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EASY PASS | PAST BIG DIG COVERAGE
Lawsuit raises Big Dig questions
Settled case alleged fraud, shoddy work
By Raphael Lewis, Globe Staff, 02/06/2002
ederal authorities have agreed to dismiss the first whistleblower suit to come to light on the Big Dig project after a major contractor reached a settlement with a former employee who accused the firm of rampant billing fraud, dangerous or shoddy tunnel work, and covering up flaws through intimidation and threats.
The case, dismissed by a US District Court judge after an agreement between the company and the employee last December, raised significant questions about the quality of work on the northernmost underground portion of the Central Artery where quality assurance manager Timothy Eilertsen had worked.
Eilertsen, who filed the suit in June 1998, said that the joint venture of Cashman/Kiewit/Atkinson knowingly overcharged the project on a range of costly tunnel work by manipulating or exaggerating measurements, and that the companies constructed badly flawed elements, including sometimes radically tilted tunnel supports that he said could endanger the structural integrity of the underground roadway.
Artery project director Michael Lewis yesterday said the lawsuit triggered an in-depth investigation by the project's quality control staff, which verified some problems described by Eilertsen. But none, he said, was deemed a threat to the structural integrity of the tunnels by project designers and engineers.
Lewis also said that the contractors were assessed less than $1 million for billing discrepancies, and that the joint venture cooperated with officials.
So-called whistleblower cases are brought against companies by prosecutors after an individual alleges fraudulent practices under the federal False Claims Act. If after an investigation the government decides to intervene, the whistleblower typically receives a percentage of whatever money prosecutors recover at trial.
In dozens of pages of memorandums, field reports, and contract specifications, Eilertsen detailed allegations of poor work quality and fraudulent billing practices that, he says, he was ordered to withhold from "any state inspectors or quality control personnel from Bechtel/Parsons Brinckerhoff," the state's management consultant.
In response to one e-mail he sent superiors regarding welding procedures that did not meet contract specifications, a superior scrawled a note that read: "Listen you [expletive], don't think that your [sic] qualified. . . . You haven't even passed the [quality control manager's] test so your not even qualified to comment on [expletive]."
Eilertsen did pass the test while working on the contract.
Thomas R. Kiley, lawyer for Jay Cashman Inc., the lead company on the contract, said the case had more to do with tension between an inexperienced quality control manager and his increasingly frustrated bosses than it did with substantial allegations of fraud and dangerous workmanship.
"He got treated gruffly and insultingly, and we didn't treat him properly," Kiley said. "That's simply the case. We apologized to him for the way he was handled. It's not our proudest moment."
Eilertsen did not return calls seeking comment, and his lawyer, Jeffrey A. Newman, said he could not discuss the terms of the settlement, including how much the joint venture paid Eilersten, because they are confidential.
Newman also represents six other Big Dig workers whose whistleblower cases are at "various stages of development," he said.
As part of the settlement, Eilertsen asked federal authorities to dismiss the case, which they agreed to do in December.
No criminal charges have been filed against the contractors, said Roberta T. Brown, the assistant US attorney assigned to the case, adding that authorities will not pursue the case unless new evidence arises.
"We did conduct an extensive investigation and we took it seriously, and obviously chose not to pursue the case," Brown said. "It does not mean we cannot pursue these or other allegations on our own."
Despite the magnitude and complexity of the joint venture's contract, Eilertsen was the sole quality control manager on the job from August 1997 until July 1998.
Eilertsen resigned after his employers allegedly moved him "to an office where he was alone and without a computer, unable to do his job and . . . preventing him from performing his regular duties," the federal court filing states.
That isolation, he alleged, came after he discovered several areas of what he viewed as potentially dangerous flaws in the companies' tunnel construction methods. According to the suit:
Eilertsen found that 77 out of 103 piles within tunnel slurry walls were tilted as much as 26 inches from their intended alignment. The piles, he alleges, were set without proper monitoring or measurement verifications, as required by the contract, creating "an increased probability that the piles will weaken or collapse."
Eilertsen said he had discovered that the contractors improperly buried a 24-inch water main that later erupted, and instead of properly repairing it, "merely buried it."
He accused the joint venture of diverting subcontractors' trucks and excavation equipment to "a company employee's home in Lexington" for 10 days in April 1998, causing delays at the job site.
Eilertsen said he found several instances in which the contractors used a lower, cheaper grade of support steel for pilings, which "increases the probability of compromise to the structural integrity" of the tunnel walls.
He said that the contractors intentionally overstated measurements of 50 slurry walls, for which the company is paid $75 per square foot, illegally adding nearly $300,000 to the price. He said a similar trick was used to add 2 to 5 feet onto the length of dozens of drilled shafts, for which the contractor was paid $500 a foot.
Eilertsen also said that the company purposely failed to sample test slurry wall trenches in order to charge extra for grouting the areas to prevent leakage. When he pointed this out, Eilertsen said, he was handed a memo that threatened to garnishee his wages for the income lost for the grouting work.
Big Dig officials said they could not comment on many of Eilersten's allegations because they could not find evidence to support them. However, Lewis said an analysis of work provided by the contractor verified all of the problems involving the steel beams, and the mismeasurements.
Because the flawed work did not endanger the structural integrity of the tunnels, the less-than-standard work was left in place, Lewis said.
Regarding allegations that Eilertsen was ordered to withhold key findings from project engineers, Lewis said the Big Dig's quality assurance team independently identified many problems anyway.
But, he added, contractors are expected to provide full and honest disclosure on any quality-control problems.
"It would be a concern" if contractors were witholding information, Lewis said, "But we can't judge whether it's a true statement or not. That's certainly not an acceptable practice."
Like many major Big Dig contracts, Cashman/Kiewit/Atkinson's contract, which ran from Chardon Street in downtown Boston to the foot of the Zakim Bridge, has ballooned from its original price of $218 million to more than $280 million, records show.
The three firms that make up the company are prime contractors on $1.36 billion worth of Big Dig contracts, work now worth $414 million more, thanks to changes and claims, records show. Most of that work is nearing completion.
In recent weeks, the Globe has reported on a series of construction flaws that had previously gone unacknowledged by project officials, who had declared a new era of openness after it was announced in spring 2000 that the Big Dig's price had risen at least $1.4 billion.
Artery officials have vigorously defended the project's quality assurance program as a multilayered system designed to catch flawed work. But the first layer, they admit, is the contractors.
For this contract, Cashman/Kiewit/Atkinson was represented by Eilertsen, who was hired without proper certification, to ensure quality on a $218 million contract.
Kiley said that was an unfortunate aberration: "We've done a good job at quality control, and our people have grown with it. Cashman is very proud of the work they've done on this project. Tim [Eilertsen] was there at a stage so early in the job. We've come light years since."This story ran on page B1 in the Metro/Region section of the Boston Globe on 02/06/2002.
© Copyright 2002 Globe Newspaper Company.