Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1429 Appeals Court MELLO CONSTRUCTION, INC., vs. DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol. June 4, 2013. ‑ December 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Public Works, General contractor. License. Governmental Immunity. Damages. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on July 25, 2007. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant. GRAHAM, J. The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1] We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background. From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2] In October, 2004, Mello submitted its annual application for certification. See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15. On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3] See G. L. c. 149, § 44D(4). As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations. See ibid. On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons: (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4] Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5] See ibid. In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6] On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]