Attorney: Torrado contract legally binding

Attorney: Torrado contract legally binding

CUMBERLAND – This town would not likely withstand a legal challenge if it were to overturn what is a valid contract with project manager Torrado Architects on $83 million worth of improvement work in local schools.

The opinion rendered by Assistant Solicitor Peter Skwirz to the Town Council and Mayor Jeff Mutter on June 28 finds that the School Committee had the authority to enter into a contract extension with Torrado last year. Skwirz found that a 2015 contract, a 2018 amendment before last year’s school bond, and a 2019 change order on the 2018 amendment are all valid and legally binding.

But, said Skwirz, just because the contracts with Torrado may have been exempt from state and local procurement laws, if properly following a state master price agreement, “it does not mean the School Committee formed the contracts in accordance with best practices.”

The School Committee does not appear to have re-vetted the contract with Torrado prior to amending the contract last year, despite the school bond covering substantially more work than under a 2015 agreement with Torrado, said Skwirz.

“As a general rule, a new procurement process should issue when there are ‘changes which vary the terms of the contract so substantially as to constitute a new undertaking,” he wrote. “Accordingly, it would have been more appropriate for the School Committee to have followed a new procurement process for the 2018 amendment, since the undertaking in that amendment (architectural services for $80 million of additional work) was clearly different from the substance of the 2015 agreement.”

That said, the irregularity in the procedure used for the 2018 amendment would likely not be sufficient to set aside the contract, he wrote.

Council President Peter Bradley had wanted the council’s attorney, Antonio Afonso Jr., to review the matter but went with Skwirz after Afonso said he had a conflict of interest and couldn’t. Bradley said the opinion from Skwirz effectively ends any chance the council had of forcing this project back out to bid.

“I think we’re going to have to let it go,” he said.

But with Skwirz stating that the project should likely have gone out to bid, said Bradley, his expectation is that moving forward all best practices for saving taxpayer money are adhered to.

Mutter said Monday that once the School Committee entered the contract with Torrado, members bound the town to fund it. Skwirz essentially confirmed what Solicitor Kelley Morris had stated in that the town could face a lawsuit if it canceled its contract with Torrado, he said.

Mutter noted the assertion by Skwirz that the procurement process could have been handled differently. He likens this to someone using their spouse’s credit card without their knowledge for a big purchase. The bill still has to be paid.

Hopefully, said Mutter, he will soon bring the Torrado contract to the school building committee, and then it will go to the council. He said it’s important to get all “I’s dotted and T’s crossed” and “get this under control.”

School Committee Chairman Paul DiModica said Tuesday that he hadn’t yet seen the opinion, but said he’s assuming it was favorable for Torrado because parties met on Monday and Mutter indicated that the situation was resolved and the building committee would have a meeting to accept the company.

The Valley Breeze reported in May that Bradley was seeking a closer inspection of the Torrado contract after questions surrounding the School Committee’s extension with the firm prior to a November 2018 school improvement bond vote.

Members of the Cumberland Public Schools Renovations Building Committee held closed-door discussions on whether school officials violated bidding laws when they amended a contract with Torrado last year and didn’t put the job back out to bid before extending a contract with the company by another five years.

Torrado’s fee is 7 percent of the total value of the project, meaning a potential for nearly $6 million in fees on the lengthy $83 million school renovations project.
Torrado’s original 2015 contract called for the company to get an amount not to exceed $400,000 for work on $5 million in capital improvements. Supt. Robert Mitchell, prior to last year’s bond vote, executed an amendment to the 2015 agreement extending the completion date from 2020 to 2025.

Skwirz states the extensive power available to the School Committee in entering contracts and managing school affairs, while noting the lack of authority on the town side in such matters. He also cited state law in stating that the town has an obligation to fund the contracts entered into on the school side.

On the matter of the town charter’s requirement for a building committee to manage projects, Skwirz said an interpretation that such a committee would need to approve contracts runs contrary to the full authority given to the school board under the law.

A court would likely find the procurement procedure used by the School Committee was sufficient to make the contract binding on the town, writes Skwirz in his opinion.

In bringing potential issues with the contract up two months ago, Mutter acknowledged that there would likely be a legal risk to negating the contract with Torrado and going back out to bid for the architectural work.