MDOT loses showdown with Purple Line contractor

This article was republished with permission from WTOP’s news partners at Maryland Matters. Sign up for Maryland Matters’ free email subscription today.

This content was republished with permission from WTOP’s news partners at Maryland Matters. Sign up for Maryland Matters’ free email subscription today.

A Baltimore judge on Thursday soundly rejected the Maryland Department of Transportation’s attempt to keep the firm building the Purple Line from abandoning the light rail project.

The ruling, by Baltimore City Circuit Court Judge Jeffrey M. Geller, allows Purple Line Transit Partners (PLTP) to sever its ties to the rail project in the middle of construction, a dramatic move it has sought for months amid a rancorous dispute with the state over approximately $800 million in cost overruns.

In theory the decision means that the MDOT now has two unappealing options — take over day-to-day management of the construction work itself or find a new company to take PLTP’s place. It also makes it more likely that communities that have been torn up will have to deal with inconvenience and blight longer — and that the project’s completion will be delayed.

Montgomery County Executive Marc B. Elrich (D) said the ruling gives the state the opportunity “to rethink and maybe get control of some of the costs of the project.”

“The thing that’s going to be hard is getting somebody to finish somebody’s else work and take liability for it,” he added. “I don’t see the state getting out of this cheaply, but this might be the cheapest form of divorce.”

The 16-mile Purple Line will eventually connect New Carrollton in Prince George’s County and Bethesda in Montgomery County. The suburb-to-suburb line, which will connect three Metro lines while bringing transit to lower-income and diverse communities, has been a dream of planners and transit advocates for decades.

With an injunction that keeps Purple Line Transit Partners from leaving the project set to expire on Monday, MDOT attorneys wanted the court to order an extension, to keep work going and to allow more time for negotiations between the state, PLTP and its lead contractor, Purple Line Transit Constructors.

In issuing his ruling denying that request, Geller rejected several legal arguments put forward by the agency:

  • He said MDOT appeared to ignore “clear, direct and absolute” contract language that gave PLTP the right to walk away if a dispute lingered more than a year. “There is a public interest in the court’s refraining from rewriting contract provisions that sophisticated parties entered into, on even ground, while represented by counsel.”
  • The judge said the state ignored months of entreaties from PLTP to create a transition plan, so that work could continue after the firm departed. “The state failed to participate in any meaningful way. There are numerous letters in the record in which PLTP implores the state to engage in the process. … But the state had dug its heels in.”
  • While MDOT officials testified that they did not have the funds, the personnel or the expertise to take over the project, Geller cited letters of reassurance that the state sent to 170 contractors as well as statements that Transportation Secretary Greg Slater made to the Montgomery County Council last week that undercut its courtroom claims. “The testimony before this court also revealed that the state intends to finish this project ‘no matter what.’ … There are funds to finish the work, though they made need to be diverted from elsewhere.”

A top PLTC official, construction manager Scott Risley, testified Thursday morning that because of design changes and shifting guidance from the Maryland Department of the Environment, the firms building the Purple Line repeatedly warned the state that the project was in “grave danger” and that the company had “no choice” but to withdraw.

“We have not made a penny” on the Purple Line, he said. “We’re losing money, bleeding money, every day we work.”

Montgomery County Council member Tom Hucker (D), whose Silver Spring-based district has been heavily impacted by construction, said MDOT “needs to finish the project as quickly as possible, without further delays, and without expecting any additional contribution from local jurisdictions.”

MDOT declined to make Slater available for an interview.

In a statement, spokeswoman Erin Henson said, “While we dispute PLTP’s right to terminate for Extended Delay, MDOT and MTA will work with PLTP on an orderly transition. MDOT and MTA remain committed to both completing the project and protecting the state’s interests.”

Despite the acrimony between the state and its contractors, former attorney general Douglas F. Gansler (D) said there is a possibility that the two sides could return to the bargaining table.

“They could still negotiate a deal,” he said. “That’s the most likely result, that there will just be a negotiation, based on the court’s ruling, having educated both parties.”

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