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A Superior Court judge dismissed a potential $125 million penalty against Tresca Brothers Concrete, Sand and Gravel in a case that alleged delivery of substandard concrete on public contracts.
The Millis concrete supplier was accused of misconduct on projects involving 45 Massachusetts municipalities, charter schools and state agencies, after a pair of employees reported alleged violations of industry standards for concrete mix and delivery times.
Suffolk Superior Court Judge Kenneth Salinger granted Tresca Brothers’ motion for summary judgment, ruling the alleged violations did not violate terms of the contracts.
“The key part of the ruling is: it’s not so much what your witness might say on the stand or in a deposition,” said David Suny, lead attorney for Tresca Brothers. “What matters is what the municipality actually does in practice.”
During discovery, attorneys established that Tresca’s practices were no different than those of other ready-mix concrete suppliers on similar projects, Suny said.
The case was heard under the Massachusetts False Claims Act, which can levy fines against companies that overbill government agencies. Tresca Brothers faced potential fines of up to $25,000 per individual violation.
Two Tresca Brothers employees, Thomas P. Minarik and James S. Cicerone, alleged improper practices in the handling and delivery of concrete to infrastructure and charter school projects.
The two whistleblowers testified they submitted delivery tickets to job sites that failed to disclose non-compliance with industry standards about the age and water content of concrete batches, and the trucks’ travel time from Tresca’s plant to job sites.
Specifically, the whistleblowers testified that Tresca poured concrete at job sites more than 90 minutes after it had been batched, in violation of industry guidelines and Massachusetts Department of specifications for highway and bridge projects. Whistleblowers presented 360 delivery tickets with falsified delivery times in what they said was the company’s attempt to conceal non-compliance with the 90-minute rule.
In the Nov. 28 decision, Salinger ruled that the 90-minute standard was not a contractual or legal obligation, and that the delivery tickets did not constitute a claim for payment within the False Claim Act’s definitions.
During discovery, attorneys for Tresca Brothers presented evidence other local concrete suppliers delivered batches violating the 90-minute standard that were accepted by municipalities including Brookline, Cambridge and Framingham.
In an emailed statement, Andrew Rainer, attorney for the plaintiffs, said the decision “raises the hurdles for whistleblowers to bring forward important information on government contracting fraud. Whistleblowers who come forward with evidence that a government contractor is regularly violating industry standards should be allowed to go to trial to prove those violations. Here, there was evidence that the contractor, for years, instructed its employees to lie about that.”
