Lawsuits entangle solar development

Boston firm claims it is owed nearly $3M for work on Cape, Vineyard project

BARNSTABLE — A Boston electrical contracting firm that claims it is owed nearly $3 million in fees for work on 18 solar projects on Cape Cod and Martha's Vineyard has filed lawsuits in Barnstable Superior Court against the developers and financial backer of the installations.

Fischbach & Moore Electric Group, which counts the MBTA, Massachusetts Department of Transportation and the Massachusetts Water Resource Authority as clients, is seeking $2.9 million in payments from New York-based G&S Solar Installers and financed by investment firm RNK Capital LLC.

The lawsuits also name the Cape and Vineyard Electric Cooperative as a "reach and apply" defendant. 

Audrey Eidelman, an attorney representing the cooperative, said a reach and apply injunction request against the cooperative, if successful, would divert payments it makes for energy from the solar projects into an escrow account for Fischbach & Moore, pending resolution of the dispute. 

The cooperative was formed in 2007 to pursue renewable energy projects for its municipal members on the Cape and Vineyard. The organization, which supporters say is a benefit to towns and the environment, has drawn fire from critics who argue that ratepayer funds have been funneled through the Cape Light Compact to pay for the cooperative's projects without proper oversight. The compact was formed in 1997 to buy power for electricity customers on the Cape and Vineyard, provide energy efficiency programs and advocate for ratepayers.

G&S was hired by the cooperative in 2013 to develop solar installations at locations that include Barnstable Municipal Airport, Dennis-Yarmouth Regional High School, the Provincetown transfer station and the West Tisbury capped landfill.  In turn, G&S contracted with Fischbach & Moore in 2014 to construct the solar arrays.

Fischbach & Moore contends that RNK Capital guaranteed that it would fund the projects through financing to G&S, according to a complaint filed with the court.

Shawn Greenwood, general manager of Fischbach & Moore, said the company mobilized and paid approximately 100 union workers from the Boston and southeastern Massachusetts area to meet tight deadlines for the project's completion, and also paid vendors involved in obtaining permits for the sites.

When the case was initially presented in court in April, Greenwood said Fischbach & Moore was surprised to learn that G&S no longer owned the solar arrays and that they had been transferred to more than a dozen  other entities. Since G&S was no longer the owner, a judge dismissed Fischbach & Moore's claim but allowed it to reapply and file suit against the companies that had taken the place of G&S.

Following the court decision, G&S and RNK Capital each filed motions to dismiss the claims against them under the complaint. The next hearing in the case is scheduled for 2:30 p.m. Tuesday for arguments on the two motions to dismiss.

"Our contract was written to G&S Solar Installers," Greenwood said. "We don't believe (the cooperative) should have let the transfer of these solar arrays move from G&S to other entities."
Fischbach & Moore, which is represented by Boston-based law firm Todd & Weld, maintains that all of the solar array sites, with the exception of four that were sold to Marina Energy, are owned by entities that are controlled by the same people as G&S Solar.

Per a clause in the contract between Fischbach and Moore and G&S, the companies are also involved in arbitration proceedings in Rhode Island.  Among the claims G&S is making for not paying Fischbach & Moore is that it was overcharged by the electrical contractor. It claims the bid was based on higher union wages paid to Boston-based workers, yet lower-priced workers from a southeastern Massachusetts union — the International Brotherhood of Electrical Workers Local 223, based in Taunton — were used in the construction projects.

In the meantime, Fischbach and Moore has filed an amended complaint with Barnstable Superior Court to add the 16 entities that have been assigned G&S' original interests in the solar sites. The entities have names such as "Bway Provincetown Solar LLC," "Bway DY HS Solar" and "Bway Barnstable HS Solar." Similar to the initial case, the amended complaint also seeks to reach and apply money due and payable from the cooperative to the new entities.

The court has yet to rule on Fischbach & Moore's request to amend the complaint.

William Hunt, an attorney with Cambridge-based Clark, Hunt,  Ahern & Embry, which represents G&S, said the contract his client signed with Fischbach & Moore provided that any dispute be resolved through arbitration and not in the court system.

"The dispute is in arbitration and Fischbach & Moore is not happy," Hunt said. "They filed a lawsuit to harass and gain an unfair advantage over G&S."

There is no risk to the cooperative or its members as a result of the reach and apply attempt, Eidelman wrote in an email to the Times.

"This is not money that would be due and owing to CVEC or its members; rather, it is the money that CVEC has agreed to pay out to third parties — the PV System owners — for the net metered energy," she wrote.

She also noted there are several events that must occur before any action can be taken, the first major decision being whether the court agrees to Fischbach and Moore's request to amend the complaint to include the new owners of the solar arrays.

"We did our job," Fischbach & Moore's Greenwood said. "I believe G&S has the money and can pay us."

The company's lawsuit is the latest legal and logistical challenge related to the solar projects developed by the cooperative.

Earlier this year, Lowell-based American Capital Energy Inc. filed a 27-page complaint in Barnstable Superior Court claiming that Redwood Solar Development and Clean Focus Development, affiliated companies that financed and held leases on other cooperative projects, owed it more than $12 million in payments due on engineering, procurement and construction agreements.