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A. Bonfatti & Co. v. Town of Rockport
Citations: 12 Mass. App. Ct. 797; 429 N.E.2d 75; 1981 Mass. App. LEXIS 1289
Court: Massachusetts Appeals Court; December 17, 1981; Massachusetts; State Appellate Court
Under G. L. c. 30, § 39K, a public body is required to pay a contractor the final payment within sixty-five days after the contractor has fully completed the work. The town of Rockport is deemed liable for the remaining balance of a construction contract, as its engineer had approved the final payment requisition without any evidence of bad faith or errors in law. The plaintiff, A. Bonfatti Co. Inc., entered into a contract with Rockport on August 22, 1974, for constructing a water pollution control plant, with a total contract price of $2,641,828.98, leaving an outstanding balance of $32,049.02 after payments. The town had engaged Whitman and Howard, Inc. as the engineer to oversee the project, including approving payment requisitions. Bonfatti submitted its final payment request on October 27, 1977, which was approved on November 17, 1977; however, the town failed to make the payment within the mandated sixty-five days or to identify any unsatisfactory work. Subsequently, Bonfatti filed a complaint for the unpaid balance. In its defense, the town claimed the pollution plant had serious operational issues, estimating remediation costs exceeding $1 million, arguing that this constituted a material dispute of fact that should preclude summary judgment. The statute emphasizes prompt payment and stipulates that a certificate from the architect confirming substantial completion is conclusive for payment purposes. The engineer's endorsement of Bonfatti's final requisition certifies that the work was completed, establishing Bonfatti's right to payment of the remaining balance. The town failed to challenge this certification, lacking any evidence of bad faith, fraud, or legal error by the engineer. The judge's decision to grant summary judgment was appropriate, as the town did not comply with the statutory procedure outlined in G. L. c. 30, § 39K, which requires timely notification of any claims regarding incomplete work within sixty-five days of the final payment request. The town's assertions about inadequacies in the pollution plant were not raised within this timeframe, and no informal or formal communication was made to Bonfatti regarding these grievances. The town could have directed the engineer to withhold final payment if it had specified the defects and estimated costs of rectification, and failure to do so precludes raising completion issues after the statutory period. Compliance with statutory requirements is crucial to ensure prompt final payments and maintain public construction efficiency. The judgment against the town is affirmed, with further interest on the judgment to be assessed per § 39K. The engineer acted as the architect for this project, and although third parties were involved, the summary judgment was partial. The town claimed timely notification regarding unsatisfactory work; however, the engineer's approval of the final requisition superseded earlier communications about the aerators' conditional acceptance.