No one is talking about possible kickbacks that may or may not have been provided to county officials by the firms that did the architectural and engineering work on the High Desert Detention Center during the construction phase of that undertaking. That project, originally referred to as the Adelanto Detention Center, encountered $29 million in construction cost overruns from the time work on the project began in late 2010 until its final phase in 2014.
The facility, located on 9438 Commerce Way in Adelanto, was formerly privately owned and run as a 706-inmate capacity institution known as Maranatha Prison. It was sold by its owner, the Moreland Family Trust, to the county in April 2005 for $31.2 million. The expansion, which was originally slated to cost $90,951,937, added 1,392 new beds to the existing capacity of the jail. After making a finding that the construction bids received from S.J. Amorosa Construction Co., Inc. of Costa Mesa and Flintco of Folsom were non-responsive, the county in December 2010 awarded a $90,951,937 contract to Bellevue, Washington-based Lydig Construction as the low bidder. But during the more than three years of construction, the board of supervisors approved a total of 29 change orders and amendments to the contract, and the price zoomed to $120,419,790.
Hellmuth, Obata & Kassabaum, Incorporated, based in Culver City, was the architect on the project. Los Angeles-based Jacobs Engineering was the project engineer, a subcontractor to Hellmuth, Obata & Kassabaum.
The total price tag on the project, including site acquisition, engineering, architectural, licensing and inspection costs, reached $176,651,910, which was $25.45 million more than the $151.1 million projected to be the project’s overall price including a ten percent cost overrun contingency when it was approved in 2010.
The county rushed things, as it needed to complete the expansion by January 31, 2014 or face losing $100 million in state funding. This impatience on the county’s part led to former director of architecture and engineering Carl Alban and other county officials prompting the board of supervisors to approve the hodge-podge, stopgap and improvisational change orders. In recommending approval of many of the change orders and contract amendments, Alban cited requirements mandated by third parties such as the state fire marshal. The county was able to declare the detention center as operational in January 2014 to meet the state deadline, doing so prior to the completion of work on the facility.
A number of the change orders or amendments related to fire safety issues. The fifth contract amendment approved on February 23, 2013 pertained to $2,472,388 worth of changes to the smoke control evacuation and automatic fire sprinkler systems, roof supports for the heating, ventilation and air conditioning system, as well as other state fire marshal-mandated modifications. The sixth amendment to Lydig’s contract, approved May 21, 2013, was, in Alban’s words, to “convert the specified fire smoke dampers to smoke dampers as part of the revisions to the smoke control system” in the amount of $5,063,392.
On June 25, 2013, an eighth amendment was approved in the amount of $6,004,736 for revision of the smoke control systems and fire protection systems, a portion of the cost of which was covered with Amendment No. 6. On August 6, 2013, the board approved an eleventh amendment, providing Lydig with $709,533 for the installation of a third electrical service system and a booster pump to ensure the proper flow and functioning of the fire protection systems; the expedited procurement and delivery of smoke control panels and supervisory panels necessary to achieve the scheduled project completion date; and the relocation of smoke detectors in the dormitory sleeping areas as required by the Board of State and Community Corrections.
On November 11, 2013 the board approved a twelfth amendment to the contract for $415,952 to add twenty-seven dampers to the smoke evacuation ductwork, modify the glazing stops at master control, install fire wrap to ducts and dampers at specified locations and separate the dry zones at the housing units.
On December 17, 2013 a thirteenth amendment in the amount of $304,450 called for modifications to the electrical service yard, fire sprinkler system isolation in the support building and constructing foundation and adding a position indication valve and monitoring devices for the fire booster pump, relocating fire/smoke dampers, revising exhaust duct risers in the center core of the housing units and adding a control module to the master control fire shutter.
On March 25, 2014, a fourteenth change order was approved for $336,682 to cover the cost of correcting overcurrent issues, improvements to water facility operations, balancing of the smoke control system, perform load bank testing of the generators and to carry out various corrective work.
Hellmuth, Obata & Kassabaum, Incorporated was originally given a $4,466,000 contract to provide architectural service on the project. Nine amendments later, Hellmuth, Obata & Kassabaum’s contract reached $10,438,396, an increase of $5,972,396.
Throughout the time the project was under way, county officials were highly defensive of the change orders and amendments, two of which were approved after the project was declared operational and opened for occupation.
Suggestions during 2013 while costs on the project were escalating pertained to kickbacks involving county officials and not Hellmuth, Obata & Kassabaum or Jacobs but rather Lydig, as the general contractor on the project which was the primary beneficiary of the cost overruns.
Almost immediately after the project was completed, however, on April 22, 2014, the board of supervisors authorized legal action against Hellmuth, Obata & Kassabaum and Jacobs. The county did not authorize any action against Lydig and made no public reproval of county architectural and engineering division employees who recommended passage of the contract amendments and change orders which created the cost overruns. Subsequently, when the lawsuit was actually filed, the county’s lawyers suggested that Lydig played a primary role in revealing the flaws contained in Hellmuth, Obata & Kassabaum or Jacobs’ design specifications.
More than a year had elapsed between the board of supervisors’ authorization of the suit and its actual filing. In that interim, the county provided Allen Matkins Leck Gamble with a retainer of $700,000 to lay the groundwork of the case against Hellmuth, Obata & Kassabaum and Jacobs. The actual filing of that suit was held in abeyance while Allen Matkins Leck Gamble and county representatives sought to negotiate with the two firms a settlement short of litigation that would be acceptable to the board of supervisors. After burning through $182,000 of that retainer, Allen Matkins Leck Gamble was making what was deemed insufficient progress toward having Hellmuth, Obata & Kassabaum and Jacobs acknowledge any responsibility for the overruns. The final cost overrun on the project attributable to either Hellmuth, Obata & Kassabaum and Jacobs occurred in March 2014. Any legal action by the county against those firms needed to be pursued within two years of the recording of that overrun. On May 1, 2015, Allen Matkins Leck Gamble, representing San Bernardino County, filed suit against Hellmuth, Obata & Kassabaum, Incorporated, and against Jacobs Engineering, alleging breach of contract and negligence.
That litigation has now dragged on for 23 months. In the meantime, Allen Matkins Leck Gamble has departed as the county’s legal representative and has been replaced by Mary Anita Salamone, with the law firm of Atkinson Andelson Loya Ruud & Romo.
Salamone was unwilling to disclose whether Allen Matkins Leck Gamble departed as the county’s legal representative in the lawsuit after learning that there was some untoward behavior on the part of some county officials. If, as has been suggested, some county officials involved in the decision-making process with regard to the contract amendments and/or change orders on the High Desert Detention Center project received money from Hellmuth, Obata & Kassabum and/or Jacobs Engineering, this would establish, in legal parlance, that the county had “unclean hands.”
The doctrine of unclean hands holds that a party asking for a judgment cannot have the help of the court if he/she/it has done anything unethical in relation to the subject of the lawsuit. Thus, if it can be established that a county official was on the take with regard to the High Desert Detention Center project, it would make pursuing the case against the architectural and engineering firms somewhat problematic. Paradoxically, if a corporate official or officials with one [or both] of those firms was or were, in fact, essentially bribing San Bernardino County officials, this might strengthen the county’s case. In this way, a primary question would be whether county officials were shaking down Hellmuth, Obata & Kassabaum and/or Jacobs Engineering, that is actively soliciting money from either or both of them, or was rather paid to look the other way after making discovery of a preexisting illicit scheme. Under California law, any contract that proceeds from corrupt action is rendered void and the offending party could be forced to disgorge whatever it was paid in accordance with such a tainted contract.
Salamone made no direct response to questions as to whether she had uncovered information to suggest bribes or kickbacks were an element of the $29 million in cost overruns on the detention center project and whether she had even attempted to trace out those reports to make a conclusion with regard to their accuracy or not.
This week, on Tuesday, the board of supervisors met in closed session to discuss the litigation against Hellmuth, Obata & Kassabaum and/or Jacobs Engineering. It returned from those secret deliberations and offered no report as to what action it had taken with regard to direction to Salamone on how to proceed in the lawsuit. –Mark Gutglueck