Wednesday, May 29, 2013

McKinstry says district changed its story

Court filings seek to hold ‘school district to its word’

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By TERRY SMITH
Express Staff Writer

    McKinstry Essention is claiming in court documents filed this month that the Blaine County School District changed its story from what it originally told the company and what is now being stated in the district’s court filings.
    The School District has claimed in previous court filings that McKinstry never finalized an agreement between the parties guaranteeing how much money could be saved with energy savings work performed by the company, that McKinstry failed to file a satisfactory technical energy audit and that McKinstry misrepresented that its work was in compliance with Idaho law.
    In a motion to amend its complaint filed with Blaine County 5th District Court on May 6, McKinstry is seeking to prevent the district from taking a position now that it didn’t take earlier in dealing with the company.
    “The fundamental purpose of this motion is to ask the court to hold the Blaine County School District to its word,” McKinstry spokeswoman Heidi De Laubenfels wrote to the Idaho Mountain Express. “Before and during McKinstry’s work to design and install tens of millions of dollars’ worth of improvements to the district’s facilities, the district gave no indication of any of the following: that it expected the entire project to be completely self-funding out of energy savings, that it was dissatisfied with McKinstry’s efforts under the technical energy audit agreement, that it had concerns that the transaction was in any way at odds with Idaho law.
    “Only now, well into a legal process to resolve a payment dispute and after these facility improvements have been completed, is the district reversing itself on these issues. It appears that it is, in fact, the district that is changing its story in an apparent effort to get these improvements for free.”
    On May 22 during a telephonic court hearing, Judge Robert Elgee granted the motion to amend the complaint because School District attorneys did not contest it. Even with the motion added to the complaint, McKinstry would still have to prove that statements from district officials are inconsistent now with what was stated earlier.
    Heather Crocker, district communications director, said Tuesday that the McKinstry allegations are false.
    “If one would simply read the McKinstry request for the amended complaint and compare it with McKinstry’s original complaint, it is immediately apparent that it is McKinstry changing its position and not the district,” she said.
    Litigation between the parties has been under way now for a year over a contract they entered into in 2010 for energy savings work and other improvements at eight district schools and facilities. McKinstry is claiming that it performed work worth about $26 million and that the district still owes it about $7 million. The district claims that it authorized work worth only $18.6 million and is seeking damages against McKinstry for at least that amount.
    A jury trial initially scheduled to begin Oct. 15 has been postponed to April 8, 2014. The trial is expected to last about 25 days.
Terry Smith: tsmith@mtexpress.com

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