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-895
AVCO ELECTRIC, INC.
vs.
APC DEVELOPMENT GROUP, INC., & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, AVCO Electric, Inc. (AVCO), appeals from a
judgment entered in the Superior Court following a bench trial.
We consider whether the trial judge erred in determining that
AVCO is responsible for installing a security system where such
work was not included in the electrical specifications of the
project documents and was not part of AVCO's bid as a
subcontractor on a public works project in Gloucester. We
affirm.2
1 Harriman Associates, Inc., and Merchants National Bonding, Inc.
Following a settlement agreement, Harriman Associates, 2
Inc. is not a party to this appeal. Background. We recite the facts that the judge could have
found, reserving some facts for later discussion. See Spinosa
v. Tufts, 98 Mass. App. Ct. 1, 3 (2020). APC Development Group,
Inc. (APC) entered a valid and binding contract to provide
general contracting services for a public construction project
at 19 Harbor Loop in Gloucester (Project) for the town of
Gloucester. Merchants National Bonding, Inc. (Merchants) served
as surety and Harriman Associates, Inc. (Harriman) was the
project engineer which prepared the architectural plans and
documents for the Project. AVCO submitted a sub-bid for the
Project's electrical work to the City of Gloucester. AVCO
claims that it limited its bid to Division 26 of the
construction documents. On September 25, 2019, AVCO entered a
valid and binding statutory form of subcontract with APC for the
electrical work. On February 8, 2020, AVCO submitted a request
for information to Harriman seeking clarification whether AVCO
was responsible for the Project's security system. Harriman
informed AVCO that it was responsible for the security system.
The security system is not mentioned in Division 26 but is
referenced in the electrical drawings and in Division 28 of the
construction documents. AVCO completed the work on the security
system under protest.
On October 14, 2020, AVCO submitted an invoice for the
additional labor and materials necessary to install the
2 Project's security system. APC claimed that the security system
was within AVCO's scope of work and part of its bid for the
electrical work, and thus refused to pay the invoice.
On October 19, 2020, AVCO filed a complaint against APC,
Merchants, and Harriman in the Superior Court. AVCO brought
breach of contract and payment bond and quantum meruit claims
for failure to pay for the extra work against APC and Merchants.
AVCO also brought claims against Harriman for misrepresentation,
and violation of G. L. c. 93A, relating to the sufficiency of
the Project's specifications. AVCO moved for summary judgment
on its claims against Harriman and Harriman filed cross motions
for summary judgment on those same claims. APC and Merchants
joined in Harriman's opposition to AVCO's motion for summary
judgment and cross-moved for summary judgment against AVCO. The
judge denied all motions and cross motions for summary judgment
except Harriman's cross motion as to the c. 93A claim. On April
30, 2024, AVCO and Harriman executed a confidential settlement
agreement (settlement agreement) disposing of all remaining
claims between the two parties. On March 14, 2025, a bench
trial was held on the remaining claims between AVCO and the
remaining defendants, APC and Merchants. The parties agreed to
waive detailed findings of fact. See Rule 20(2)(h) of the Rules
of the Superior Court (2018). That rule allows the parties to
submit special questions to the judge on the elements of each
3 claim equivalent to that of a jury verdict form. The parties
also agreed to the content of a special verdict slip. The judge
concluded that AVCO was responsible for the Project's security
system and that any claims it had against APC and Merchants were
extinguished by the settlement agreement. AVCO timely appealed
therefrom.
Discussion. Where, as here, the parties agreed to waive
detailed findings of fact under Superior Court Rule 20(2)(h),
"appellate review of the court's decision and of the judgment
entered shall be according to the standard of review that would
apply to a verdict by a jury in a case tried to a jury and to
the judgment entered thereon." Rule 20(8)(b) of the Rules of
the Superior Court. In other words, the verdict, and the
judgment entered thereon, will be upheld so long as "anywhere in
the evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be drawn in favor of the [prevailing party]" (citation
omitted). Rabassa v. Cerasuolo, 97 Mass. App. Ct. 809, 814
(2020).
AVCO argues that the judge erred in concluding that it was
responsible for the security system because G. L. c. 149, § 44F,
the public bidding statute, requires that all electrical work be
4 contained in a single section of the specifications.3 In the
context of the present case, the argument is unavailing.
We agree that Division 26 does not reference the security
system, but this fact alone is not determinative under G. L.
c. 149, § 44F. The test here requires considering "the degree
of obviousness of the omission, error or discrepancy in the
specifications." John F. Miller Co. v. George Fichera Constr.
Corp., 7 Mass. App. Ct. 494, 498 (1979).4 "If the discrepancy is
subtle, so that a person furnishing labor and materials, who
examines the specifications reasonably and conscientiously,
might miss a requirement which is out of sequence or ineptly
expressed, the burden of the error falls on the issuer of the
specifications . . . ." Id. at 498. By contrast, "[w]here a
contractor or subcontractor is presented with an obvious
omission, inconsistency or discrepancy, he should at least ask
for clarification if he intends to 'bridge the crevasse in his
own favor.'" Id. at 499, quoting Beacon Constr. Co. v. United
States, 314 F.2d 501, 504 (Ct. Cl. 1963). Thus, where the
language in Division 26 is silent as to the security system we
3 Section 44F states, in part, that "specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $25,000: . . . electrical work."
4 John F. Miller Co. discusses G. L. c. 149, 44C, which is currently codified as G. L. c. 149, 44F.
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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-895
AVCO ELECTRIC, INC.
vs.
APC DEVELOPMENT GROUP, INC., & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, AVCO Electric, Inc. (AVCO), appeals from a
judgment entered in the Superior Court following a bench trial.
We consider whether the trial judge erred in determining that
AVCO is responsible for installing a security system where such
work was not included in the electrical specifications of the
project documents and was not part of AVCO's bid as a
subcontractor on a public works project in Gloucester. We
affirm.2
1 Harriman Associates, Inc., and Merchants National Bonding, Inc.
Following a settlement agreement, Harriman Associates, 2
Inc. is not a party to this appeal. Background. We recite the facts that the judge could have
found, reserving some facts for later discussion. See Spinosa
v. Tufts, 98 Mass. App. Ct. 1, 3 (2020). APC Development Group,
Inc. (APC) entered a valid and binding contract to provide
general contracting services for a public construction project
at 19 Harbor Loop in Gloucester (Project) for the town of
Gloucester. Merchants National Bonding, Inc. (Merchants) served
as surety and Harriman Associates, Inc. (Harriman) was the
project engineer which prepared the architectural plans and
documents for the Project. AVCO submitted a sub-bid for the
Project's electrical work to the City of Gloucester. AVCO
claims that it limited its bid to Division 26 of the
construction documents. On September 25, 2019, AVCO entered a
valid and binding statutory form of subcontract with APC for the
electrical work. On February 8, 2020, AVCO submitted a request
for information to Harriman seeking clarification whether AVCO
was responsible for the Project's security system. Harriman
informed AVCO that it was responsible for the security system.
The security system is not mentioned in Division 26 but is
referenced in the electrical drawings and in Division 28 of the
construction documents. AVCO completed the work on the security
system under protest.
On October 14, 2020, AVCO submitted an invoice for the
additional labor and materials necessary to install the
2 Project's security system. APC claimed that the security system
was within AVCO's scope of work and part of its bid for the
electrical work, and thus refused to pay the invoice.
On October 19, 2020, AVCO filed a complaint against APC,
Merchants, and Harriman in the Superior Court. AVCO brought
breach of contract and payment bond and quantum meruit claims
for failure to pay for the extra work against APC and Merchants.
AVCO also brought claims against Harriman for misrepresentation,
and violation of G. L. c. 93A, relating to the sufficiency of
the Project's specifications. AVCO moved for summary judgment
on its claims against Harriman and Harriman filed cross motions
for summary judgment on those same claims. APC and Merchants
joined in Harriman's opposition to AVCO's motion for summary
judgment and cross-moved for summary judgment against AVCO. The
judge denied all motions and cross motions for summary judgment
except Harriman's cross motion as to the c. 93A claim. On April
30, 2024, AVCO and Harriman executed a confidential settlement
agreement (settlement agreement) disposing of all remaining
claims between the two parties. On March 14, 2025, a bench
trial was held on the remaining claims between AVCO and the
remaining defendants, APC and Merchants. The parties agreed to
waive detailed findings of fact. See Rule 20(2)(h) of the Rules
of the Superior Court (2018). That rule allows the parties to
submit special questions to the judge on the elements of each
3 claim equivalent to that of a jury verdict form. The parties
also agreed to the content of a special verdict slip. The judge
concluded that AVCO was responsible for the Project's security
system and that any claims it had against APC and Merchants were
extinguished by the settlement agreement. AVCO timely appealed
therefrom.
Discussion. Where, as here, the parties agreed to waive
detailed findings of fact under Superior Court Rule 20(2)(h),
"appellate review of the court's decision and of the judgment
entered shall be according to the standard of review that would
apply to a verdict by a jury in a case tried to a jury and to
the judgment entered thereon." Rule 20(8)(b) of the Rules of
the Superior Court. In other words, the verdict, and the
judgment entered thereon, will be upheld so long as "anywhere in
the evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be drawn in favor of the [prevailing party]" (citation
omitted). Rabassa v. Cerasuolo, 97 Mass. App. Ct. 809, 814
(2020).
AVCO argues that the judge erred in concluding that it was
responsible for the security system because G. L. c. 149, § 44F,
the public bidding statute, requires that all electrical work be
4 contained in a single section of the specifications.3 In the
context of the present case, the argument is unavailing.
We agree that Division 26 does not reference the security
system, but this fact alone is not determinative under G. L.
c. 149, § 44F. The test here requires considering "the degree
of obviousness of the omission, error or discrepancy in the
specifications." John F. Miller Co. v. George Fichera Constr.
Corp., 7 Mass. App. Ct. 494, 498 (1979).4 "If the discrepancy is
subtle, so that a person furnishing labor and materials, who
examines the specifications reasonably and conscientiously,
might miss a requirement which is out of sequence or ineptly
expressed, the burden of the error falls on the issuer of the
specifications . . . ." Id. at 498. By contrast, "[w]here a
contractor or subcontractor is presented with an obvious
omission, inconsistency or discrepancy, he should at least ask
for clarification if he intends to 'bridge the crevasse in his
own favor.'" Id. at 499, quoting Beacon Constr. Co. v. United
States, 314 F.2d 501, 504 (Ct. Cl. 1963). Thus, where the
language in Division 26 is silent as to the security system we
3 Section 44F states, in part, that "specifications shall have a separate section for each of the following classes of work if in the estimate of the awarding authority such class of work will exceed $25,000: . . . electrical work."
4 John F. Miller Co. discusses G. L. c. 149, 44C, which is currently codified as G. L. c. 149, 44F.
5 cannot conclude, as AVCO argues, that as a matter of law AVCO
does not have to look beyond Division 26 for the portions of the
Project for which it was responsible. See Hardware Specialties,
Inc. v. Mishara Constr. Co., 2 Mass. App. Ct. 277, 283 (1974)
(G. L. c. 149, § 44F "contemplated that in doubtful cases it
might be necessary to resort to more than one section of the
specifications in order to ascertain the basic intent of the
draftsman of all of the specifications"). We are therefore left
with a question of fact as to the degree of obviousness of the
error, which we review under the highly deferential standard
discussed above.
Here, AVCO's argument fails. It is indeed preferable for
all electrical work to be contained in one section, but there
are myriad factors the judge could have relied on to determine
that the omission in Division 26 was not so subtle that AVCO was
unaware of their responsibility for the security system. See
John F. Miller Co., 7 Mass. App. Ct. at 499. The
inconsistencies and omissions in the Project's construction
documents were apparent, and the architectural documents contain
detailed references to the security system, while Division 26
does not. Indeed, the "Electrical Legend, Notes and Schedules"
plan contained a notation for a card reader in the legend and
listed card access system components, while both the First Floor
Plan Power Systems and the Second Floor Plan Power Systems plans
6 showed card reader access points. These documents were all
referenced in Division 26. Therefore, AVCO should have
recognized that the security system was part of its scope of
work. To the extent that AVCO believed its responsibility for
the security system was unclear, it had an obligation to seek
clarification before submitting its bid. Id. AVCO's
continuation sheet also contained "rough access/security" and
"finish access/security" balances which reflect payment for such
work. These entries suggest that AVCO was aware of its
responsibility for the Project's security system. Moreover,
there was evidence at trial that it is industry custom for
electricians to install the security system. See Hardware
Specialties, Inc., 2 Mass. App. Ct. at 279 (evidence of business
customs admissible to resolve duty of subcontractor). These
factors together are a "combination of circumstances" that
create a reasonable inference that AVCO was aware of its
responsibility for the security system and should have looked
beyond Division 26. Rabassa, 97 Mass. App. Ct. at 814.
7 Therefore, on the record before us we cannot say that the judge
erred.5,6
Judgment affirmed.
By the Court (Vuono, Neyman & Smyth, JJ.7),
Clerk
Entered: July 16, 2026.
5 Because we affirm on the basis of AVCO's responsibility for the security system, we need not reach the issues of costs or extinguishment of their claims.
6 All parties' requests for appellate attorney's fees are denied.
7 The panelists are listed in order of seniority.