Wednesday, March 16, 2005

Big Mess, Dig?

OK, I'm beginning to get paranoid, but that doesn't mean I'm not being followed.

Just an expression, of course, but I have a story, I've told it many times before, and with the latest news, I can't help but wonder if someone should have listened better.

Over a decade ago, I was General Counsel of the MBTA. At the time, Jim Kerasiotes was the Chairman of the MBTA Board and the Secretary of Transportation. At the time, EOTC was in charge of the Big Dig. Shortly after I left, Kerasiotes would become the head of the Turnpike Authority and would preside over his own boiling controversy over the accuracy of factual representations made in bond prospectuses --- but that is another (albeit related) story.

During 1994, I had the occasion to advertise for a position in the law department for an attorney experienced in construction contract law. I received many resumes, one of the better ones coming from an individual who was working as one of the construction contract staff attorneys for the Central Artery project. I invited him in for an interview. During the interview, I asked him a rather mundane, and obvious, question, and a strange conversation ensued. As best I can recollect, it went somthing like this:

"So," I said, "tell me what it is that you do down there at CA/T."

He looked at me queerly, and said "Can I be frank?"

"I certainly hope so, in fact, I expect it," I assured him.

"I don't do anything," he said. He looked at me, embarrassed, and almost apologetic. "That's why I'm here. I'm going crazy down there, playing solitaire all day long." He shrugged.

Now that was frank, wasn't it!

"What are you supposed to be doing," I asked him.

"Reviewing change orders against the contract documents, making sure contractor claims for extra work are legit, handling claims that aren't through the dispute resolution process."

We sat in silence for a moment. I had to consider whether or not to ask the question on the tip of my tongue.

"Can I ask why you're not doing what you're supposed to be doing," I asked.

A few more seconds of silence.

"We were told not to."

"By whom?"

"By our boss."

"How many of there are you down there, doing nothing?"

"About a dozen," he said.

"Nobody doing anything, all day long?"

"That's right. I can't live with myself, taking that check home. I gotta work for my money," he said.

Well I didn't end up hiring this man, as much as I wanted to, because the "boss" hired someone else for me (a great lawyer and superb human being).

But I reflected on what I had been told. At the time, design was complete and construction of the project had begun in earnest. The word had come down (from Secretary Kerasiotes) that the project would be completed on time, and on budget, no excuses. No excuses. That was one of Jim K's mantras. He had a sign on his desk that said "Do not confuse effort with results." Everybody knew he meant it.

There are two things, principally, that delay construction projects beyond their schedules. One is changed conditions, the other is claims disputes. To a certain extent, changed conditions changes can't be avoided on a project of such magnitude (certainly not if the original designs have so many mistakes in them). Claims disputes, however, can drag out for months and months, and can frequently interfere with the critical path of a project.

It is then possible (and I have no evidence to indicate my suspicion is correct -- none) that a decision was made, in the interest of keeping the project on schedule and not spending millions on contract litigation during the project, to eliminate the usual practice of change order reviews.

After my meeting, I passed on the substance of my conversation to the higher-ups. Years later, when Andrew Natsios was Secretary of Administration and Finance, he became personally involved in reviewing the financial mess that was burgeoning at CA/T. I told him my story. He was incredulous, but I never heard anything further about it. He then took over the project for a short period, after Jim K left and before the current Chairman, Matt Amorello.

I don't know what the explanation is for either the story that was tlod to me or the fact that nothing (apparently) ever came of it.

But today, I can't help but wonder how the project might have turned out if a dozen lawyers at the Central Artery were allowed to do their jobs.

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