Friday, July 12, 2013

District, foe squabble over contract

McKinstry seeks to have document declared legal


By TERRY SMITH
Express Staff Writer

    The nature of a construction contract and what provisions of Idaho law govern it has become a new hot issue between the Blaine County School District and energy contractor McKinstry Essention in continuing litigation between the parties.
    McKinstry attorneys filed a motion Monday in Blaine County 5th District Court seeking a summary judgment declaring the contract legal. According to court records, attorneys for the School District plan to file a motion seeking to have the contract declared illegal.
    The district asserts in various court filings that if the contract is declared illegal, “all monies paid to McKinstry by district should be disgorged and returned to district.”
    The School District and McKinstry litigation started in May 2012. It stems from a contract that the parties entered into in 2010 for energy savings work and other improvements at eight district schools and facilities.
    McKinstry claims it performed work worth about $26 million and that the district still owes the company about $7 million. The district maintains that it authorized work worth only $18.6 million and is seeking damages for at least that amount.
    The case is scheduled for trial before Judge Robert Elgee beginning in April.
    McKinstry is claiming that the contract is valid because the district was legally permitted to enter into it under Idaho Code 67-2309, which authorizes public officials to enter into construction contracts. That code provision does not require that guaranteed energy savings be part of a contract.
    The School District claims that the contract was entered into under Idaho Code 67-5711D, which provides for energy savings performance contracts wherein the contractor agrees to guarantee energy savings.
    The contract between the School District and McKinstry does not specify under which law the contract was written, but it does appear to more closely align with the provisions of 67-5711D.
    District Communications Director Heather Crocker characterized the McKinstry motion for summary judgment as another example of the company’s “changing its story.” She said the district’s attorneys are seeking to have the contract declared an “energy savings performance contract” as authorized under 67-5711D and often referred to as an ESCO.
    “If this is not an ESCO contract, then it would seem that McKinstry misrepresented its intentions to our entire community,” Crocker said.
    McKinstry spokeswoman Heidi De Laubenfels characterized the School District’s attempt to have the contract declared illegal as an attempt to get “facility improvements for free.”
    “The district is now seeking to avoid payment by claiming that the transaction was illegal,” De Laubenfels wrote in an email to the Idaho Mountain Express. “McKinstry is moving to dismiss all claims based on that assertion.
    “All along, our objective has been to stay focused on the true essence of this argument. McKinstry, along with local Blaine County subcontractors, delivered tens of millions of dollars worth of work, on time, given mutually agreed upon project schedules at the district’s direction. That work had significant value and we think we should be paid for it.
    “That is truly what this dispute is about. We are confident that distracting, baseless claims in this case will be dismissed on summary judgment prior to trial.”




About Comments

Comments with content that seeks to incite or inflame may be removed.

Comments that are in ALL CAPS may be removed.

Comments that are off-topic or that include profanity or personal attacks, libelous or other inappropriate material may be removed from the site. Entries that are unsigned or contain signatures by someone other than the actual author may be removed. We will take steps to block users who violate any of our posting standards, terms of use or any other policies governing this site. Use of this system denotes full acceptance of these conditions. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.

The comments below are from the readers of mtexpress.com and in no way represent the views of Express Publishing, Inc.

You may flag individual comments. You may also report an inappropriate or offensive comment by clicking here.

Flagging Comments: Flagging a comment tells a site administrator that a comment is inappropriate. You can find the flag option by pointing the mouse over the comment and clicking the 'Flag' link.

Flagging a comment is only counted once per person, and you won't need to do it multiple times.

Proper Flagging Guidelines: Every site has a different commenting policy - be sure to review the policy for this site before flagging comments. In general these types of comments should be flagged:

  • Spam
  • Ones violating this site's commenting policy
  • Clearly unrelated
  • Personal attacks on others
Comments should not be flagged for:
  • Disagreeing with the content
  • Being in a dispute with the commenter

Popular Comment Threads



-->
 Local Weather 
Search archives:


Copyright © 2014 Express Publishing Inc.   Terms of Use   Privacy Policy
All Rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Express Publishing Inc. is prohibited. 

The Idaho Mountain Express is distributed free to residents and guests throughout the Sun Valley, Idaho resort area community. Subscribers to the Idaho Mountain Express will read these stories and others in this week's issue.