HomeMy WebLinkAbout1976-12-06 Board of Public Works Memo TYLER
MITHSs
PGROGE
REYNOLDS
YON
,�x WILLIAM dG":o.1x
CRAIG DGNAL"LL Ax SUCHMA ANDREW J,LEY
F H.uxLE. J RES 0,BELL
,"nn x.xE.xoms
ONE BOSTON PLACE
BOSTON, MASSACHUSETTS 02108 O0
OF COUNSEL
TELEPHONE 617-523-6550
December 6, 1976
Mr. E. Roger Louanis, Superintendent
Board of Public Works
Town of Reading
Municipal Building
16 Lowell Street
Reading, MA 01867
Re: DiMartino Brothers Company, Inc.
Dear Roger:
The Board has asked for my advice as to the propriety
of the Town of Reading retaining as liquidated damages the
$25,000 bid deposit in the form of a bid bond which DiMartino
Brothers Company, Inc. ("DiMartino") submitted to the Town with
the Aetna Casualty and Surety Company ("Aetna") as surety. The
Town would retain this sum due to DiMartino's failure to enter
into a contract and submit a performance bond to the Town in
accordance with its bid for the construction of Sanitary Sewer
Force Mains and Sewer Pumping Station, Contract No. 76-2.
Both DiMartino and Aetna have taken the position that the
Town is not entitled to retain such sum since DiMartino has been
unable to obtain a performance bond, and DiMartino's inability
to obtain a bond constitutes "unforseen circumstances" within
the meaning of G.L. C. 149, §44B which provides where relevant
for the return of a bidder's bid deposit.
On October 19, 1976 a hearing on this issue was held before
Joseph W. Kane, General Counsel for Department of Labor and Indus-
tries, Executive Office of Manpower Affairs, Commonwealth of
Massachusetts and he rendered an opinion dated October 20, 1976,
a copy of which is attached, which concludes "It would seem that
on consideration of all these circumstances that the entire bid
deposit be returned to the contractor, and he not be penalized
TYLER & REYNOLDS $t CRAIG -3- Mr. R. Roger LouaniS
Should the Board determine that the bid deposit should be
retained by the Town it is most likely that suit would be brought
against the Town by DiMartino and Aetna who would apparently
be joined in their suit by the Department of Labor and Industries.
I cannot at this point determine the outcome of such a suit and
the Town' s exposure if any. I must also inform the Board that I
have been advised by DiMartino' s attorney that DiMartino is the
low bidder on a $600, 000 project and that it has applied for
a performance bond with regard to that project which bond has
been denied due to the pendency of this matter with the Town of
Reading. I inferred from their attorney that if the Town's actions
prevent DiMartino from being awarded this other project that DiMartino
would seek additional damages from the Town due to the loss of
this project. I cannot at this point determine what those
additional damages might be if any and the Town's exposure to
the liability in such a suit if any. DiMartino's attorney further
informed me that if no action was forthcoming from the Board with
regard to this matter he would be forced to go to court immediately
to seek a judicial resolution.
Ve 77ruly yours
H Theodore Cohen
HTC/jrb
Enclosure