Broken promises; Contractor racks up failed projects. (2024)

Byline: Susan Spencer

For Duncan G. Leith of Holden, hearing about Sutton's battlewith TLT Construction Corp. over its $42 million middle/high schoolbuilding project was a school construction nightmare redux.

The former Wachusett Regional School District Committee chairmanhad gone through similar turmoil a decade ago, after Wakefield-based TLTConstruction had been awarded a contract for additions and renovationsto Wachusett Regional High School in 2004. That contract started at$51.6 million but ballooned with $11 million in cost overruns and nearlyhalf a million in legal fees.

The renovated school opened in 2008, two years behind schedule.

In December 2008, after mediation, the school district settled withTLT to complete the project for $6.2 million.

In Sutton, selectmen placed a claim on TLT's performance bondlast September and terminated TLT's contract in October. BraitBuilders Corp. of Marshfield was brought in this spring to complete theproject, which is expected to be ready by April 2015, nearly a yearlate.

TLT has sued the town for wrongful termination and related claims.

The same scenario also played out at Norfolk County AgriculturalHigh School in Walpole and elsewhere: Contracts were awarded to TLT, thelowest eligible bidder, which ultimately didn't deliver. But legalmaneuvering by TLT hid its controversial past from bid submissions.

TLT representatives could not be reached for comment on this story.Voice mailboxes at the company were full, and an email did not receive aresponse.

Local officials want to know how this contract-award fiasco cancontinue to happen and what can be done to prevent it from happeningagain.

"When I hear about other towns, I say, 'You'rekidding me.' I can't believe they (TLT) are still gettingcontracts,'' Mr. Leith said in an interview. "Ican't figure out how they can keep going.''

Town volunteers who are involved in capital projects saythey're hamstrung by public construction laws that require them toselect the lowest eligible and responsible bidder.

While determining the lowest bidder is a matter of comparing listedcosts, and eligibility should be a simple check of whether thecontractor meets minimum state standards, some question whether statecertification is enough to weed out the bad actors.

The standard becomes even murkier for "responsible''bidder, hinging on legal interpretations of fraud, reportable litigationand under what terms a contractor must report terminated contracts.

In TLT's bid submission to Sutton in 2011, it reported thatnone of the general contracts it had in the previous five years wasterminated by the awarding authority before completion, despite severalheated but mediated partings of way, including with Wachusett.

Contractors often negotiate the definition of termination insettlements, too, and the awarding authority agrees, to get the projectcompleted.

When New Hampshire's Department of Administrative Servicessevered ties with TLT last October from work on a National Guardtraining facility in Pembroke and prohibited TLT from bidding in NewHampshire for one year, the settlement stated that it was a"termination for convenience'' and could not becharacterized as any sort of decertification or termination for cause.

Similarly, in a response to a bid protest with Sutton from BaconConstruction Co., which claimed TLT did not list all current or recentlitigation, TLT's lawyers said that it did not have to reportvoluntarily settled disputes.

"They know the legal loopholes and how to work withit,'' Mohammed Khan, administrator for the MontachusettRegional Transit Authority, said after MART terminated TLT'scontract this spring for a commuter parking garage in Leominster."The state should be stepping forward with these people.They're obviously in the business of making money by not doingthings.''

"With someone with such a checkered past, how does the stateallow someone like TLT to keep its certification and get contracts? Tome, it's ludicrous,'' said former Sutton SelectmanRichard Hersom. "We're not construction experts. There aresome really intelligent, good people on the (School Building)committee... but it's a volunteer position. They're entrustedwith overseeing a nearly $60 million project. It doesn't make senseto me.''

Legislation introduced in the last two sessions by state Sen.Michael O. Moore, D-Millbury, would tighten the definition of fraud instate public construction bid laws. The bill passed the Senate bothtimes but its companion bill this session, H. 2805, introduced by Rep.Ann-Margaret Ferrante, D-Gloucester, is still in the House Ways andMeans Committee.

The bill would generally define fraud as something intended tomislead the average person. Mr. Moore said he filed it in response to a2010 state Supreme Judicial Court decision, which ruled that to beconsidered fraud, a misleading statement had to actually be the decidingfactor in a contract award.

"A lot of my concern is that any awarded contractor isn'tgoing to misrepresent what they do,'' Mr. Moore said."I'm actually kind of surprised it hasn't moved. Thiscould get done in informal session (after July 31) if no one objects toit. I think it's a very simple solution to a bigproblem.''

State Rep. Ryan C. Fattman, R-Webster, said he was working withRep. George N. Peterson Jr., R-Grafton, and Rep. Kimberly N. Ferguson,R-Holden, to get the bill passed this year.

State regulators have been a watchdog for repeatedly bad practices,to a certain extent. Contractors who want to do business with governmententities must file annually for certification from the state Division ofCapital Asset Management and Maintenance. Contractors can't bid forpublic projects without a DCAMM certificate of eligibility and mustprovide updated information with each bid they submit.

As part of the certification process, regulators look atproject-evaluation forms submitted by awarding authorities. A minimumscore of 80 out of 100 is considered passing.

Regulators at DCAMM decertified TLT in August 2008 for 18 months,for repeatedly providing misleading and ambiguous information in bidsfor public construction projects.

When TLT regained its eligibility after its decertification expiredin February 2010, it won a number of high-profile contracts funded bytaxpayers, including projects in Sutton, Leominster, Walpole and Groton.

Those contracts were terminated in the past year because of delays,nonpayment of subcontractors, faulty materials and other charges. Theterminations and disputes leading up to them have brought a slew oflawsuits, just like in the mid-2000s.

DCAMM again decertified TLT on July 11, 2013, for one year, basedin part on Sutton's experience. The agency said TLT willfullymisled contract awarding authorities about claims made by subcontractorswho weren't getting paid and the company received several failingscores on project evaluations, including preliminary evaluations forongoing projects in Foxboro, Lexington, Sutton and Westwood.

TLT has not reapplied for certification since its decertificationexpired two weeks ago, according to Meghan M. Kelly, deputycommunications director for the state Executive Office of Administrationand Finance, which oversees DCAMM.

State Sen. Richard T. Moore, D-Uxbridge, said he talked toregulators about raising hard questions if TLT or similar contractorswith significant histories of problems reapply for certification.

Brian C. O'Donnell, director of labor relations for the tradeassociation Association of General Contractors of Massachusetts and aformer assistant attorney general and deputy general counsel at thestate Office of the Inspector General, said cities and towns stillneeded to do their own checking of bidders, even through a Google searchof newspaper articles.

Although cities and towns often fear lawsuits for investigating orrejecting a lowest bidder, the courts have upheld their right to gobeyond what's in the DCAMM files, he said.

One of those cases was a 2007 federal appeals court case involvingNorthboro's decision to not award its $7.7 million libraryexpansion contract to Barr, Inc., the lowest bidder.

A 2012 SJC case, Barr, Inc. v. Town of Holliston, confirmedtowns' authority in bid decisions. But a frank reference may not beenough to influence a regulator's or building committee'sdecision.

Mr. Leith said, "We did not give good recommendations to otherpeople who called, but they still got on the DCAMM (eligibility)list.''

Wendy M. Mead, chairwoman of Sutton's School BuildingCommittee and a lawyer, said, "We had concerns about TLT from thebeginning.''

After much discussion and a bid protest from the second-lowestbidder, Bacon Construction, the committee decided it wasn't worththe risk of lawsuits and delays to not select TLT.

"The problem was, they technically weren't involved inlitigation (against them) so we couldn't exclude them,''she said, referring to TLT's omission of settled cases in its bid.

Suzanne Green, superintendent-director of Norfolk CountyAgricultural High School, said schools in particular were harmed whencontractors didn't perform as promised.

The school terminated its $22 million three-phase contract with TLTin December after TLT abandoned the project. The project is expected tobe completed this summer by another contractor, Brait Builders, monthsafter TLT committed to having it done.

Contact Susan Spencer at [emailprotected]. Follow her onTwitter @SusanSpencerTG.