A Truly Bizarre Decision

On Monday, Judge Timoth Patrick O’Reilly rendered a head-scratching injunction in Allegheny County Court of Common Please, one that will cost Jefferson Hills taxpayers a bunch of money.

The prime plumbing contractor on the project, Wheels Mechanical, filed to have the sanitary and storm sewer portions of the site contract removed from the general contractor’s scope of work and assigned to the plumbing contract. Wheels claimed including the site utilities in the site package was a violation of the PA Separations Act. In assigning the scopes of work, Turner Construction decided to include the site utilities in the site work because of the extensive work (roughly 160 acres) and the advantage to the overall scheduling of sequencing the installation of the utilities at the time the cut and fill was done.

During three days of testimony, little evidence was brought that clearly showed how this kind of separation of scopes is done. There is ample precedent for both approaches. What wasn’t shown was any evidence that the inclusion of the site utilities with site work was in any way intended to circumvent the Separations Act, especially since the delivery method included nine separate contracts.

Finding for Wheels Mechanical, Judge O’Reilly rendered the opinion that the school district and CM had “willfully” violated the Separations Act. This language makes it more difficult for appeals and stays of the judgement prior to the appeal. That counts because O’Reilly gave Turner 10 days to get prices from Nello Construction on a credit for removing the site utilities and a bid from Wheels for the addition to its scope.

I am a proponent for abolishing the Separations Act. But in this case, the problems with the decision go well beyond the Separations Act. First, there was a Project Labor Agreement in place, which means that jurisdictional disputes were to be decided by the method agreed to in the PLA. That means the judge should not have heard the case.

More glaring is the timing of this claim. Wheels was a bidder on the project, meaning that it attended pre-bid meetings, reviewed the bidding and contract documents for months prior to bidding and signing contracts. A reasonable judge should have asked why the claim wasn’t brought forward then or during any of the months before this phase of construction reached a critical point. Wheels is an experienced K-12 contractor. The scopes of work weren’t too confusing, nor is this the first time Wheels has had the plumbing contract on a project where the general construction contractor had the site work assigned to its scope. It is likely the first $73 million project that this occurred on, I’m sure, which may have added motivation.

There was time to redress the “violation” during bidding and contract evaluation. The time lost and additional money that will be spent (if the work is priced the same as was carried in the bid, this will be the first project in recorded history) by Jefferson Hills will be punitive to the taxpayers and the students. Observers noted that Judge O’Reilly asked a number of questions during the proceedings that betrayed a lack of understanding about construction. His decision confirmed that.

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2 responses to “A Truly Bizarre Decision

  1. Regarding your post dated October 27, 2016, it baffles me that you would label Judge Timothy Patrick O’Reilly’s decision as head scratching or bizarre. Furthermore, that you would insinuate that his decision would cost the taxpayers a bunch of money.

    Judge O’Reilly is a senior judge with decades of experience, who earned his law degree from Yale University. I think it is safe to assume that he is qualified to make a decision concerning a law that is over 100 years old.

    Judge O’Reilly did ask appropriate questions during the three days of testimony which included statements from the Chief Plumbing Inspector of Allegheny County. Never at any time, did the judge show a lack of understanding about the nuances of the construction industry. He did, however, expose the lack of knowledge that the architects, engineers, construction managers, and general contractor affiliated with this project had in regards to the PA Separations Act, the School Code, the International Plumbing Code, as well as the Allegheny County Plumbing Code.

    The fact that the Thomas Jefferson job has a Project Labor Agreement has no relevance to the Separations Act. This law was designed to protect taxpayers from being over charged for the erection, construction, or alteration of public buildings. Hence, the requirement of separate bids for each branch of work (plumbing, HVAC, and electrical), thereby preventing too many hands from being in the cookie jar. Instead, the Separations Act guarantees the contract is awarded to the lowest responsible bidder.

    The Thomas Jefferson High School Project is located in Jefferson Hills, which is located in the county of Allegheny. Allegheny County Plumbing Code dictates that building sanitary sewer, water service, as well as the storm sewer piping (when connected to a main storm sewer or combination sewer) be installed by licensed plumbers. A permit must be filed with Allegheny County along with a fee prior to installing any plumbing system. The installation of which is regulated by the Allegheny County Plumbing Code. Only licensed plumbers of Allegheny County are regulated by this code, therefore, this work cannot legally receive inspection if not installed by licensed plumbers. This code protects the health of the county residents, or in this case, more specifically, the teachers and students of Thomas Jefferson. This piping is no different than any typical home, church, restaurant, or place of business. It is a privately owned building sewer and water service running from a public sewer or water main to an individual building.

    The School Code states that all construction, reconstruction, repairs, maintenance or work of any nature upon any school or upon any school property shall be done under separate contracts.

    The International Plumbing Code (IPC) determines a plumbing system to include the water service, building sanitary and building storm sewer (regardless of termination point) serving a structure or premises. This is relevant because the state of Pennsylvania has adopted the IPC and Allegheny County has incorporated the IPC into its own code.

    The taxpayers of Thomas Jefferson paid for and expected the plumbing at their new high school to be done by licensed plumbers. The Separations Act, the School Code, the International Plumbing Code, and the Allegheny County Plumbing Code should have ensured them that they received this. Thomas Jefferson residents believed that they paid for a complete plumbing system not just a portion. Every piece of pipe installed inside the building will be installed by licensed plumbers and will be inspected by Allegheny County to ensure the safety of their children. The school district paid fixture fees for that service. Why would the plumbing located outside the building be any different? The plumbing outside the building is no less important as the plumbing inside the building. If the plumbing outside of the building is installed improperly it can adversely affect the system on the inside thereby creating an unsafe environment for their children.

    Any possible extra cost to the taxpayers that might occur is due solely to the negligence of the construction manager, architects, engineers, or general contractor, but certainly not Judge O’Reilly. This work was determined to be paid at plumber’s rate before the project started. This determination is made by the PA Department of Labor.

    Judge O’Reilly’s decision should be described as just, fair, accurate, and long overdue, but certainly not head scratching or bizarre. The only thing that is head scratching concerning this case is the defiant disregard for the law displayed by many of the people involved.

    Respectfully submitted by:

    Regis Claus, Executive Director, Mechanical Contractors Association of Western PA
    Martin O’Toole, Business Manager, Plumbers Local Union #27
    Edward Bigley, Business Representative, Plumbers Local Union #27

  2. if you think the plumber can put the site utilities in as efficiently as nello, or for the SAME money, you’re nuts.

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