Conspicuous in its absence – Is a 2014 COD Contract being avoided by the State’s Attorney and IDFPR?

DuPage Co. (ECWd) –

Attention to detail.  Each and every word and sentence in a document tells you something.  The conspicuous absence of documents  in the IDFPR investigation of Herricane Graphics may be telling us something.   The same conspicuous absence discovered in one of the subpoenas issued by the DuPage County Prosecutor may mean something as well.  I wish I knew for sure what these signals mean.

By all indications, we have once again identified a problem and it makes us question what is really going on with key elements of the both the IDFPR investigation of Herricane Graphics and the State’s Attorney’s criminal investigation  of Herricane Graphics.

IDFPR clearly avoided the 2014 Herricane Graphics contract that names Herricane Graphics as the Architect for a construction contract.  Now we find, after reading word by word, line by line, the criminal subpoenas for Herricane Graphics also is void of addressing the 2014 no bid Contract COD entered into with Herricane Graphics.

Why has IDFPR and the State’s Attorney’s office avoided looking at the 2014 contract?

As we exposed in these four articles, here, here, here, and here, the Illinois Department of Financial and Professional Regulations failed to address the 2014 contract COD entered into with Herricane Graphics which named that company as the Architect.   When you look at the 2014 contract, it’s not hard to see that it’s even more problematic for Herricane Graphics as it relates to the appearance of them holding themselves out as an Architect.

The 2014 contract outlines no less than 70 situations that involved an Architect in some fashion.  Using the arguments presented by Josh Feagans in his response to the 2012 case with IDFPR, it appears to be very clear those very arguments won’t hold water when applied to the 2014 contract.

Bullet point claims used to by Feagans in the 2012 contract case with the IDFPR:

• Burkhart is not a party to the contract; (2012 Contract)
  

She signed the 2014 contract on behalf of Herricane as the Construction Manager and is named individually as the Owner designated “Construction Managers Designated Representative” as well as the “Architects Representative”.  I would say most courts are going to look at that and say she is in fact a party to the contract.

• Herricane does not engage in or advertise itself to perform architectural services; (2012 Contract)

I can’t speak to what they advertise or to who is performing architectural services but we do know, according to the 2014 contract, “Upon 100% completion of the Construction Documents by the Architect before advertisement for bids, the Construction Manager shall prepare a Control Estimate for the Owner’s review and acceptance.”   Thus, certain things can’t happen until the Architect, Herricane Graphics, completes their obligations.

So now the question is, who performed the mandated Construction Documents?  The contract states it had to be by the Architect.  Herricane is named as the Architect, thus it does appear this would be problematic to make a claim they do not engage in such services.

• The subject contract, Exhibit 2 hereto, is a form document. It is not a contract for architectural services. Rather, it is a contract for signage design services. (2012 Contract)
  

The 2014 Contract is a Construction Management contract that has detailed requirements to be completed by the Architect, in this case Herricane Graphics, assigned by the Owner, as in COD.  Those requirements must be completed before advertisements for bids.  It does not appear the claim used against the 2012 contract is going to apply for the 2014 contract.

• Exhibit A to the subject contract refers to a “Signage Design Contract.” The Board Approval incorporated therewith continues to describe Herricane’s work as signage design; (2012 Contract)
  

The 2014 contract is a “Construction Manager as Constructor” contract and specifically names Herricane Graphics not once  but twice.  “The Construction Manager” – Herricane Graphics and “The Architect”- Herricane Graphics.  Then the Owner, College of DuPage, outlines who the “Construction Manager’s Representative” is as well as “The Architects Design Representative”.  It names Carla Burkhart/Herricane Graphics in both instances.

That means the company Herricane Graphics is the Architect and Carla Burkhart/Herricane Graphics are the design representative for the Architect, which if you missed it, is Herricane Graphics.

Key point, this is a Construction Management contract, NOT a Design contract and the previous pointing to the Board Approval is appreciated.  We will do the same for this contract. Board Approval is not for a design contract.  It is for a Construction Management Services Contract, which just happens to contain items that are to be done by the Architect.

• The scope of services relates entirely to signage and do not involve architectural services; (2012 contract)

2014 contract – 2.1.3.1 – The Construction Manager (Herricane Graphics) shall assist the Owner and Architect (Herricane Graphics) in preparing Construction Documents and advising the Owner on the acceptability of sub-tier subcontractors and material suppliers proposed by Subcontractors. The Construction Manager shall submit for review and approval to Owner, or its attorneys if designated by Owner, all instructions, terms, conditions, and information prepared for submission to bidders prior to release of the bid package.

2.1.5.1 2014 contract – Based on the preliminary design and other design criteria “prepared by the Architect”, the Construction Manager shall prepare preliminary estimates of the Cost of the Work or, the cost of Program Requirements using area, volume, or similar conceptual estimating techniques for the Architects review and Owner’s approval.  If the Architect or Construction Manager suggest alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems. 

Those paragraphs sure appear to point to services of an Architect.

• Exhibit B to the subject contract details to the scope of the services to be provided. The scope of services relates entirely to signage and do not involve architectural services; (2012 Contract)

The scope of the 2014 contract is very clear.  “This Agreement represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral.”

Considering the 2014 contract specifically spells out obligations that must be done by the Architect before they can even advertise for bids, one would think those representations are in fact Architectural services.

• Exhibit C to the subject contract refers to Herricane as the “Consultant” and refers entirely to a project related to “Signage;” (2012 contract)
  

It’s pretty clear in the 2014 contract, Herricane is not the consultant.  They are named as both the Construction Manager and the Architect.

• Exhibit D is a fee schedule and does not provide any reference to architectural fees; (2012 contract)

2014 Contract – See chart in § 5.1.1 The Construction Manager’s Fee – Note that Herricane is the Construction Manager:

Pre-construction Services include the following:

1. Pre-construction Programming, Cost Reconciliation and Project Design Meetings not to exceed fifteen (15) meetings.
2. One Schematic Design Development Cost Estimate and Reconciliation
3. All detailed cost estimated to be reconciled with Architects detailed cost estimate.

In addition, 2.2.1 states: “Upon 100% completion of the Construction Documents by the Architect, and before advertisement for bids, the Construction Manager shall prepare a Control Estimate for the Owner’s review and acceptance.”

It does not appear using the excuse the fee schedule does not reference Architects fees would work considering they can’t even advertise for bids until the Architect (Herricane Graphics) has completed 100% of the Construction Documents.  Note that it is talking about Construction Documents, not design work.

• Exhibit E is styled “Project Parameters.” Paragraph 2 thereto specifically excludes any services related to “architecture;” (2012 contract)

Can’t find any such exclusion in the 2014 contract that specifically excludes services related to architecture.  In fact, the 2014 contract outlines things that must be done by the Architect.

• Exhibit F details various projects related to the subject contract as “Signage Projects;” (2012 Contract)
  

And the 2014 contract details Architect obligations that must be met before they can even advertise for bids, thus no project should go forward without the 100% completion of the Construction documents, by the Architect!

To keep it simple, until the Architect does their job, they can’t even advertise for bid, thus nothing happens until the Architect performs.

• Exhibit H further describes the various projects related to the subject contract. The projects are exclusively related to signage. Exhibit H does not contain any reference to architectural services; (2012 Contract)

Again, the 2014 contract outlines architectural services that must be done before they can even advertise for bids.

The entire review of this information took less than 8 hours of work.  The content of the 2014 contract is very compelling and points to Architectural services being mandated as part of the Construction Management Services contract.

We must ask again, why didn’t the State’s Attorney include all of the same information as it pertains to the 2014 contract in their Subpoena issued to COD?  Why did they only ask for items tied to the 2012 contract?

Why did the IDFPR ignore the original complaint on the 2014 contract and only address the weaker of the two, the 2012 contract?

In addition, in light of all things exposed in this contract, how on earth is Bruce Schmiedl of COD going to respond to this contract.  A contract which explicitly assigns obligations to the Architect of which they name Herricane Graphics, who we all know is not an Architect.

More on that in IDFPR Part IV.

Please consider a donation to the Edgar County Watchdogs.
[wp_eStore_donate id=1]