”
The statute required the contracting officers to ‘ ‘ obtain sufficient security, by bond or otherwise, for payment by the contractor and by all sub-contractors for all labor performed or furnished, and for all materials used in such construction . . ..”
Proposed, bills in 1954 (House 1570, House 1572, House 2528, Senate 516) either had permissive language (“may make . . . payment”) or (Ho. 2528) omitted any such provision. Senate 778 and House 2602, as reported, included the mandatory language of the enactment (House 2602 as amended).
St. 1955, c. 702, § 1, deleted the words “or otherwise” from c. 30, § 39, which was repealed by St. 1957, c. 682, § 2.