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Is there a calculable dollar value inherent in warranties? That could be the key question in the MBTA’s suit against Rocla Concrete Ties over 150,000 defective concrete ties on the Old Colony Commuter Rail.
Denver-based Rocla, seeking summary judgment in federal court, has been claiming its responsibility for the ongoing $91 million “rip and tear” remedy the T has undertaken to replace all the concrete ties with wooden ones expired long ago. The company claims there was an agreement in 1995 to amend the full warranty from 15 years to just three years. The T says not so fast, it has no record of the change and, besides, no one besides the board could authorize such a change.
But last Friday, Rocla filed its latest bomb, a receipt for the contract with a handwritten note from former T official William Boodry that says “documents reflect accepted warranty language” with Boodry’s initials below it. Where did this potential smoking gun come from? Rocla says the T turned it over in discovery.
It’s a key piece of evidence in deciding whether the T will bear the full cost of replacement with relative pennies from Rocla. Boodry, now in the private sector, had submitted an affidavit saying he recalls no such agreement and, besides, he would not have been authorized to approve it.
Frank DePaola, the assistant general manager for design and construction at the MBTA, said after a legislative briefing yesterday on the tie problem that levels of authority for changes are determined by dollar figures. He said he and a handful of other officials can approve minor changes of value up to $100,000 to a contract, but anything up to $500,000 requires the general manager’s OK. Above that, it’s the board’s decision, he says.
But when asked what the cost of a warranty change would be, he could not put a figure on it.
“Off the top of my head, I think there’s an inherent value to it,” he said.
It’s an expensive question to answer. The cash-strapped T cannot use federal money to help pay for the replacement of the concrete ties. DePaola said the feds will not pay for something they already paid for 10 years before and that was supposed to last 50 years. And, for the first time, an MBTA official publicly admitted the agency is wary that, even if they succeed in court, which is looking like an iffy proposition, Rocla could file for bankruptcy and leave the T holding the bag.
The T is not saying much at all about the suit. GM Rich Davey did not show up at the legislative briefing and DePaola did not address the suit in his remarks to the couple of legislators and handful of aides who attended the meeting. He instead focused on the nuts and bolts of replacing the crumbling concrete ties with nearly 190,000 wooden ties. Ironically, wooden ties were what the MBTA first insisted on when it put the Old Colony project out to bid nearly 20 years ago, only to reverse course and go with concrete.
The tie replacement project, which was halted for the winter, resumes on Monday in Middleboro and the timeline laid out by DePaola shows some serious headaches are in store for the T and commuters. After morning rush hour and before the evening commute, riders will be bused between stops or, if the MBTA buses are not arriving within 15 minutes of the train schedule, riders will be taken to the Red Line in Braintree. The Greenbush Line, which also has concrete ties made by Rocla but from a different time and with different specs, will also be disrupted when ties are replaced on the Braintree-to-Boston main line that the Greenbush and Old Colony lines share.
The 1,000 or so weekend riders who take the Old Colony trains will have to fend for themselves because they will be left without any service – train or bus – for the duration of the project.
The repair schedule will progress at the estimated pace of a mile a week. With nearly 57 miles of track and 81 crossings to replace, expect service disruptions until the summer of 2012.
