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Appeals court: IBM breached contract with state

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The Indiana Court of Appeals has reversed a Marion County judge’s finding that IBM did not materially breach the contract it had with the state to modernize its welfare system. As a result, the appeals court ordered a determination of damages to the state.

The state and IBM entered into a billion-dollar contract to update and modernize Indiana’s welfare system in December 2006. But the process was plagued with problems and the state ended the 10-year contract in October 2009 “for cause,” in part because of IBM’s “numerous and repeated quality and timeliness failures.”

When the contract was terminated, Indiana had paid IBM nearly $437 million, plus $4.4 million for disengagement services.

The state and IBM sued each other – the state sought $170 million; IBM wanted at least $52 million. Marion Superior Judge David Dreyer in July 2012 awarded IBM $52 million, plus $10 million in prejudgment interest. He found that IBM did not materially breach the contract.

But two of the three judges on the appeals panel found this was an error, that he should have considered IBM’s failures to meet federal program targets in determining whether to terminate the contract for cause. They also held that the economic downturn and flooding that hit Indiana in 2008 should not have been considered as reasons to excuse IBM’s performance because the contract provided IBM with a remedy in the event of these issues.

“We find that the heart of this contract was to provide services to the poor in a way that complied with federal law,” Chief Judge Nancy Vaidik wrote. “In this respect IBM’s performance, as the trial court explained, ‘consistently missed the mark.’ This substandard performance by IBM, $437 million and 36 months later, went to the essence of this contract.”

The COA upheld that IBM is entitled to the $40 million in assignment fees, despite the material breach because these fees represent value to the state in the ability to assume certain subcontracts, as well as that deferred fees are not payable to IBM in the event the contract was terminated for cause.

The state no longer has to pay the $2.5 million in early termination close out payments because of IBM’s breach, but it must pay the $9.5 million for the equipment it kept after cancelling the contract.

IBM is not entitled to $10.6 million prejudgment interest, the court held. The judges remanded for a determination of the amount of fees IBM is entitled to for change orders 119 and 133 and to determine the state’s damage and offset any damages awarded to IBM as a result of its material breach.  

Judge Ezra Friedlander dissented in part, believing that IBM did not materially breach the contract and that IBM can recover transition fees.
 

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  1. If what you stated is true, then this article is entirely inaccurate. "State sells bonds" is same as "State borrows money". Supposedly the company will "pay for them". But since we are paying the company, we are still paying for this road with borrowed money, even though the state has $2 billion in the bank.

  2. Andrew hit the nail on the head. AMTRAK provides terrible service and that is why the state has found a contractor to improve the service. More trips, on-time performance, better times, cleanliness and adequate or better restrooms. WI-FI and food service will also be provided. Transit from outlying areas will also be provided. I wouldn't take it the way it is but with the above services and marketing of the service,ridership will improve and more folks will explore Indy and may even want to move here.

  3. They could take the property using eminent domain and save money by not paying the church or building a soccer field and a new driveway. Ctrwd has monthly meetings open to all customers of the district. The meetings are listed and if the customers really cared that much they would show. Ctrwd works hard in every way they can to make sure the customer is put first. Overflows damage the surrounding environment and cost a lot of money every year. There have been many upgrades done through the years to help not send flow to Carmel. Even with the upgrades ctrwd cannot always keep up. I understand how a storage tank could be an eye sore, but has anyone thought to look at other lift stations or storage tanks. Most lift stations are right in the middle of neighborhoods. Some close to schools and soccer fields, and some right in back yards, or at least next to a back yard. We all have to work together to come up with a proper solution. The proposed solution by ctrwd is the best one offered so far.

  4. Fox has comments from several people that seem to have some inside information. I would refer to their website. Changed my whole opionion of this story.

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