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Judge postpones sentencing Big Dig contractor

Steve LeBlanc
AP Writer

Boston — A federal judge has postponed sentencing one of the Big Dig’s largest contractors in connection with work on the $15 billion Boston highway project, even though the company has filed for bankruptcy protection.

U.S. District Judge Douglas Woodlock said Tuesday that he wanted to hear testimony from expert witnesses before resolving two key issues — estimates on the cost of overbilling by Modern Continental Construction Co. and the question of poor workmanship that led to a 2004 blowout in the project’s Interstate 93 tunnel under downtown Boston.

The company has pleaded guilty to 39 counts of making false statements, acknowledging the overbilling and that some of its employees knew of the poor workmanship.

One core dispute was how much the company overbilled the state.

Modern has acknowledged that it overbilled by falsely charging higher journeyman rates for work done by apprentices.

Assistant U.S. Attorney Jeffrey Cohen said the government estimates that the overbilling amounted to between $500,000 and $1 million. The company’s lawyer, Michael Connolly, said the total was closer to $170,000.

When pressed, Cohen could not explain how prosecutors arrived at the higher figure. Cohen then suggested that the two sides might be able to agree to a figure.

Woodlock rejected what he called “back of the envelope stuff,” saying he wanted expert witnesses to come in to detail how they reached the higher estimate — even though it’s virtually certain the company will never be able to pay any fine.

“This is not an idle exercise,” Cohen said. “I’m not going to do it in a drive-by fashion.”

Woodlock said he also wanted to clarify responsibility for the leak caused when a portion of the tunnel wall blew out, causing water to rush in and creating a major traffic problem.

The company has acknowledged that some of its field employees knew about poor workmanship on a slurry wall panel and certified that the panels were built to specifications when they were not.

But Woodlock said he was concerned that some of the objections raised by Modern ahead of sentencing came close to a refusal to accept full responsibility.

“Criminal sentencing is not a Kabuki dance,” Woodlock said, referring to the highly stylized Japanese stage play in which the outcome is known well beforehand.

After the hearing, Connolly said the company accepts full responsibility for each count to which it has pleaded guilty.

The company filed for bankruptcy protection last June, on the first business day after federal prosecutors charged the company with lying about its work.

Earlier, prosecutors had agreed to dismiss the most serious charges against the company, related to the government’s allegation that the company knowingly used the wrong type of adhesive to hold up concrete anchors that failed in the collapse of the Interstate 90 connector tunnel in July 2006.

Milena Del Valle, 39, of Boston, was killed when 26 tons of concrete fell on a car driven by her husband.

The Big Dig project replaced an elevated highway in the heart of Boston with a series of tunnels, ramps and bridges and was plagued by cost overruns, falling debris, leaks and other problems.

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