The directors of an award-winning Miami science museum that opened last year are battling their construction contractor—again.
Skanska USA, which stepped in when the museum board terminated Suffolk Construction in 2014, has accused the owner of refusing to pay contractors for remaining work to achieve “final completion.” The legal action, initiated in Miami-Dade circuit court in late March, is the latest in a series of controversies that also included a protracted work stoppage in 2013 and an infusion of an additional $49 million in public funding in 2016 to complete the work.
In response to the contractor’s legal complaint, the museum’s chief executive, Frank Steslow, said in a statement that all remaining items constitute “warranty work” and that “the museum has already paid Skanska all sums” due to the company.
Central to the dispute are the terms of the July 2014 “takeover agreement,” which the two parties enacted when Frost hired Skanska to take over the then-stalled project. The museum had terminated its first construction manager, Suffolk Construction, “for convenience” in May 2014. When the museum hired Skanska, Steslow contended to ENR that Skanska could complete construction by the end of 2015.
Suffolk had begun work on the five-story, 250,000-sq-ft museum in March 2012. An eight-month construction shutdown followed in 2013, though, due to issues related to uncoordinated design, stated a Suffolk official at the time. Prior to its 2014 termination, Suffolk had targeted an August 2016 completion date—eight months later than Skanska could deliver, the museum indicated at the time.
Instead of completing construction by late 2015, however, as the museum had initially announced, Skanska’s complaint reports the project achieved substantial completion in summer 2017, and argues that final completion has not yet been achieved.
A statement from Skanska Executive Vice President Michael Brown alleges that the museum is preventing contractors from fully completing the project.
“Finishing details and ‘punch list’ items identified by the Frost Museum have gone unaddressed for months because Skanska has not been authorized to manage the work by museum leadership,” Brown stated. The contractor’s legal complaint alleges that the museum has limited the number of Skanska’s project staff to just one person.
At contention is the wording of the takeover agreement’s second amendment, specifically that related to the museum’s compensation of Skanska’s lump-sum general conditions after March 31, 2017. It reads:
“-After March 31, 2017 through Final Completion (if requested by the Museum): Skanska shall be paid on a time and materials basis with Skanska being compensated for its employees….”
Importantly, the museum seizes upon the parenthetical statement and argues that it hasn’t requested anything but warranty work from Skanska since March 31.
Says Steslow: “Amendment 2 only involved completion work – not warranty work—and only obligated the museum to reimburse Skanska’s lump-sum general conditions for completion work through March 31, 2017. After March 31, 2017, Skanska was not entitled to additional compensation unless further completion work was requested by the museum. Because Skanska failed to timely close out the project, the museum did not request additional completion work from Skanska.”
Skanska: Warranty Doesn't Cover Museum's Requested Work
Skanska, on the other hand, alleges that the museum has requested non-warranty work, and that it is refusing to pay for it. The contractor’s complaint, filed in late March, states: “Despite the plain language of Amendment 2, FMOS (Frost Museum of Science) has not complied with Amendment 2, and instead has engaged in a pattern and practice of requesting work from Skanska but refusing to pay for same.”
By the summer of 2017, the complaint continues, “FMOS began reducing funding authorizations and progressively reducing Skanska’s staff on the FMOS project, which prevented Skanska from having the staffing level necessary to complete the scope of closeout and other services contemplated by the Takeover Agreement.
“As soon as the Certificate of Occupancy was obtained in November of 2017, FMOS refused any further funding authorizations,” the complaint continues. “FMOS has blocked Skanska’s extraordinary efforts to bring the FMOS project to final completion, because FMOS does not want to pay Skanska for the work that needs to be done.” The complaint also asserts that the museum would not allow the release of certain funds that are payable to subcontractors for completed work.
Commented Steslow: "Skanska’s actions in filing of a lawsuit and immediately providing misleading information to the press, rather than mediating the dispute as is required by the contract, is disappointing."
Earlier this year, the Phillip and Patricia Frost Museum of Science was recognized with one of ENR's annual Best Of The Best Projects awards.