Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/85927
of the 10/9 concrete and these logs were provided to Prosperi, Stevenson and others on a daily basis. Aggregate instituted a system to trick the inspec- It has been held that a claim or statement may be false even though it contains no untrue information or entries if, within the totality of the circumstances, the claim is not valid. was loaded onto trucks for delivery; and (5) in most circumstances, place the concrete at the construction site within 90 minutes of the time it was mixed and loaded onto the delivery trucks. The batch tickets served as a quality control mecha- nism. Aggregate's drivers would give the batch tickets to B/PB inspectors as they delivered their loads. The inspectors checked the batch tickets for certain criteria, including the time the concrete was loaded, the mix design, the volume loaded and the amount placed. In the mid-1990's, Aggregate began to supply non- conforming concrete to the Big Dig. Aggregate insti- tuted a practice of topping-off loads of leftover con- crete, sometimes with concrete of a different mix de- sign that met contract specifications. Aggregate would provide the entire load as if it were fresh concrete. These loads were designated "10/9" loads, which was the radio call signal that drivers used to alert the dis- patcher they had leftover concrete. The decision to use 10/9 concrete on the Big Dig was made by Aggregate's Ready Mix Division manage- ment, including Robert Prosperi, general manager, and Gregory Stevenson, operations manager. Once this process was instituted, 10/9 concrete was sent to the Big Dig on a daily basis. Dispatchers kept logs tors by printing dummy batch tickets, by manually inputting the concrete quantity, mix design and time of loading using the batch computer's demonstration mode. When inspectors came to Aggregate's plant to check that procedures were being followed, the batch men would call the dispatchers and use the term "city plant" to signal that inspectors were present and 10/9 loads should not be sent out. In addition, when Aggregate ran out of fly ash, an important ingredient in some mix designs, Aggregate continued to supply concrete without fly ash by falsifying batch tickets to make it appear the loads contained fly ash. It is un- clear how many loads without required fly ash were provided to the Big Dig. Using the 10/9 logs, government investigators es- timated that Aggregate provided 5,337 loads of 10/9 concrete to the Big Dig. In addition, the government included an estimated 1,200 loads of 10/9 concrete supplied to other public construction projects within Massachusetts. These loads totaled approximately 64,163 cubic yards of non-conforming concrete. The government paid an average of $80.90 per cubic yard of concrete. As a result, the government asserted a loss amount of $5.2 million. Overall, these non-conform- ing 10/9 loads amounted to approximately 1 percent of all the concrete provided by Aggregate to the Big Dig, and 0.6 percent of all concrete used in the project. After a several week jury trial, Prosperi and Stevenson were convicted of multiple criminal offens- es, including mail fraud, highway project fraud and conspiracy to defraud the government. They were sen- tenced by the trial court. On appeal, their sentences were affirmed. Although it is obvious that one should not make false or misleading statements in any contract — es- pecially with the government — for those who fail to heed this maxim the Prosperi case serves as a cautionary tale that criminal penalties can be the end result. v Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com Better Roads August 2012 17b