By Tim Craig
Washington Post Staff Writer
Sunday, March 20, 2005; Page C03
The company that installed decorative railings and three-story light fixtures in the Music Center at Strathmore is suing the general contractor and Montgomery County because it says it has not been fully paid for its work.
Forms+Surfaces Inc. of Pittsburgh alleges that Clark Construction Group LLC, the general contractor for the $100 million concert hall that opened last month in North Bethesda, owes it $415,000.
The suit, filed this month in Montgomery County Circuit Court, seeks $724,000 in payment and damages from Bethesda-based Clark. Montgomery County and the Strathmore Hall Foundation are named as co-defendants.
To ensure payment, Forms+Surfaces wants a mechanics lien issued against Strathmore Hall Foundation Inc. If a judge ruled that the firm deserved payment and damages, the lien would allow it, at least theoretically, to take possession of the property if it is not paid.
“This is not the first time we have had to do something like this,” said Shawn Flannery, a managing principal at Forms+Surfaces. “But we had to do it because we can’t get answers; everyone stonewalls us.”
At least one other subcontractor, Colorado-based International Woodwork Corp., is preparing to file suit because it is owed $1 million for installing wood trim, said Ross Bowen, the company’s owner.
Montgomery County oversaw construction of Strathmore and used a combination of state, local and private funds to hire Clark to build it.
Clark hired about 40 subcontractors to help complete the project. After the facility was finished last month, the county leased it to the Strathmore Foundation.
Dennis Darling, a senior vice president at Clark, said the subcontractors are overreacting and should realize it takes time to settle payment on major projects.
“Clark is going to solve this,” Darling said. “We are interested in our relationship with our subs. We are confident we are going to resolve something with them.”
Darling, who noted that none of Clark’s subcontractors has been paid in full, said it is not unusual for a general contractor to withhold final payment until it is paid by the entity financing the project. Although Montgomery has paid Clark nearly $63 million, it still owes about $10 million. That balance will be paid when a final evaluation of the building is completed, county officials said.
Although some subcontractors are getting uneasy, others say payment disputes are common in big projects. “It’s not uncommon in our business to have stacks and stacks of unresolved issues,” said John Livingston, manager of business development for Manganaro Midatlantic LLC, which installed drywall at Strathmore.
John J. Fisher, an associate county attorney, declined to comment specifically on the suit, saying it is a dispute between Clark and its subcontractors.
Shawn C. Whittaker, an attorney for Forms+Surfaces, said Montgomery County’s pre-construction decisions are the reason the company requested a lien.
On private projects, Whittaker said, contractors can file suit requesting that the finished product be held as collateral should they win a judgment for nonpayment.
However, because Strathmore was built by a public entity, Whittaker said, the county should have purchased a performance bond, meant to ensure that contractors are paid for the work they perform. If a dispute arose, he said, the contractor could go to court and request a judgment against that bond.
“We don’t have any rights under the bond because there isn’t one,” Whittaker said, adding that he is doubtful a judge would grant the lien.
State and federal laws established performance bonds to ensure contractors working on public projects can collect payment because it is not feasible for them to request liens on government property.
Darling said Montgomery County, after consulting with state officials, decided to waive purchase of the bond to save money.
The bonds, according to Whittaker, can cost several hundred thousand dollars.
Fisher said Montgomery believes it had to secure only 50 percent of the project with performance bonds.
Although it took out those bonds to cover subcontractors performing a majority of the work, the county did not purchase bonds for work by such companies as Forms+Surfaces that were doing “less than 50 percent” of the job, Fisher said.
“It only becomes an issue if Clark doesn’t pay, but we fully expect them to pay,” Fisher said.