The Southwest Light Rail Transit project has faced its share of tribulations. Cost overruns. Delays. Construction damage to a condo building. A critical audit.
Now add a lawsuit. Michael Janish, a Metropolitan Council engineer who worked on the Southwest project, alleges he was demoted because he tried to rein in the change orders that have plagued the project and were among the problems cited in an ongoing audit by the Minnesota Office of the Legislative Auditor. A pre-trial conference on the suit is scheduled Thursday in a federal courtroom in Minneapolis.
The lawsuit, filed in November, stems from the Met Council’s handling of change orders surrounding the construction of the Southwest light rail project. Janish alleges in the lawsuit that the Met Council was overcharged because council staff manipulated the change order process in ways that ensured cost estimates would be in line with what the construction contractor believed was reasonable.
The Met Council has denied those claims in a follow-up court filing. In a statement to MinnPost, the Met Council said the “allegations are wholly without merit and [we] will vigorously defend this lawsuit.”
The project, which extends the Green Line 14.5 miles from Target Field to Eden Prairie, was estimated at groundbreaking to cost $2 billion and was expected to open last year. It’s now estimated to cost $2.86 billion and would open in 2027. Construction is more than 75% complete.
Janish, who worked on the project from 2015 to 2022, was the controls manager who oversaw contracts and change orders. The lawsuit focuses on three change orders — a fraction of the 658 change orders on the project between March of 2019 and October of 2022 that added $219 million to the project’s cost, according to the legislative auditor.
The Met Council has said the change orders, as well as the construction delays, are the result of challenging building conditions through the Minneapolis Chain of Lakes, as well as the late addition of a railroad-mandated crash wall in the Bryn Mawr neighborhood.
The three change orders Janish questions in the lawsuit include two in which he alleges overestimates of work stoppage time for when freight trains passed by construction sites. In the third, Janish alleges contractors were paid for hours they didn’t work.
The Met Council denies all of these allegations in its filing. The agency said cost estimates provided by AECOM Technical Services did not account for constructability and site constraints and that the Met Council didn’t require the company to account for site conditions in determining change order estimates. The Met Council ended its relationship with AECOM Technical Services for its cost estimating work and last year tapped another contractor for that work.
Accountability mechanisms
Federal law requires all non-federal agencies that receive any form of federal funding to establish controls to show they are spending federal dollars wisely, which includes clamping down on change orders. To comply with federal law, the Met Council developed the following process, according to both the Legislative Auditor and Janish’s filing:
- Construction contractor or Met Council requests a contract change.
- The Met Council determines if the change request should be a change order.
- If so, the Met Council asks its independent cost estimator, AECOM Technical Services, to estimate how much it will cost.
- At the same time, the construction contractor is to estimate the costs of the change order.
- The independent cost estimator submits its estimate before the construction contractor submits its estimate.
- The Met Council is supposed to use both of these values to negotiate the final cost of the change orders.
The Federal Transit Administration does not approve change orders. The change orders are ultimately presented before a control board comprised of two Hennepin County commissioners, one Hennepin County Railroad Authority commissioner, the Met Council chair and the chair of the Met Council Transportation Committee, along with a non-voting Ramsey County commissioner. The FTA, however, keeps track of them to ensure they are within the project’s scope.
The legislative auditor concluded staff were not forthright with terms of some of the change orders, including not explaining to the control board they wanted to give the contractor the ability to seek more payment for delays. The auditor suggested to state lawmakers in June that the control board should have asked more questions.
RELATED: Auditor questions Met Council’s ability to oversee light rail projects
Janish alleges he was reprimanded for not approving at least two change orders and was then demoted, being reassigned to the Blue Line extension project with fewer supervisory responsibilities. The Met Council argues in its filing that Janish was not demoted.
“Rather than terminating [Janish] for refusing to perform his job duties, the Council transferred Plaintiff to a comparable position on a different light rail project that would not require him to engage in the activities he had expressed concerns about,” the Met Council’s filing reads.
While the lawsuit makes its way through federal court, the Office of the Legislative Auditor continues its financial audit of the Southwest light rail project, with another report expected this spring.
