Framingham Notifies Durham It’s Defaulting On Bus Contract

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FRAMINGHAM – The City of Framingham has sent notice to Durham School Services that it considers the bus company in “default” of its contract.

This is the second time in five years, the City and public school district, has notified the bus contract of its failure to live up to the contract.

The Framingham Public Schools and City of Framingham’s 5-year agreement with Durham ends on June 30, 2021. The City plans to award its next bus contract not to Durham.

The District’s and the City’s agreement with Durham was amended to “requires Durham to provide 77 buses and drivers for purposes of meeting the daily transportation needs for students in the Framingham school system.”

Durham recently told the public school district it can only provide 54 bus drivers for the 77 buses, as the district looks to bring back 50% of its students from a remote model to a hybrid model of learning.

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“In a recognition of Durham’s ongoing expenses to maintain the equipment and personnel required by the Agreement while in-person learning has been impacted by the COVID-19 pandemic, the City agreed to amend its contract with Durham to provide for a partial payment, at 50% of the daily rate, for all buses required by the Agreement but not utilized on a particular school day during the 2020-21 School Year. In return, Durham agreed to maintain all the buses and to be prepared to deploy them and resume the bus routes upon reasonable written notice from the City to Durham’s local management team,” wrote attorney Chris Brown to Durham on behalf of the City of Framingham.

“To date, the City has paid Durham $855,774.96 for buses that are not transporting students in reliance on Durham’s promise to be ready to resume full transportation services for Framingham Public Schools once public health conditions allowed. This was part of our negotiated, collaborative amendment made in October in which we agreed to pay 22% of costs related to facility, administration, and mechanic staff wages and benefits; 17% of fixed vehicle costs; and 11% of restart costs for recruiting, background checks, and retaining drivers at restart – in anticipation of this very moment in time,” wrote Attorney Brown.

“Given improving public health data regarding the COVID-19 pandemic in Framingham since the end of 2020 and the beginning of 2021, the City notified Durham on or about December 11th that Framingham Public Schools would be targeting a return of students to school for students in phases starting at the end of January. The decision was then made to return in phases from February onward with return to school dates of February 3, 2021 for Phase I and II, February 24, 2021 for Phase III, and March 3, 2021 for the final phase, Phase IV, requiring Durham to resume transportation services for Framingham’s students utilizing all 77 buses and drivers,” wrote Attorney Brown to Alejandro Castro, the chief financial officer of Durham School Services.

“At the extreme disappointment of the City, Durham has indicated in response to the City’s notice that it is only prepared to resume services for 54 buses with drivers, in material breach of the adequate labor requirement of the Agreement and Durham’s specific promise in the October 2020 amendment to be ready to resume transportation services for Framingham Public Schools using all of the buses required under the Agreement (“in whole or in part”) in exchange for the payments made by the City. Durham has plainly accepted payment in anticipation of services which will not in fact be provided to the City, unjustly enriching itself at the expense of the City’s taxpayers. The damages to the City due to Durham’s breach are further compounded by the additional costs the City may need to incur to arrange for alternative transportation for its students given Durham’s failure to meet its contractual obligations,” wrote Attorney Brown in a letter, that was copied to the 11-member City Council, the 8-member School Committee, the Superintendent of Schools Bob Tremblay, and Mayor Yvonne Spicer.

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The Framingham School Committee voted 8-0 Wednesday night to support the letter during its regular meeting. Mayor Spicer who attended the School Committee meeting disappeared during the discussion with Durham.

Prior to the public meeting, the School Committee held a closed door meeting to discuss Durham and bus service for the district.

“At a time when Framingham’s students should be focused on the excitement of finally returning to in-person learning in the classroom, nearly a year after the COVID-19 pandemic forced the sudden closure of our school buildings and transition to remote learning, Durham’s breach of the Agreement is threatening to cause a logistical nightmare for the City and the families of the many students who may be left without transportation to school due to Durham’s breach,” wrote Attorney Brown to Durham.

“The City of course recognizes the stress, fear, and uncertainty this pandemic has and continues to cause to individuals and organizations such as Durham. Yet what we do have is this firm contractual commitment and partnership, and a specific long-standing plan you were properly notified of to have Durham fulfill 100% of the City’s transportation requirements as soon as those decisions and return dates were made aware to you,” wrote Attorney Brown. “The situation is unacceptable and must be remedied at once.”

Durham appeared before the School Committee Wednesday night, but offered no solutions.

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“The City demands that Durham immediately take whatever steps are necessary to have the labor and equipment in place to fully staff all 77 buses required under the Agreement for daily transportation of Framingham’s students by March 1, 2021. The City reserves all rights relative to Durham’s ongoing breach of the Agreement, including but not limited to the City’s right to recoup the partial payments made to Durham to date during the 2020-21 School Year and the City’s rights under the Agreement to be compensated by Durham for any costs incurred by the City to secure alternative transportation for Framingham students due to Durham’s failure to provide adequate labor to fully staff all of
the buses required. The City has been willing and ready to work with you through existing operational procedures to problem solve. That mentality continues on as the City expects Durham also to meet the contractual obligation and as your website states, “…provide the
highest level of transportation safety, quality transportation, outstanding customer service and positive employee relations” to the City of Framingham,” wrote Attorney Brown.

More than 1,000 students were transported on buses on Wednesday, the first day of Phase III opening for the district.

But Framingham Public Schools Executive Director of Finance & Business Operations Lincoln Lynch IV said there were 80 students not able to be transported to school by a bus.

“Every child in Framingham should have a seat on a bus, if needed. Many of our students and families depend on this service. Honestly, I cannot believe we are in this situation again,” said District 7 School Committee member Tiffanie Maskell before the meeting.

During Wednesday night’s meeting her word were just as strong to RJ Castagno, Regional Manager for Durham School Services and
Stephen Schmuck, Senior Vice President with Durham School Services.

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“Framingham paid 50% at 10 months. We’ve been paying your salary the entire time. You guaranteed bus drivers. We expected 77 bus drivers today.,” said Maskell, who is vice chair of the School Committee.

“Time and time you let us down,” said Maskell.

Durham told the School Committee Wednesday night they had 11 bus drivers willing to come back, 10 of them if they be vaccinated against COVID-19.

District 1 School Committee member said she is the only member of the School Committee who was on the School Committee when the decision was made to privatized transportation to outsource the bus contract and the drivers in 2011. She reminded the Committee she was the lone vote against it becuase she was “afraid of situation like this” one.

“We put out trust in this company,” said Hugo of Durham.

“We have paid you in good faith,” said Hugo, who added Durham does not have a sense of urgency to fix the situation.