Revoli Construction Co., Inc. v. City of Worcester.

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

24-P-1215

REVOLI CONSTRUCTION CO., INC.

vs.

CITY OF WORCESTER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Revoli Construction Co., Inc. (Revoli) brought this action

against the city of Worcester (city), alleging that the city

violated the public bidding laws, G. L. c. 30, § 39M, in bad

faith by rejecting Revoli's bid for the Route 20 sewer extension

project in that city (project). Following a trial in the

Superior Court, a jury found that the city acted in bad faith

and awarded Revoli $3 million in lost profits. On appeal, the

city argues that (1) the trial judge should have instructed the

jury on the presumption of good faith, (2) the trial judge erred

in denying the city's motions for a directed verdict and a

judgment notwithstanding the verdict, and (3) the evidence at
trial was insufficient to support the damages award of $3

million in lost profits. We affirm.

Background. In reviewing a judgment notwithstanding the

verdict, "we consider the facts and inferences therefrom in the

light most favorable to the plaintiff to determine if '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 plaintiff.'" Phelan v.

May Dep't Stores Co., 60 Mass. App. Ct. 843, 844 (2004), quoting

Stapleton v. Macchi, 401 Mass. 725, 728 (1988). We recite the

facts in that light, reserving certain details for discussion of

specific issues.

In August 2017, Revoli submitted a bid for the project.

Mark Elbag, the city's director of engineering, and Antonio da

Cruz, a vice-president at Tighe & Bond, Inc. (Tighe & Bond), an

engineering firm,1 were present at the bid opening for the

project. Though neither Elbag nor da Cruz had firsthand

experience with Revoli they had a conversation at the bid

opening in which at least one of them raised concerns about

Revoli's being difficult to work with.2

1 The city hired Tighe & Bond to act as an engineer for the
project. Tighe & Bond's duties included evaluating the bids the
city received.

2 Elbag testified that da Cruz told him that "[h]e had
concerns about Revoli," related to "general trouble through the

2
Revoli was the low bidder on the project. That same

morning, Elbag sent an e-mail message to Paul Moosey, the city's

commissioner of public works and parks, to inform him that

Revoli was the low bidder. Moosey, who also had no firsthand

experience with Revoli, responded, "What else for bad news."

Later that day, da Cruz emailed his colleagues at Tighe & Bond,

writing that the "[c]ity doesn't want Revoli so we're going to

inquire about Chicopee's approach to baring [sic] them."

Following these communications, Tighe & Bond began its

review process, which involved contacting cities and towns that

the bidders had previously worked with, filling out evaluation

forms, and drafting a recommendation letter to Moosey. The city

requested that the recommendation letter evaluate the bid

information for the three low bidders, which were Revoli, P.

Gioioso & Sons, Inc. (Gioioso), and RJV Construction Corp.

(RJV). Tighe & Bond's recommendation letter ultimately

concluded that "Revoli has not demonstrated that they are the

lowest responsible and eligible bidder." More specifically, the

letter opined that Revoli did not have the requisite experience

and ability to complete a construction contract as large as the

project. The recommendation letter also summarized Revoli's

construction process." Da Cruz testified that Elbag "voiced
concerns about Revoli."

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reference evaluations and found that "many contacted references

indicated a propensity to excessive change orders, unreasonable

change order requests, litigation and some would not recommend

Revoli for a project with difficult construction." Notably, the

recommendation letter contained no negative reference

information about the second and third lowest bidders -- Gioioso

and RJV.

After Tighe & Bonde completed its review, Moosey

recommended to the city manager that he reject Revoli's bid and

award the project to Gioioso, which the city manager did.

Discussion. 1. Jury instruction on presumption of good

faith. The city first argues that the trial judge erred by not

instructing the jury on the presumption of good faith and by not

applying the presumption in his denial of the city's motions for

a directed verdict and judgment notwithstanding the verdict. We

disagree.

"When reviewing jury instructions to which there has been

an objection, we conduct a two-part test: whether the

instructions were legally erroneous, and (if so) whether that

error was prejudicial" (quotation and citation omitted). Main

v. R.J. Reynolds Tobacco Co., 100 Mass. App. Ct. 827, 834

(2022). "In examining whether an instruction adequately

explain[s] the applicable law, we consider the adequacy of the

instructions as a whole" (quotations and citations omitted).

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Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 194 (2021).

"An error in jury instructions is not grounds for setting aside

a verdict . . . unless the result might have differed absent the

error." Id., quoting Blackstone v. Cashman, 448 Mass. 255, 270

(2007).

To be sure, public officials are presumed to act in good

faith. See Nantasket Beachfront Condominiums, LLC v. Hull

Redev. Authority, 87 Mass. App. Ct. 455, 464 (2015). But "a

presumption, using the word in its technical and proper sense,

can have no operative effect unless it assists the party having

the burden of proof." Epstein v. Boston Hous. Authority, 317

Mass. 297, 302 (1944).

Here, the presumption of good faith in favor of the city

had no operative effect because Revoli always had the burden of

proving that the city acted in bad faith. See Modern Cont.

Constr. Co. v. Massachusetts Port Authority, 369 Mass. 825, 828

(1976) (bidder bears burden of proving awarding authority "acted

in bad faith or in an arbitrary or unreasonable manner").

Instead, the presumption was "merely a restatement that the

burden of persuasion . . . from the outset" was on Revoli

(quotation and citation omitted). General Elec. Co. v.

Assessors of Lynn, 393 Mass. 591, 598 (1984). Thus, it was not

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legally erroneous for the trial judge not to instruct the jury

on the presumption of good faith.3

2. Motions for directed verdict and judgment

notwithstanding the verdict. "The denial of a motion for

directed verdict or a motion for judgment notwithstanding the

verdict both present questions of law reviewed under the same

standard used by the trial judge." O'Brien v. Pearson, 449

Mass. 377, 383 (2007). In reviewing these motions, we "construe

the evidence in the light most favorable to the nonmoving party

and disregard that favorable to the moving party." Id. "The

verdict will be upheld if it may be determined that 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 plaintiff" (quotation and

citation omitted). Sullivan v. Five Acres Realty Trust, 487

Mass. 64, 68 (2021).

3 Because Revoli's burden was unaffected by the presumption
of good faith, we also reject the city's argument that the trial
judge erred by not applying the presumption in his review of the
city's motions for a directed verdict and judgment
notwithstanding the verdict. The trial judge only had to
determine whether, in the light most favorable to Revoli, there
was sufficient evidence for the jury to draw a reasonable
inference that the city acted in bad faith. See O'Brien v.
Pearson, 449 Mass. 377, 383-384 (2007). As discussed infra, the
evidence was sufficient for the jury to find bad faith.

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"Bad faith is a 'general and somewhat indefinite term' that

goes beyond 'bad judgment' or 'negligence,' suggesting 'a

dishonest purpose or some moral obliquity,' a 'conscious doing

of wrong,' or a 'breach of a known duty through some motive of

interest or ill will.'" Buffalo-Water 1, LLC v. Fidelity Real

Estate Co., LLC, 481 Mass. 13, 25-26 (2018), quoting Spiegel v.

Beacon Participations, Inc., 297 Mass. 398, 416 (1937). "In the

context of State action, [bad faith] includes the use of an

otherwise lawful power for an improper purpose." Judge

Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of

Developmental Servs., 492 Mass. 772, 790 (2023). See Pheasant

Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771,

777-780 (1987) (taking of land for public park pursuant to town

meeting vote was invalid where manifest purpose behind taking

was to block low or moderate income housing); Northeast

Reclamation Corp. v. Wareham, 54 Mass. App. Ct. 564, 566 (2002)

(jury's finding of bad faith supported by evidence of "town's

pretextual rejection of the plaintiff's bid because of threats

of litigation made by an ineligible bidder").

The public bidding laws establish "an honest and open

procedure for competition for public contracts and, in so doing,

places all general contractors and subbidders on an equal

footing in the competition to gain the contract." Interstate

Eng'g Corp. v. Fitchburg, 367 Mass. 751, 758 (1975). "[A]n

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essential element of the equal footing principle not only

requires that bidders have the opportunity to bid in the same

way, but mandates that bidders bear the same risk of rejection"

(emphasis added; quotation and citation omitted). Petricca

Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 397 (1994).4

Here, in the light most favorable to Revoli, there was

ample evidence from which the jury could infer that the city

acted in bad faith in rejecting Revoli's bid. First, at the

time of the bid opening, neither Moosey nor Elbag nor da Cruz

had firsthand experience with Revoli. Second, just hours after

bids were opened, da Cruz sent an e-mail message to his

colleagues at Tighe & Bond stating that the "[c]ity doesn't want

Revoli so we're going to inquire about Chicopee's approach to

baring [sic] them," and that Moosey wanted Tighe & Bond "to look

into the possibility of throwing out Revoli." Moosey also left

a voice message for the vice-president of another engineering

firm, saying that "he has heard Revoli is a poor contractor and

wanted some references to call so he could build a case to

reject them." Third, Tighe & Bond omitted from its

4 In arguing that the city did not act in bad faith, the
city relies on bid protest decisions from the Attorney General,
but these decisions "carry no precedential weight" because "they
arise from the Attorney General's prosecutorial, rather than her
adjudicative, function." Fordyce v. Hanover, 457 Mass. 248, 257
(2010).

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recommendation letter several positive reviews it received for

Revoli while highlighting negative reviews it received for

Revoli.5 Tighe & Bond's recommendation letter also did not

mention that Gioioso had twenty-two Occupational Safety and

Health Administration violations from 2007 to 2017, whereas

Revoli only had two violations in that same time period.

In the light most favorable to Revoli, the jury could have

reasonably concluded that the city did not want to award Revoli

the project, and that the city acted in bad faith by putting its

thumb on the scale of the bid review process to ensure that

Revoli would not be awarded the project. Regardless of whether

the city's concerns about Revoli were genuine, the jury could

conclude that it was an affront to the public bidding laws for

the city to use rumor, innuendo, or speculation as a pretext to

disqualify Revoli before the bid review process even began. See

Northeast Reclamation, 54 Mass. App. Ct. at 566.

3. Damages. The city argues that there was insufficient

evidence to support the jury's damages award of $3 million in

lost profits. We are not convinced.

"[T]he allowance of a motion for a new trial based upon an

inadequate or excessive award of damages, and the direction of

5 Elbag and Moosey were involved with the bid review
process.

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an addition or remittitur, rests in the sound discretion of the

judge." Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622,

630 (2009), quoting Blake v. Commissioner of Correction, 403

Mass. 764, 771 (1989). We apply a "highly deferential" standard

in assessing the evidence supporting a jury's award of damages

and will overturn such an award only if it is "clearly excessive

in relation to what the plaintiff's evidence ha[d] demonstrated

damages to be." Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10

(2020), quoting Ayash v. Dana-Farber Cancer Inst., 443 Mass.

367, 404, cert. denied sub nom. Globe Newspaper Co. v. Ayash,

546 U.S. 927 (2005).

Here, Revoli's principal, Shawqi Alsarabi, testified that

after analyzing the project plans and spending eighteen hours

over two days at the job site to become familiar with it, he

created a spreadsheet to estimate the cost of the project. The

spreadsheet consisted of each individual bid item and the

estimated labor and equipment costs. The spreadsheet also

included indirect overhead costs, which Alsarabi described as

the costs to operate and oversee the project.6 The sum of the

direct and indirect expenses in the spreadsheet amounted to

slightly over $11.3 million. Based on the bid and the

6 Example costs included the bond guaranteeing Revoli would
perform the project, a health and safety plan, the field office
trailer, and a project superintendent -- among other things.

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anticipated competition, Alsarabi estimated that a profit figure

of about $4.6 million would give Revoli a competitive price

against other bidders. Alsarabi testified that the $4.6 million

constituted a net profit of forty percent on the project, which

was lower than the profit percentage on three-fourths of

Revoli's completed projects from October 2008 to September 2018.

Adding the anticipated profit to the direct and indirect costs,

Alsarabi calculated a total bid price of $15.9 million.

Both parties also called experts to testify regarding

damages.7 Revoli retained David Ponte, a construction claims

consultant, to review and validate the veracity of Revoli's cost

estimate on the project. Ponte testified that Revoli's cost

estimate was reasonable, and that his independent cost estimate

was around $12.3 million -- or about $1 million more than

Revoli's cost estimate. The city's expert, William McConnell,

testified that a reasonable estimate of Revoli's anticipated

profit on the project was $344,000. Notably, McConnell's cost

estimate also included an additional $600,000 in field

supervision costs.

7 To the extent that the city argues Revoli needed to call
an expert to testify regarding its anticipated profits, the
city's argument is misplaced. See Spinosa, 98 Mass. App. Ct. at
11 (opinion testimony of small business owner regarding
company's value was admissible where owner was sufficiently
aware of business's contracts and liabilities).

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Considered in its totality, and with regard for the highly

deferential standard of review, we conclude that this evidence

was sufficient to allow the jury "to arrive at a reasonably

approximate estimate of damages." Brewster Wallcovering Co. v.

Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 609

(2007). While the jury did not entirely agree with either

Revoli's profit figure of $4.6 million or the city's profit

figure of $344,000, the testimony of Alsarabi, Ponte, and

McConnell provided an "adequate factual basis to support" the

jury's award of $3 million in net profit. Spinosa, 98 Mass.

App. Ct. at 11. Thus, the jury's award of $3 million in lost

profit was not "clearly excessive in relation to what [Revoli's]

evidence ha[d] demonstrated damages to be" (citation omitted).

Spinosa, supra at 10.

Judgment affirmed.

By the Court (Blake, C.J.,
Henry & Hershfang, JJ.8),

Clerk

Entered: May 8, 2026.

8 The panelists are listed in order of seniority.

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