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.