Sam Drysdale
State House News Service
Lawyers for developers challenging a $2 billion Springfield courthouse construction contract sparred Tuesday over an alleged conflict involving state official John Barros and whether it tainted the bidding process.
During a hearing in Hampden Superior Court, the plaintiffs argued the alleged conflict deprived losing bidders of a fair process and eroded public trust, while the state and Liberty Junction, the winning development team, said the plaintiffs had identified no violation of state law and were improperly seeking to second-guess the procurement. The judge did not rule from the bench, but said he would issue a decision soon, with both sides pressing for a timely resolution as the project moves forward.
The plaintiffs — local Springfield developers Jeb Balise and Dinesh Patel who lost the bid — are seeking a declaratory judgment that the Division of Capital Asset Management and Maintenance (DCAMM) did not follow the process established in its request for proposals or state conflict-of-interest law. They also want the project rebid. The state and Liberty Junction stressed that the selection was conditional, with additional requirements and lease negotiations still ahead.
Attorney John Butts, representing the plaintiffs, centered his argument on Barros, who was part of the Liberty Junction team before becoming interim executive director of the Massachusetts Convention Center Authority in January.
"There's a lot of, frankly, excuse-making from the defendants on what Mr. Barros was to be doing, and what was his role," Butts said, arguing that the record either portrayed Barros as an active participant in the development team or, if the defense's later characterization as a removed investor was accepted, reflected "materially misleading submissions about his role."
Butts said the alleged conflict harmed the losing bidders by depriving them of a fair process.
"The harm to the losing bidders, and certainly my clients, USPB and Springfield Towers, is they were irreparably harmed because they didn't get the opportunity to participate in a fair process," he said.
Butts argued that Barros remained central to the proposal even after he became an MCCA official and was advised not to communicate with DCAMM. He pointed to an April letter from Liberty Junction to DCAMM that cited four development projects as evidence of the team's experience, three of which, he said, involved Barros.
"His involvement mattered," Butts said.
Barros's Aug. 3 affidavit, submitted in the case, gives a different account. He said he consulted MCCA General Counsel Kevin Scanlon and State Ethics Commission General Counsel Eve Slattery before becoming interim executive director and was advised that he could retain his interest in Liberty Junction but should not participate in communications or presentations involving DCAMM.
"I have complied with these instructions," Barros wrote. "I have not had any discussions with DCAMM about the Liberty Junction Team's proposal or the Springfield Courthouse project and have not participated in any presentations by the Liberty Junction Team to DCAMM relating to those subjects."
Barros said he filed his required disclosure the day after learning on June 30 that Liberty Junction had been selected.
Butts acknowledged that Barros disclosed his interest, but argued the timing was critical.
"I suppose on a semantic level he did, but when he did is just as important, if not more important than the fact of a disclosure," Butts said.
Barros announced in late July that he would divest his ownership interest in the project.
"I had a lot of questions about that. Questions that aren't answered in the papers and will be answered in discovery. Did he sell this interest? At what price? It was certainly a lot more valuable post the conditional award than before. Who acquired it, and what's their role going forward?" Butts asked.
Assistant Attorney General Nicholas Ogden, representing DCAMM, argued the plaintiffs' conflict theory was unsupported and that the state selected Liberty Junction because of the merits of its proposal, including what he described as a $420 million taxpayer savings.
"For a case not to be about money," he said, referring to the plaintiff's argument that the case was about the lack of a fair process, not the loss of the $2 billion bid for their companies, "there's $420 million more dollars of taxpayer money that USPB wants over Liberty Junction. That's a good chunk of money."
Ogden also said the plaintiffs were improperly putting their financial interests ahead of the state's broader interests.
"Plaintiff's complaint seeks to elevate their financial interests over the needs of the commonwealth and the interests of its citizens," he said.
He said Liberty Junction's proposal offered better access, transportation and operating-cost benefits and emphasized that the Trial Court, as the eventual user of the courthouse, recommended Liberty Junction.
"The Liberty Junction proposal addressed the Trial Court's needs with by far the lowest projected impact on the Trial Court's future operating budgets," Ogden said, quoting the court administrator.
Ogden said the Trial Court's involvement in the selection process undermined the plaintiffs' suggestion that Barros could have improperly influenced the outcome.
"The Trial Court, this court, is above the ability to be influenced," he said, referring to the court system's role in the selection process. "The idea that the court administrator or the chief justice of the trial court would be somehow influenced by Mr. Barros's involvement is ridiculous."
Ogden also directly rejected the plaintiffs' allegations concerning Barros.
"Plaintiffs also claim that they have a likelihood of success based on John Barros's involvement. That claim is without merit and is basically imagination," he said.
He said the selection committee and Trial Court did not speak with Barros and that the development team's larger firms, including FD Stonewater, Leers Weinzapfel Associates and Suffolk Construction, played the substantive roles in the proposal.
"With all due respect to Mr. Barros," Ogden said, those firms were "the big hitters."
Ogden also challenged the plaintiffs' repeated references to news coverage of the dispute, and Butts' argument that the alleged conflict of interest is causing mistrust in government.
"Plaintiff's reliance and constant reference to the media indicates their inability to litigate this case in front of the court and their joy in litigating it in the press," Ogden said. He characterized the complaint as a "hodgepodge of factual inaccuracies layered over legal mistakes" and said the plaintiffs were seeking to create a public uproar rather than demonstrate a legal basis for an injunction.
Butts disputed that characterization while also making the public-interest argument central to the plaintiffs' case. He said his clients were not seeking money or trying to stop the courthouse project, but rather a fair procurement.
"The public is harmed because the public loses trust in government when things like this happen, and that's the root of the firestorm in the media," Butts said.
Butts said the plaintiffs' principles were in the courtroom on Tuesday because they viewed the project as a once-in-a-generation opportunity for the community they live in, not simply as a financial dispute.
Liberty Junction attorney Marwan Zubi likewise said the plaintiffs had not met the legal standard for a preliminary injunction.
"Frankly, your honor, this is not a close call," Zubi said. He argued that the plaintiffs "can't point to a single section of the conflict of interest law and explain to this court how we violate it."
Butts said the plaintiffs were not asking the court to award them the project or prevent Springfield from getting a new courthouse.
"We are certainly not here to try and stop a new courthouse from being built. Far from it," he said. "What we are here as plaintiffs asking for is, frankly, what every citizen and taxpayer should want: is a fair and transparent process, and that hasn't happened."
Butts said the plaintiffs were prepared to proceed quickly if the court allows discovery and a trial.
Zubi argued that the plaintiffs had not shown the kind of immediate, irreparable harm required for an injunction, particularly given the conditional status of the selection. He also said that the court's review of the procurement decision is limited and that judges cannot simply substitute their judgment for that of DCAMM and the Trial Court.
Butts closed his argument by returning to the broader public interest.
"There's $2 billion of taxpayer money at stake, the public interest is served by getting it right," he said.