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Monday, April 25, 2016


The recent filing of a lawsuit by Comstock Construction against the North Dakota Heritage Center for $1.5 million points up a recurring issue in state government. There is a pattern of avoidance of responsibility and a resultant cost to North Dakota taxpayers. Comstock, based in Wahpeton, finished the work over a year ago.

According to Historical Society Director Claudia Berg, Comstock has not "finished some detail work". This is extraordinary. Why not? Who is responsible to ensure that this "detail work" is completed in a timely manner? Should the architect be held responsible? The general contractor? The administration?

It would seem that someone here is not doing their job. This case is a good example of why we need more accountability in public projects such as the Heritage Center addition. The bulk of Comstock's lawsuit is due to incomplete design and specification problems. A part of Comstock's complaint is that their request for additional time and compensation to fix these flaws was denied. Also, according to Comstock, the consultant failed to visit the site to view mock-ups. The suit also alleges that work was further delayed due to the Heritage Center allowing other contractors to begin setting up displays before the work was completed.

The upshot of this is that the project over-ran the budget allotted by the state legislature ($51.7 million, of which $39.7 million was public funding to be matched by private donations and grants). The state funds have been exhausted and not all of the private funding has come in so far. The amount still owed to Comstock was $386,204. The lawsuit now asks $1.5 million, including profit, overhead, court costs and attorneys' fees plus interest.

The entity which will pay appears to be the tax payers of North Dakota -- again. This reminds us of the pay loader that was wrongfully seized by Wayne Stenehjem's Bureau of Criminal Investigation and was later awarded to the Forbes North Dakota man by the court, only to be discovered missing – in Mexico. The cost of that debacle was about $58,000 (plus the cost of litigation). The Heritage Center construction mess is a little more costly. We might well wonder what else we are paying for due to sloppy administration and irresponsible project management.

This could be avoided in the future if the state's design and construction process is reformed to allow for a design-bid-build process. This project delivery approach would require the kind of communication that would largely preclude costly and embarrassing litigation. Design-Bid-Build is used by many other states, but not in North Dakota. Design-Bid Build reduces construction costs because it puts a joint liability on the designer and contactor to take responsibility for designing and constructing a project on time and on budgeted without errors or omissions.

$52 million is too much money for the Heritage Center additions and remodeling. It is time to reject the status quo and return the focus of North Dakota's government to serving the best interests of its citizens.

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