http://abaconstructionforumdivision12.blogspot.com/2015/09/massachusetts-decision-limits-spearin.html
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On September 2, 2015, the Massachusetts Supreme Judicial
Court issued a long-awaited opinion in Coghlin Electrical Contractors, Inc. v. Gilbane Building
Company et al., SJC Docket No. SJC-11778. Among other issues
decided in the case, the Court held that the scope of a public-awarding
authority's implied warranty of adequacy and sufficiency of the plans and
specifications is more limited in the context of a
construction-management-at-risk contract than a traditional design-bid-build
contract.
This case represents the first time that the highest court
in Massachusetts has looked at the Spearin Doctrine in the context of the
CM-at-Risk delivery method under the state's relatively
new CM-at-Risk statute (M.G.L. c. 149A, Sections 1-13). Under this law,
public awarding authorities are permitted to retain construction managers early
during the project's design phase in order to involve them in project planning
and design development.
In Coughlin, the Court recognized the
relationship between the awarding authority and a construction manager at risk
is different from the traditional relationship in the design-bid-build context,
insomuch as a construction manager may be engaged to participate extensively in
the design phase and, therefore, has an opportunity to influence the final
plans and specifications. However, despite several noted differences
between CM-at-Risk and design-bid-build delivery, the Court was not persuaded
that the implied warranty should not apply. In construing the relevant
statutory language, the Court determined that "the legislative intent in
providing the construction management at risk alternative [to design-bid-build]
was to permit the [construction manager at risk] a greater consultative role
regarding the project's design, not to eliminate the owner's responsibility for
design defects." The Court concluded that the proper scope of
the implied warranty in the CM-at-Risk context should be limited to
instances where the construction manager acts in good faith and acts reasonably
in light of its design responsibilities. Therefore, on projects where the
construction manager's design responsibilities are greater, the construction
manager will have a higher burden to show that its reliance on the defective
design was reasonable.
Links to more information regarding this case, including the
text of the opinion, all appellate and amicus briefs, as well as video of the
oral argument, are below.
