Enter The Lawyers

In the never-ending saga that is the Silver Spring Transit Center, Montgomery County and Metro have teamed up to file a lawsuit for damages arising out of its design and construction. Bill Turque of the Post reports.

Montgomery County and Metro have filed a $166 million lawsuit against the companies that designed, built and inspected the Silver Spring Transit Center, contending that their “collective failure” led to five years of delays and $50 million in cost overruns to correct substandard work.

The long-anticipated, 62-page complaint, filed this week in Montgomery County Circuit Court, accuses designer Parsons Brinckerhoff, general contractor Foulger-Pratt, and construction inspection firm Robert B. Balter of multiple counts of negligence and breach of contract.

The first interesting thing to note is the fact that the County and Metro are on the same side.

The suit is also notable in that it aligns the county and Metro as plaintiffs. The two have been at odds over most of the past five years over the project, which was built by the county but will be operated by the transit agency.

Until a couple of weeks ago, Metro was seeking millions of dollars directly from the county to pay for additional maintenance and repair costs. It now appears that the two have settled their differences.

Given the amounts being claimed, I’d expect the case to drag on for a very long time. One interesting additional bit of information I was able to find online is that an outside counsel, William Nussbaum of the DC office of Saul Ewing, is involved in the case. From the online case information, it’s not clear whether Mr. Nussbaum was hired by the County, Metro, or both. I know from personal experience that when the County brings in outside counsel, approval of the County Council is required.

While I haven’t been able to find any such approval from the Council to retain Nussbaum thus far, he is listed as counsel for both the County and Metro in the online docket information. It would be interesting to know whether he was retained by the County, and if so, on what terms. That would shed some light on the County’s thinking in this matter. Stay tuned.

More On The Transit Center

As further details emerge about the dispute between Montgomery County and Metro, the more it becomes clear that Metro’s demands to the County are both ham-handed and almost comically absurd. The Post article today notes, among other things, that it’s not clear that different Metro officials actually know what the rest of the agency is doing.

According to documents made available this week by the county, Montgomery and Metro staff spent nearly two months targeting Aug. 23 as the opening date.

In a June 29 e-mail to Metro and county officials, Metro external relations director Lisa Schooley said that although tasks and timelines were subject to change, “the plan’s timeline is currently built assuming an opening date of August 23.”

And the June 8 agenda of a public-relations group working on the transit center rollout said: “As of this date, there are 76 days until the opening,” which would mean Aug. 23.

Requa said Wednesday that Aug. 23 was considered as a possible date because it coincided with a planned system-wide change of bus schedules. That would have made it easier, he said, to integrate new arrival and departure times for buses into the system.

But Requa said it was never a firm opening date. He said the WMATA board — which next meets in September — will have to vote that the center is ready to open before any bus service can begin there.

“It was premature,” Requa said. “People may have gotten ahead of each other.”

Until this week, the saga of the $140 million transit center, beset by design and construction flaws, appeared to be winding down. County officials reported that final repairs to cracked road surfaces and support beams were complete. On Monday, Metro buses rolled through the structure on practice runs.

But Firestine and Montgomery’s general services director, David Dise, the county’s lead official on the job, said that they began to get a different message in a July 10 phone conversation with Requa.

They said Requa seemed to be unaware of the work his operations and marketing staff had been doing around the Aug. 23 date.

Requa informed them, they said, that the transit agency would be rejecting the county’s “punchlist,” a final list of construction items that were completed.

On July 21, Requa sent the county a series of proposed changes to the original 2008 project agreement between the county and transit agency.

So between June and September, there are no meetings of the Metro board? And nobody thought of this while they were focused on an August 23 opening date? Brilliant. Wow.

The request for a $15 million escrow fund was not unreasonable, in my view. But asking the County to give up its 25% interest in development rights around the station was preposterous and not related to the problems with the transit center. And demanding the County provide a 100% tax abatement on any development for ten years brought the Metro effort into the realm of the criminal shakedown. A clumsy, ill-conceived plot worthy of a bad organized crime screenplay.

And it’s stupid. Metro has been underfunded for years, as a result of the inaction of the three states that, with the federal government, pay for Metro. There’s never been a dedicated Metro funding stream in Maryland. The agency was on the moral high ground to at least some degree in this matter. At least in MoCo, that ground was thrown away in what appears to be an 11th hour hare-brained scheme to shake down the county over the transit center, after months of cooperation toward a mutually-agreed opening date. Dumb, dumb, dumb.

Metro Jacking Up MoCo Over Transit Center?

It certainly looks like a shakedown to me. Bill Turque has the details late this evening:

Metro has told Montgomery County officials that some of the recent repairs to the Silver Spring Transit Center are showing “signs of degradation,” and it is asking the county for $15 million to cover future maintenance and repair.

County officials, in turn, accuse Metro of attempting to hold “hostage” the delivery of the problem-plagued facility to the transit agency until its demands are met.

The new round of charge-and-countercharge is the latest in a long history of interagency discord surrounding the three-level commuter hub, which is four years late and $50 million over budget because of design and construction issues.

There’s more - go read it. Should be an interesting stare down over the next few days. Expect lots of mean words to be flung about by both sides.

Enter The Lawyers

If you were wondering what the next step is going to be in the ongoing saga that is the Silver Spring Transit Center, wonder no longer. The County is lawyering up - as it should.

Montgomery County is preparing to hire a law firm that worked on Boston’s “Big Dig” and other troubled public works projects to act as its special counsel for lawsuits expected to arise from the design and construction of the Silver Spring Transit Center.

County Attorney Marc Hansen has asked the County Council to approve the appointment of law firm Saul Ewing to assist with what is expected to be a flurry of legal claims and counterclaims. His request is on the agenda for Tuesday’s legislative session.

For those who are interested, I was special counsel to the County in 2011-12 on a referendum case, so I know a little something about the process. The County Attorney’s office is first-rate, but they sometimes need outside special expertise to do the job at hand. There will be howls of outrage from some - as there was when I was hired - but this is a responsible decision to hire a firm that has the expertise the County is going to need.