Appeals Court of Massachusetts

Case no. : 25-P-1021
Date filed: May 15, 2026

A Massachusetts appellate court has said that filed sub-bids for trade work on public projects must be based on sections of the contract specifications. Those specifications may reference drawings that require additional out-of-trade work.

The town of Hingham was planning to build a public safety facility. In accordance with the Massachusetts filed sub-bid statute, G. L. c. 149, section 44F, the town solicited bids for various categories of trade work. Costa Brothers Masonry Inc. submitted the low masonry bid. Colantonio, Inc., the low bidder on the general contract, entered into a masonry subcontract with Costa for $2,417,000. The subcontract incorporated the masonry section of the contract specification, which referenced listed drawings depicting masonry work, including Drawing L-704.

As the work progressed, Colantonio directed Costa to furnish and install stone veneer on the masonry site walls, granite caps, and a cast stone entry sign. Costa said these site improvements were not included in the masonry work. The town had not solicited sub-bids for site improvement work because that was not one of the trades stipulated in the statute. The masonry specifications did not mention site improvements. Costa asked the town to issue a change order adding the site improvements to the masonry work, but the town refused.

Costa performed the disputed work under protest and sued the town and Colantonio for payment. The defendants responded that the site improvements were depicted on Drawing L-704, which was incorporated by reference into the masonry specifications. A trial judge granted declaratory judgment in favor of the town and judgment on the pleadings in favor of Colantonio. Costa appealed.

The Appeals Court of Massachusetts said the filed sub-bid statute defines trade work according to separate sections of the contract specifications. The work is also described by “number[ed] sheet[s] of plans” listed under each section of the specifications. The town and general contractor alleged that Drawing L-704, expressly referenced in the masonry specs, depicted the site improvements in question. Unfortunately, the drawing had not been entered into the record, and the appellate court did not have the drawing in front of it.

Without the drawing in the record, the court could not determine whether there was an error, latent or patent, in the masonry specifications with regard to the disputed site improvements. Without a determination of ambiguity in the contract documents, the court could not rule on whether Costa should be allowed to introduce evidence of trade custom. Consequently, the court vacated the judgments in favor of the town and Colantonio and remanded the matter to the trial court.

“By this remand, we do not suggest that this type of dispute cannot be resolved at the pleading stage. The problem here is with the record, not the law. Costa attached only some of the relevant bidding materials as exhibits to its complaint: i.e., the masonry specifications but not Drawing L-704 referenced therein.”

Out of necessity, specifications commonly incorporate drawings by reference. Ideally, drawings are segregated by trade, but not always. The question here is whether the site improvements were included in the masonry subcontractor’s scope of work or separate, in which case the general contractor should have hired a separate subcontractor to perform that work.

The court provided some practical advice in its opinion: “Although Costa could have facilitated the more efficient resolution of this case by providing a full record in support of its complaint, it was not required to do so…. For their part, the defendants could have attached the missing materials to their motions but did not.”

Participants: No attorneys of record listed.
Before: Judges Neyman, Hershfang, and Toone
Opinion by: The full court.
Outcome: Judgments of trial court vacated; matter remanded

Source: Please click here to read the complete opinion.