The Board of Selectmen and Legislative Council have authorized First Selectman Dan Rosenthal and the Town to enter into “dispute resolution” with the Newtown Community Center architect and construction firms.

In respective meetings on March 4 and 6, selectmen and council representatives met in executive sessions closed to the press and public before emerging and voting to take action after a number of errors occurred that have or will likely contribute to delays and cost overruns related to the center.

“Ultimately, we are not accepting that the things that have gone wrong are the fault of the town,” First Selectman Dan Rosenthal told The Newtown Bee. “So the town will pursue dispute resolution under the mechanisms that our contracts with the firms provide us. The town hired these professionals, and I intend to protect the town’s interests.”

The first selectman was referring to the design firm of QA+M Architecture, also known as Quisenberry Arcari Malik LLC, and Newtown-based Caldwell & Walsh Building Construction.

The Newtown Bee broke a story on February 28 that revealed the firms’ involvement with several shortcomings that occurred during the community center’s design phase, where key construction aspects and/or materials were not included and had to or have to be retrofitted into the project at additional expense.

In at least one case involving steel work at the center’s main front and rear entrances, delays in getting the plans redone and approved, while adding minimal or no additional cost, have put an already lagging schedule at least three weeks behind.

Mr Rosenthal said with the project between 75 and 80 percent complete, any ability he may have once had to manage anticipated cost overruns was long gone.

As of March 6, the first selectman reported that the project may not be months behind, but it is at least a few weeks.

“The reason that is still not ideal is because every day crews stay on the site after the projected completion date means we have to generate more money that is not in the budget,” he said. “And if we’ve used all the contingency, we have to find that money somewhere else in the project. And we’re certainly past the point where we can say just use two coats of paint instead of three or reduce the amount of tiling we’re going to put in the pool area. That ship has sailed.”

Three Major Issues

One of the first design shortcomings brought to Mr Rosenthal’s attention was the fact that steel structural elements for the canopy over the senior center entranceway were not included in any original plans. Public Building & Site Commission (PBSC) Chairman Robert Mitchell said this was discovered so late that it generated a change order.

More recently, it was learned that steel supports for movable partition walls that would section off one larger space in the senior center and two larger spaces in the community center were also not included in original plans. The first selectman and PBSC chairman both explained that making fixes would involve having to get steel beams into already completed rooms and installing them in the ceilings — not a small effort, and it also involves measurable, unbudgeted expense.

That cost, originally estimated to be $157,000, had been whittled down closer to $100,000, Mr Mitchell related on March 6. But that single expense, if borne by the town, would consume nearly 70 percent of the project’s remaining contingency funds.

The latest issue involved missing steel work and supports that are integral aspects of the community center’s front and rear entrance ways that were also missing from plans.

As of March 6, Mr Mitchell said change orders to correct that problem, as well as the missing elements of the senior center entrance canopy, have been filed and are estimated to cost $84,000 to correct.

Several officials involved in the project suggested that budgetary constraints that Mr Rosenthal said are pushing the community center’s construction budget “perilously close to its limit,” may have been partially or completely avoided if all bids had been completed before the project broke ground and the initial concrete foundations were poured.

Town Building Inspector John Poeltl told The Newtown Bee that it was the first project he ever saw that initiated that level of construction without bids being solicited. And the first selectman said minutes he reviewed between the prior board of selectmen and the PBSC revealed that the commission was never asked for and did not provide a recommendation on their preferred choice of an architect or construction manager.

Mr Mitchell confirmed that the PBSC did initial interviews with a number of architects and construction firms and even created a master list of pros and cons they developed on each potential vendor, but he said former First Selectman Pat Llodra “did not want our recommendation.”

Mr Rosenthal said it does not serve anyone to try and lay blame at this point in time, but he defended the work of PBSC volunteers and particularly Mr Mitchell for providing their collective expertise when called upon to weigh in on large-scale town projects.

“The PBSC is not charged with providing a meticulous review of details and plans,” Mr Rosenthal said. “Their charge is to supervise construction and related work on public building projects. No issues related to this project are the fault of the PBSC.”

He also added that “as with a number of other projects that have gone sideways, the PBSC was not brought in until later on.”

‘The Project Grew’

Mr Rosenthal also noted that in the summer of 2017, “the project grew,” with lanes being added to the lap pool and an expanded multipurpose room being added to the plans that effectively “increased the size of the facility.”

“But nobody said, ‘Stop — don’t do it,’” the first selectman said. “Some [officials] understood it was going to [make the budget] tight.”

He said those changes as construction proceeded, “cut into a roughly $1 million in contingency funds, so we ended up with about a half-million.” Then, some time later, Mr Rosenthal learned that the plumbing and HVAC bids came in almost $2 million more than was anticipated.

“So we value engineered the project, creating as much contingency as we could,” he said. “But the project was already started — we couldn’t turn back the clock at that point.”

Nonetheless, Mr Rosenthal said firmly that “These things that were missed or not bid because they weren’t in, or weren’t right in the plans are not the responsibility of the town.”

He also insists on bearing the weight of responsibility, even though the project had broken ground and was already underway the day he took office on December 1, 2017.

“I’m the one sitting here,” he said, “so I’m the one who has to be accountable. The town decided to move forward with construction before all bids were in. I’m just trying to manage the project I was handed the best I can.”

Mr Mitchell explained that with clearance to move forward with dispute resolution, it is customary for settlements to be negotiated long before any legal action develops.

“If mediation is not successful, then the parties generally can move to arbitration,” he said. “If binding arbitration is requested, and either party is not satisfied at that point, that’s when you start considering a legal challenge. But in most cases I’ve seen, an offer is made to settle.”

At press time, Mr Mitchell said he believes there are sufficient funds in the community center budget to complete the project to its “day one” stage, which he said means the facility is substantially complete. After the PBSC chairman meets with Town Finance Director Robert Tait, Mr Mitchell said he will have clarity on exactly how much remains in the center’s contingency. But he knows it is between $127,000 and $157,000.

The potential discrepancy is tied to how the PBSC monitors and accounts for expense authorizations versus the way the finance director maintains his budget accounting, Mr Mitchell said.

“While the project is currently moving slower than we’d like to see,” he said, “the quality of the workmanship we’re seeing throughout the project is very high.”