MEMS fiasco puts board and builder in litigation
BY KATHY BARATTA
Staff Writer

ENGLISHTOWN - The Manalapan-Englishtown Regional School District Board of Education has entered into litigation with the construction company that completed an addition and renovations at the Manalapan Englishtown Middle School (MEMS).

The board initially filed a civil action against Ernest Bock and Sons Inc. (EBS) and Design Resources Group (DRG) architects. EBS then filed its own lawsuit against the school board.

The litigation is the end result of a matter that began with a delayed school opening in September that had the school board scrambling to mollify outraged parents of MEMS students who were bused to different schools for a few days at the beginning of the 2006-07 school year while construction crews and municipal officials worked overtime to get the renovated MEMS open.

The overtime effort resulted in MEMS opening only a week late, instead of the six to eight weeks late that had been predicted. The delay centered around the construction work being completed according to municipal code regulations. Until the work could be completed to the satisfaction of municipal inspectors, the building could not be given a certificate of occupancy.

In its litigation the board alleges among other things that "Bock failed to comply with the standards and deviated from the plans and specifications and failed to properly submit bills, invoices, payment applications and/or change orders and has otherwise demanded and/or received payments for monies which are not properly due and owing."

The suit also states that EBS and DRG " ... negligently and carelessly prepared plans, drawings and specifications for the project; deviated from the accepted standard of care while providing architectural and engineering services in the preparation of the use of the lands and premises, [and] negligently and carelessly failed to inspect the job site to determine conditions existing therein and thereon."

DRG employee Allen Van Hook was the board's liaison between the professionals and the school board, reporting directly to the superintendent of schools and giving periodic progress reports to members of the board.

The litigation claims the school board was provided with faulty information by EBS and DRG that it (the board) provided to other professionals and vendors that led to additional problems with the job.

The suit asserts that "as direct and proximate result of Bock's conduct, negligence and breach of duties, the plaintiff school district has sustained damages and has and will in the future be compelled to expend substantial sums of money to adjust those items and conditions."

The suit charges that EBS and DRG's "negligence and carelessness" forced the school district to "incur diverse sums to correct and complete the work performed and materials supplied and has been and will be exposed to the demands of others."

The board claims EBS and DRG breached their contracts with the district by "failing to comply with the standards and requirements of the Uniform Construction Code in preparing the plans and specifications" and also that the firms "failed to employ generally acceptable architectural and/or engineering practices acceptable in the industry."

The suit charges that EBS and DRG failed to "observe, supervise, inspect and/or accept and approve the construction in the manner required by practices acceptable in the construction industry."

The board is seeking a declaration from the court that it owes no money to EBS and DRG, along with compensatory and consequential damages, interest and costs of bringing the lawsuit as well as attorney's fees and such other relief as the court deems appropriate.

School board attorney Sanford Brown said neither he nor any member of the school board would be able to discuss the allegations of either side's litigation because the matter is still open before the court.

EBS filed a countersuit alleging that "throughout the project the board requested changes and additions to the project outside the scope of the contract" and that it (EBS) "undertook to accommodate the board's requested changes and additions to the project."

EBS's litigation asserts it was the board's requested changes and additions that led to delays in the MEMS construction project. The project saw additional classrooms built at the middle school on Millhurst Road and various renovations made to the existing building.

EBS asserts that the board has fully received the benefit of services provided by EBS.

According to EBS, "the board's conduct prevented EBS and its subcontractors from complying with the project schedule in all material aspects" and also claims that EBS and its subcontractors were forced by the board to "perform work out of sequence and in an inefficient manner."

EBS also accuses the board of "arbitrarily and capriciously causing delays, additions and changes in the project" and claims that as a result of that action EBS incurred additional claims from subcontractors for "extended conditions, additional labor costs ... delays and lost profits."

Claiming losses due to the board's actions, EBS is seeking compensatory damages and costs it incurs in pursuing the litigation.

At the time of the MEMS blowup in September, state Sen. Ellen Karcher (D-Monmouth and Mercer) and state Assemblyman Mike Panter (D-Monmouth and Mercer) promised to investigate who or what was at fault for the delayed opening.

School district Business Administrator Joseph Passiment told the News Transcript that to date no investigation of the MEMS situation has been undertaken by Karcher, Panter or the school board.

On Monday, Panter made the following statement to the News Transcript regarding the MEMS situation.

"Our focus this fall was to ensure that students could begin the school year on time. It was very disconcerting to parents that they knew nothing about potential delays until just before classes were scheduled to begin. We discussed whether an investigation was needed at the time, and will likely revisit this topic now. The school district should certainly not be on the hook for construction overruns if they were the fault of the builders, which hopefully will be resolved. I will be speaking with the board about their possible legal actions, and offer to help in any way that I can," Panter said.

Karcher could not be reached for comment on Monday.

The $17 million construction project at MEMS was started in March 2005 and paid for out of a $49 million bond referendum voters approved in 2003. The referendum is also funding the construction of an early childhood learning center on Gordons Corner Road that is scheduled to open in September.

The end result of the construction at MEMS included the addition of 73,000 square feet to the existing middle school and 30 new classrooms along with a new science room, two new computer labs and the addition of a new gymnasium, health center and nurse's office, as well as renovated art rooms and a music instruction room.