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Fraud Suit Against Painting Contractor Settled

Wednesday, September 8, 2021

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Recently, the United States Attorney’s Office Southern District of New York announced that it has settled civil fraud claims against New York-area painting contractor Spectrum Painting Corp.

The settlement resolves prior allegations that Spectrum fraudulently obtained payments on two federally funded construction projects by causing misrepresentations of compliance with Disadvantaged Business Enterprise rules, which require participation of businesses owned by women and minorities.

What Happened

In 2019, the U.S. federal government filed a civil lawsuit against Spectrum Painting (Scarsdale, New York) for allegedly defrauding government contracts for the painting of the Brooklyn Bridge and Queens Plaza transit facility, by exploiting the DBE program.

At the time, Ahern Painting Contractors Inc. (Woodside, New York) and Tower Maintenance Corp. (Roslyn, New York) were also sued under the False Claims Act.

The suit followed the award of a $150 million coating contract for the rehabilitation of the Brooklyn Bridge and Queens Plaza projects to Ahern in 2010. In the contract, Ahern was required to set aside 14% of the work to DBE subcontractors. Tower was hired for a portion of this work.

artisteer / gettyimages

Recently, the United States Attorney’s Office Southern District of New York announced that it has settled civil fraud claims against New York-area painting contractor Spectrum Painting Corp.

When one of the DBE contractors had to back out of the project, Ahern had to find another DBE-qualified contractor. However, according to the complaint, Tower was not experienced enough to take on more of the work.

The government reported that Tower and Spectrum officials knew one another from working on previous projects together. Allegedly, Ahern agreed to have Spectrum use Tower’s status as a DBE to take credit for millions of dollars of work. But, since Tower did not perform a “commercially useful function” on the projects, Spectrum completed more of the directing, managing and supervising the DBE work.

Complaints state that by May 2010, Tower’s part of the deal had expanded more than 10 times than what was in the original deal. Spectrum workers were allegedly pretending to be Tower employees by wearing its company vests, using its security information and were even telling other laborers that they were Tower employees. A foreman allegedly informed a government investigator that Spectrum officials “ran the show.”

In addition to this, Ahern and Tower allegedly repeatedly sent out false statements and records to the main contractor, Skanska Koch Inc. (Brooklyn), NYC-DOT and the Metropolitan Transit Authority, misrepresenting that Tower had completed all the work alone and didn’t hire a subcontractor.

The government then claimed that Spectrum was paying kickbacks to an Ahern superintendent in the form of a $10,000 “commission payment” for commissioning the projects and arranged a free trip to Atlantic City in 2010 and 2012 for the vice president.

As a result of all of this, the defendants allegedly obtained millions of dollars in federal money to which they were not entitled.

Because of the investigative work completed by Douglas Shoemaker, regional Special Agent-in-Charge of the United States Deptartment of Transportation Office of the Inspector General; Margeret Garnett, the Commissioner of the NYC Deptartment of Investigation; Barry L. Kluger, Inspector General of the MTA-OIG; and all those involved with the investigation, a case was officially made in 2019.

Geoffrey S. Berman, the United States Attorney for the Southern District of New York, filed the charges against the three contractors, while assistant U.S. attorneys Monica Folch and Li Yu were put in charge of the case.

Settlement

As alleged in the amended complaint filed in Manhattan federal court in August 2019, Spectrum performed steel painting work on two federally funded projects to renovate the Brooklyn Bridge and Queens Plaza. Contracts for both projects required codefendant Ahern Painting Contractors Co. to hire DBEs to perform a percentage of the work and to adhere to the DBE regulations. 

However, because Spectrum was not a certified DBE, the company and Tower used Tower’s status as a DBE to take credit for work that was performed, managed, and supervised by Spectrum. In addition, Spectrum was found to have its employees represent themselves as Tower employees in project documents.

In a settlement approved by U.S. District Judge Analisa Torres, Spectrum has admitted and accepts responsibility for conduct alleged in the Government’s amended complaint and has agreed to pay $400,000 to the United States.

“This settlement rightly holds accountable a subcontractor that intentionally deceived the government and blatantly disregarded the regulations in place to ensure equal access by disadvantaged-owned businesses,” said DOI Commissioner Margaret Garnett. “Developing a fair and equal environment is how we do business in New York City and that is why contractors must follow the laws advancing participation by minority- and women-owned businesses. DOI thanks the U.S. Attorney’s Office for the Southern District of New York and the rest of our law enforcement partners on this matter for this successful result.”

As part of the settlement, Spectrum admits, acknowledges and accepts responsibility for the following conduct alleged in the amended complaint:

  • In or about March 2010, a manager at Spectrum (the “Spectrum Manager”) and a principal at Tower agreed that the two firms would work together on the Brooklyn Bridge Project. Pursuant to that agreement, the Spectrum Manager conducted a walk-through of the Brooklyn Bridge worksite with the Tower principal and an Ahern superintendent for the Brooklyn Bridge Project. The Spectrum Manager understood the he participated in the walk-through to assist Tower in preparing the bid Tower later submitted to Ahern for its anticipated work as a DBE subcontractor for the Brooklyn Bridge project.
  • In May and June 2011, Spectrum and Tower memorialized two “consulting agreements” for work on the Brooklyn Bridge and the Queens Plaza Projects. Pursuant to those agreements, Spectrum and Tower agreed that Spectrum would “perform certain consulting services,” including “providing project management support,” and would furnish equipment to Tower for the two projects. The agreements further provided that Spectrum would receive 50% of all profits from the Tower DBE work on the projects.
  • The key terms of the consulting agreements between Tower and Spectrum—including Tower’s agreement to pay Spectrum 50% of all of its profits from the two projects, or Spectrum’s agreement to furnish equipment to Tower for the projects—were not disclosed to Ahern, NYC-DOT or MTA.
  • Throughout the Brooklyn Bridge and Queens Plaza Projects, the Spectrum Manager managed and supervised the DBE work that Tower was retained to perform on each project, such as setting the work schedule, ordering materials for the work, hiring the foreman, inspecting the work performed and coordinating payment for the work.
  • The Spectrum Manager also hired other supervisors on the Brooklyn Bridge and Queens Plaza Projects.  For example, the Spectrum Manager hired the superintendent for the DBE work assigned to Tower for the Brooklyn Bridge Project and the Queens Plaza Project (the “SPECTRUM Superintendent”). The Spectrum Manager also hired an individual to oversee health and safety issues related to the DBE work on the two projects (the “Spectrum Safety Supervisor”). Both the Spectrum Superintendent and the Spectrum Safety Supervisor were paid by Spectrum and not by Tower.
  • The Spectrum Manager, Spectrum Superintendent and Spectrum Safety Supervisor were all Spectrum employees. On the Brooklyn Bridge and Queens Plaza Projects, they identified themselves to others working on the projects as Tower employees, including by wearing Tower vests and security identification.  In documents submitted to Ahern to obtain security clearances, the Spectrum Manager identified himself as a “Tower VP” or as a Tower employee.

The case against Ahern was resolved in a settlement approved by Judge Torres in October 2019, and the case against Tower is ongoing.

“The Disadvantaged Business Enterprise program is intended to increase participation of minority- and women-owned businesses that historically have been disadvantaged in federal contracting,” said Manhattan U.S. Attorney Audrey Strauss. “This settlement reflects this Office’s commitment to root out DBE fraud in federally funded contracts so that legitimate DBEs can compete fairly for public construction projects.”

Strauss further praised the outstanding investigative work of the USDOT-OIG, DOI and MTA-OIG.

This case is being handled by the Office’s Civil Frauds Unit. Assistant U.S. Attorneys Mónica P. Folch, Li Yu and David J. Kennedy are in charge of this case.

   

Tagged categories: Business management; Business matters; Business operations; Ethics; Fraud; Government; Government contracts; Laws and litigation; Lawsuits; NA; North America; Program/Project Management

Comment from Gregory Stoner, (9/8/2021, 8:36 AM)

A $400,000 fine on a $150 million job might be considered the cost of doing business which is never good.


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