The MIDDLESEX CORPORATION, INC.
FAY, SPOFFORD & THORNDIKE, INC.
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Kaplan, Mitchell H., J.
MEMORANDUM OF DECISION ON JURY WAIVED TRIAL AND ORDER
FOR THE ENTRY OF FINAL JUDGMENT
Mitchell H. Kaplan, Justice
case was tried to the court, without a jury, for seven days
between February 14, and March 1, 2019. Eleven witnesses
testified in person and two were offered by deposition
transcript. 82 Exhibits were entered in evidence. Following
the close of evidence, the parties submitted post-trial
memoranda. Closing arguments were heard on March 29, 2019.
consideration of the evidence entered and the reasonable
inferences drawn from it, the court finds the following
facts, by a preponderance of the evidence, and makes the
following rulings. It then orders that judgment enter in the
form set out below.
case involves the construction of the Kenneth F. Burns
Memorial Bridge over Lake Quinsigamond (the Bridge). The
bridge connects Shrewsbury and Worcester along Route 9,
replacing an existing, outmoded bridge. The construction
project included both the Bridge and the roadways approaching
the Bridge from the east and west (the Project). The Bridge
consisted of two separate steel structures: one for eastbound
traffic and the other for westbound. Each was supported by a
series of steel arches. The Massachusetts Department of
Transportation (DOT) was responsible for the Project, in
effect its "owner." Construction began in 2012 and
was completed in the Summer, 2015.
plaintiff is The Middlesex Corporation (Middlesex). Founded
in 1972 as a paving contractor, by 2010 Middlesex was a
civil/heavy contracting company engaged in building roadways
and bridges. It operates in the Northeast states and Florida.
defendant is Fay, Spofford & Thorndike, Inc. (FST). FST was
founded over one hundred years ago in Boston. It is an
engineering and design firm. In 2015, following the period
relevant to this case, FST was acquired by Stantec, Inc.
Perreira is the president of Middlesex and the son of its
founder. David Socci is Middlesexâ vice president of
preconstruction. He oversaw the cost estimates used to bid
the Project. Robert Pine was Middlesexâ project executive
directly responsible for the preparation of the bid
documents, including the bid price, and then construction of
the Project. He joined Middlesex as a senior project
estimator in 2010; by the time of trial he was working for a
different construction firm. Evan McCormick reported to Pine.
He was the senior project manager, and the lead person on the
Project site during construction.
Dzengelewski was the principal-in-charge of the engagement
for FST. He was head of the structural engineering division
of FST and a member of its board. Brian Brenner was the lead
design engineer for the Project. Prior to joining FST, he was
a professor at Tufts School of Engineering, where he taught
bridge design among other courses. He had also worked with
another design firm on the Central Artery Project and other
projects. Frederick Mosely is a transportation engineer for
FST. His area of specialization is roadway design, and he was
responsible for the design of the roadways approaching and on
Teaming Agreement, the Bid, and the Contract Award
described the bid process for the Project as a "Best
Value Design-Build Procurement process." Under this
process, the DOT first selected a short list of qualified
"Design-Build Entities." Those firms that were
short-listed received a Request for Proposal (RFP). In
response to the RFP, the bidders were to submit proposals
that contained both technical responses, including further
advanced preliminary design, and a fixed price bid. The DOT
established a preliminary price estimate for the Project of
design-build approach to bridge construction was relatively
new to the DOT and part of its accelerated bridge replacement
program. Under this approach, the bidders did not receive a
final set of drawings and specifications on which to bid a
fixed price. Rather, DOT retained a design firm, in this
instance TranSystem, that prepared preliminary drawings,
referred to as sketches or, sometimes, the Base Technical
Concept, together with technical requirements for the
project. The sketches were typically intended to be 25%
complete, although that is more a conceptual description than
the result of mathematical computation. The bidders then bid
a fixed amount for both the design engineering work necessary
to complete the design as well as the costs of construction.
approached FST with a view to teaming with FST in an attempt
to win the contract for the Project. Middlesex understood
that FST had worked on a great many DOT projects in the past,
including the Big Dig, and was highly regarded by the DOT.
The parties agreed to work together and entered into an
Engineering Teaming Agreement (the Teaming Agreement or
Agreement) to memorialize their relationship.
Teaming Agreement was a written contract prepared by
Middlesex. The parties executed it effective July 19, 2010.
In the Agreement, Middlesex was identified as the
Design/Builder and FST as the Engineer. The recitals to the
Agreement explained that "the Design/Builder requires
the services of a qualified professional engineer to assist
it in preparing the proposal and thereafter, if awarded a
contract, to carry out the professional engineering services
required for completion of the Project." The Agreement
provided that the Engineer would be responsible for
organizing, formatting text and preparing the required
graphics for Middlesexâ proposal in response to the RFP.
Among many other obligations, the Engineer was to provide
professional services required for "additional
preliminary design" sufficient to enable the
Design/Builder to prepare cost estimates for the Project, but
was not required to perform additional design beyond what was
required under the RFP for a responsive proposal. The
Engineer was to be paid at an hourly rate for its work
preparing the response to the RFP up to an up-set price,
regardless of whether the Design/Builder won the bid, and
would receive an additional success fee, if the
Design/Builder was the successful bidder.
Agreement contemplated the parties entering into a
Subcontract for Design Services if the bid was successful.
This happened in this case; however, Middlesexâ claims are
all based upon an alleged breach of the Teaming Agreement.
provisions of the Teaming Agreement are central to Middlesexâ
claims and are set out here:
9.... The Design/Builder acknowledges that as a design
professional, the Engineerâs performance of its service both
pursuant to this Agreement and with regard to any services
performed as part of a Subcontract for Design Services are
subject to a professional standard of care. The
Design/Builder and Engineer agree that the applicable
standard of care for the Engineerâs services shall be that
degree of skill and care normally exercised by practicing
professional engineers performing similar services on similar
projects under similar conditions. No other representations
or warranties, whether express or implied, shall be imputed
to the Engineerâs services ...
11. The Engineer will provide its professional opinion
regarding the Design/Builderâs construction estimate for
quantities and comment on specific items of potential
quantity growth, but the Engineer shall not have risk
associated with estimate quantities and/or construction
pricing. The Engineer will prepare its own independent
estimate for use by the Design/Builder in making its
assessment of quantities. The Design/Builder acknowledges
that such estimates are based upon only limited and
conceptual design development derived from the contents and
requirements of the RFP. The Design/Builder shall verify
quantities or other information furnished by the Engineer and
shall use its knowledge and experience as a construction
professional in developing its bid and pricing for the work,
and shall include in such bid an appropriate degree of
contingency for additional cost resulting from the post-award
design development and finalization process.
did not request that prospective bidders submit Statements of
Qualifications until some time in 2011. On November 22, 2011,
Middlesex received notification that it had been shortlisted
and invited to submit a response to the RFP for the Project.
On December 2, 2011, the DOT delivered the RFPs to the
short-listed bidders, including the design sketches and
technical requirements. The RFP required that the Technical
and Price Proposals be delivered on January 20, 2012 at 2:00
PM. The delivery date was later extended to February 10,
2012. Both parties believed the period allotted for the RFP
response was very short for such a complex Project, which the
DOT and its consultants had been working on for years.
also provided that there would be an opportunity for DOT to
interview bidders to question them concerning their proposal
before the bids were opened.
parties understood that FST could only perform additional
preliminary design during the bid phase. It was paid
only approximately $300, 000 for its work during this phase,
in comparison to the $8.6 million it was paid to complete the
work under the design subcontract. FSTâs focus during the
pre-bid design work was to look for areas in which cost
savings could be achieved and where Middlesexâ design
proposal could distinguish itself from that of the other
retained sub-consultants to assist it with certain aspects of
the Bridge design. One of these firms was T.Y. Lin
International (TY Lin). TY Lin is a highly regarded design
firm that specializes in bridge design. It is principally
located on the West Coast, but had recently opened an East
Coast office. The Bridge presented unique engineering
problems. The sketches called for a series of steel arches
supporting the roadway; however, because the arch design was
quite flat, the arches did not actually perform as true
arches in resisting the lateral forces distributed to their
bases. The sketches called for the Bridge to address these
forces with a fixed steel column running across the arches.
The design team early on determined that the approach
depicted in the sketches was inadequate. The design team
adopted a "post-tensioning" system to solve this
problem, where tension was applied to lateral structural
members during construction. TY Lin had used such an approach
in the past, but the FST engineers lacked experience with it.
TY Lin recommended that the Bridge deck become a part of this
system through the use of stringers (sometimes referred to as
drag brackets) that attached the decking to the crown of each
arch. It appears that FST went back and forth about
incorporating this suggestion, and that there was some
question concerning the extent to which this design component
had to be resolved in the preliminary drawings that would be
included in the bid package. TY Lin expressed concern that
this should be brought to Middlesexâ attention both because
completion of this part of the design post-award could slow
construction and there would be additional costs associated
with it. The January 20, 2012 drawings submitted by FST to
Middlesex did not include these drag brackets. This point is
discussed further below.
January 18, 2012, Pine emailed Brenner expressing some
concern with the amount of time/money FST was spending on
Bridge design and the need to finalize the drawings that
would be included in the bid package. His email stated in
We discussed the level of detail, particularly for the steel
fabrication, at the start of the process and we think it was
pretty clear what we needed to get competitive pricing. The
vast majority of our requests were for details we expected.
We will reconsider each request carefully for here on out and
only ask the critical ones. I think the expected overrun in
costs is more attributable to the number of times we have
designed and redesigned elements of the structure. I could
also go on and on about how many times things have changed in
the design bit it is not productive nor is it our message.
Our message is we need to be done with the design now. We
need to draw a line, ...