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Celco Construction Corp. v. Town of Avon

Appeals Court of Massachusetts, Norfolk

March 2, 2015

Celco Construction Corp.
v.
Town of Avon

Argued October 8, 2014

Civil action commenced in the Superior Court Department on October 22, 2010.

The case was heard by Patrick F. Brady, J., on a motion for summary judgment.

Raymond S. Ewer for the plaintiff.

Doris R. MacKenzie Ehrens for the defendant.

Present: Green, Rubin, & Agnes, JJ.

OPINION

[26 N.E.3d 203] Green, J.

In its successful bid to perform work for the defendant town of Avon (town) on a water main extension project, the plaintiff, Celco Construction Corp. (Celco), assigned a unit price of $0.01 as its charge to excavate each cubic yard of rock from the project site. That price was substantially lower than Celco's actual cost to remove each cubic yard of rock; Celco constructed its bid based on its belief that the amount of rock actually on site would be considerably less than the unverified estimate indicated in the contract bid documents, so that its low unit price would give it a competitive advantage when compared to other bidders who assigned a unit price to rock removal that more closely

Page 133

approximated the actual cost.[1] When the amount of rock turned out to exceed the estimate by more than 1,500 cubic yards, Celco sought an " equitable adjustment" in the contract price to recover its increased [26 N.E.3d 204] costs for rock removal. See G. L. c. 30, § 39N. The town refused Celco's request, Celco filed a complaint in the Superior Court, and a judge of that court allowed the town's motion for summary judgment. Celco appealed, and we now affirm the judgment.

Background.

We summarize the undisputed facts appearing in the summary judgment record relevant to Celco's claim of entitlement to an equitable adjustment in the contract price.[2] In 2008, the town solicited bids to perform work on a project for the installation of water mains and associated reconstruction of roadways disturbed during such installation. Celco submitted a bid and was awarded the contract. Celco's bid included unit prices for various elements of the work including, as relevant to its claim for equitable adjustment, a specified unit price of $0.01 per cubic yard for excavation and disposal of rock from the project site.[3] Next to the line item for that element of the work, under the heading " Estimated Quantity," the bid documents specified " 1000* cu. yd." A legend at the bottom of the page explained that the asterisk denoted an " [i]ndeterminate quantity assumed for comparison of bids." [4] Celco and the town entered into a contract for the work on April 6, 2009.

During its performance of the work, Celco discovered that the quantity of rock requiring removal substantially exceeded the 1,000 cubic yards estimated in the bid documents for purposes of bid comparison. On August 11, 2009, Celco requested an increase in its contract unit price for rock removal from ...


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