Petricca Construction Co. v. Commonwealth

¶1(concurring). I have no quarrel with the majority opinion. I write separately because, once again, I observe the blatant disregard of the law by an agency of the Commonwealth and an apparent lack of competence on the part of that agency’s deputy chief counsel.1 The tortured and lengthy history of this case’s journey through the legal system is just one more embarrassing monument to wrongheaded lawyering.2 Instances such as this serve to decrease the public’s confidence in government agencies and our public servants.

¶2The ruling by the Department of Labor and Industries (DOLI) was clear, concise, and correct: There was no need to rebid, as the “public interest” was not adversely affected, and “the contract should [have been] awarded to Petricca,” the entity whose bid had not been deemed informal and was lower than the Highway Department’s engineer’s estimate. Instead, the department chose to flout the DOLI determination and to rebid the project. That ill-advised decision spawned this lengthy, costly, and in my view, unnecessary, litigation, creating in its wake “dark suspicions” that “something is amiss” in the administrative process. Cf. Greco v. Suffolk Div. of the Probate and Family Ct. Dept., 418 Mass. 153, 157-158 (1994).

¶3*402I close as I have so often with the same sermon: Litigation should be a last resort, not the first option. It seems all too often to be the only weapon in the government attorney’s arsenal. Rational thought and wise counseling are available at far less expense; they appear not to have been used by the Highway Department’s legal staff in this case. Government lawyers must step up and consider the ethical, as well as the practical, consequences of their respective agencies’ actions. See Lovell v. Superintendent, North Central Correctional Inst., 26 Mass. App. Ct. 35, 41 (1988) (Brown, J., concurring). They owe their client, the public, and the profession nothing less than that. Lawyers for the government must never forget that, in the performance of official duties, their oath and the canons of ethics are the paramount imperatives of the profession, not merely words mouthed perfunctorily at the time they are sworn in as members of the bar.