Contractor sues Southern Ute Growth Fund over contract

Monday, May 9, 2016 2:24 PM

A Cortez general contractor is suing the Southern Ute Growth Fund and two attorneys for $15 million over a canceled contract.

Chavez Todichiinii Construction Corp. owner Christopher Chavez, a Navajo, filed the federal lawsuit in district court in September 2015. He signed a subcontract with BWR Constructors to lay concrete in Three Springs in May 2012, but the contract was terminated in October of that year.

According to court documents, attorney Patrick Morrissey, a defendant, was asked to intervene on the grounds of Indian Preference, which he refused to do. The lawsuit also names attorney Thomas Shipps and the Southern Ute Growth Fund, the investment arm of the tribe, as defendants.

“They said I didn’t provide proof of general liability insurance, but I was never given notice,” Chavez told The Durango Herald. “My contract kept getting delayed. I tried to file a complaint with TERO (the Tribal Employment Regulatory Office) so they would investigate it to see if I was rightfully or wrongfully terminated, but they said we have no jurisdiction out there (in Three Springs), so you’re up the creek.”

Three Springs is an off-reservation community developed and owned by the Growth Fund. In accordance with Title VII of the Civil Rights Act, Three Springs is obliged to give preference to Native American-owned businesses and Native Americans in awarding contracts and subcontracts for development in the subdivision.

Any “technically qualified” Native American-owned business or Native American is guaranteed the contract if the bid is within 5 percent of the lowest qualified bid. TERO is responsible for enforcing this policy.

But Chavez said TERO officials said the entity has no jurisdiction over matters in Three Springs. Calls to the Southern Ute TERO division were not returned.

“They have no jurisdiction to implement Indian Preference off the reservation, and they don’t offer any remedy,” Chavez said.

The lawsuit claims Chavez suffered lost wages and income, mental and physical pain and bankruptcy as a result of the terminated contract.

But defendants state in court documents that Chavez’ claim is unclear and fails to identify “the actors in key allegations.” Moreover, he does not provide basis for the $15 million figure, or understand the applicability of Indian Preference or Title VII.

The defendants further allege that Title VII applies to discriminatory termination of employees, not subcontractors or contractors.

Lee Adolph, president and CEO of the Council for Tribal Employment Rights, said the application of Indian Preference and TERO enforcement vary from tribe to tribe, but generally TERO has purview over off-reservation properties owned by the tribe.

In December 2015, the defendants filed a motion for dismissal, because Chavez’ complaint does not “plausibly support a legal claim for relief.”

Calls to tribal legal staff were not returned.

The court has ordered Chavez to file a response to the defendants’ motion to dismiss the case on or before May 27.

Chavez told the Herald he would have made $10,000 on the lost contract.