Aggregate instituted a system to trick the inspectors by printing dummy batch tickets, by manually inputting the concrete quantity, mix design and time of loading using the batch computer’s demonstration mode. When inspectors came to Aggregate’s plant to check that procedures were being followed, the batch men would call the dispatchers and use the term “city plant” to signal that inspectors were present and 10/9 loads should not be sent out. In addition, when Aggregate ran out of fly ash, an important ingredient in some mix designs, Aggregate continued to supply concrete without fly ash by falsifying batch tickets to make it appear the loads contained fly ash. It is unclear how many loads without required fly ash were provided to the Big Dig.

Using the 10/9 logs, government investigators estimated that Aggregate provided 5,337 loads of 10/9 concrete to the Big Dig. In addition, the government included an estimated 1,200 loads of 10/9 concrete supplied to other public construction projects within Massachusetts. These loads totaled approximately 64,163 cubic yards of non-conforming concrete. The government paid an average of $80.90 per cubic yard of concrete. As a result, the government asserted a loss amount of $5.2 million. Overall, these non-conforming 10/9 loads amounted to approximately 1 percent of all the concrete provided by Aggregate to the Big Dig, and 0.6 percent of all concrete used in the project.

After a several week jury trial, Prosperi and Stevenson were convicted of multiple criminal offenses, including mail fraud, highway project fraud and conspiracy to defraud the government. They were sentenced by the trial court. On appeal, their sentences were affirmed.

Although it is obvious that one should not make false or misleading statements in any contract — especially with the government — for those who fail to heed this maxim the Prosperi case serves as a cautionary tale that criminal penalties can be the end result.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com