Massachusetts SJC Examines Prompt Payment Act in Columbia Construction v. J.C. Cannistraro: Bernkopf Partner Authors REBA Amicus
The Massachusetts Supreme Judicial Court is again considering how the Prompt Payment Act (PPA), G.L. c. 149, § 29E, should operate during active construction projects in Columbia Construction Co. v. J.C. Cannistraro, LLC, a case the construction bar is watching closely. The appeal follows the SJC’s 2024 decision in Business Interiors Floor Covering Bus. Tr. v. Graycor Construction Co., Inc. and raises a fundamental question: when a payment application is “deemed approved” under the PPA because of a procedural defect, does that violation permanently eliminate an owner’s or contractor’s ability to later assert claims or offsets for overbilling, defective work, or noncompliance? The answer will shape how payment disputes are managed on active construction projects across Massachusetts.
Bernkopf partner Robert Stetson recognized the broader implications for owners, contractors, and subcontractors and filed an amicus brief on behalf of the Real Estate Bar Association for Massachusetts (REBA) and the Abstract Club. The amicus brief focuses on how the PPA functions in practice, not just in litigation. It explains that the PPA was designed to keep money moving during construction by shifting leverage at the moment payment is wrongfully withheld—primarily through the risk of suspension for nonpayment—rather than by adjudicating the merits of disputed work or imposing permanent forfeitures based on technical missteps. Most payment disputes resolve in the field, not in court, and lawmakers designed the statute to operate in real-world situations.
The amicus brief also explains that a “deemed approved” payment application triggers an obligation to pay, but not a final determination of entitlement. It notes that failure to pay can constitute a material breach that triggers suspension rights. At the same time, it preserves the ability of owners and contractors to later address overbilling, defective work, or non-code-compliant performance through ordinary contractual and common-law remedies.
Potential Impacts on Construction Projects
The SJC’s decision could have significant consequences across the construction industry. A broad forfeiture rule risks windfall payments to contractors and subcontractors for defective work or overbilling. Conversely, a rule that allows payment disputes to be cured after litigation begins risks undermining the statute’s ability to ensure prompt payment when it matters most: during construction.
Read the full amicus brief here.
Recent Coverage
Following the filing of the amicus brief, Bob Stetson was quoted by Massachusetts Lawyers Weekly. He discusses the brief and its implications for construction projects under the Prompt Payment Act. You can read the article here.
Get in Touch
If you have questions about how this case may affect current or future projects, we would be happy to discuss. Please reach out to Bob Stetson by email at rstetson@bernkopflegal.com or by phone at 617.790.3423.
