COSTA BROTHERS MASONRY, INC. v. TOWN OF HINGHAM & Others.

── COSTA BROTHERS MASONRY, INC. v. TOWN OF HINGHAM & Others. ── Court: Massachusetts Appeals Court Date: May 15, 2026 Category: General NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 25-P-1021 COSTA BROTHERS MASONRY, INC. vs. TOWN OF HINGHAM & others.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiff, Costa Brothers Masonry, Inc. (Costa), filed a complaint in the Superior Court seeking declaratory relief pursuant to G. L. c. 231A, § 1, against the defendants town of Hingham (town), Colantonio, Inc. (Colantonio), and Kaestle Boos Associates, Inc. (Kaestle). Costa claimed that the defendants violated the public bid statute, G. L. c. 149, § 44F (1) (a), by requiring it to perform work not specified in the town's advertisement for bid for a public construction project known as the "New Public Safety Facility" (the project). The disputed work involved the installation of stone veneer at the site walls and an entry sign, granite cap, and cast stone. The town and 1 Kaestle Boos Associates, Inc., and Colantonio Inc. Kaestle filed motions to dismiss pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974), and Colantonio filed a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). The judge allowed all three motions and declared that Costa "is responsible for performing the Site Work under its subcontract." We affirm the dismissal of Costa's claim against Kaestle because there is no "actual controversy" between the two companies within the meaning of G. L. c. 231A. Because the record does not include key documents referenced in the subcontract between Colantonio and Costa, however, we are unable to affirm so much of the judgment as dismissed the claims against the town and Colantonio, and we therefore remand for further proceedings on those claims consistent with this memorandum and order. Background. After contracting with Kaestle, an architectural firm, to prepare plans and specifications for the project, the town solicited bids in January 2023. In addition to bids for general contractor, the town solicited "filed sub- bids" for specific classes of work, including masonry. Its solicitation directed potential bidders to "become fully acquainted with conditions as they exist, and thoroughly examine the Contract Documents" and cautioned that a bidder's failure 2 "to visit the site and to examine the Contract Documents shall in no way relieve the bidder from any obligation with regard to the bid as submitted." The deadline for filed subbids was April 13, 2023. In the project manual and specifications, the masonry scope was specified under Division 04, which listed the following specifications: 04 00 01 MASONRY FILED SUB BID** 04 20 00 UNIT MASONRY** (included in FSB 04 00 01) 04 72 00 CAST STONE MASONRY** (included in FSB 04 00 01) The masonry specifications included, in Section 1.4, a "Description of Work," which stated that the work was shown on a series of listed drawings. The drawings th