As part of our review of the MBTA’s monitoring of Keolis’s compliance with DBE requirements, we discovered that Keolis had entered into a $425,000 settlement agreement with one of the firms listed on its DBE Participation Schedule. The firm alleged that Keolis unlawfully failed to award it certain subcontracts related to its contract with the MBTA, which led to the settlement agreement. The agreement included non-disclosure and non-disparagement clauses.
These confidentiality clauses may prevent the subcontractor from sharing critical information about potential issues with Keolis’s performance under its contract with the MBTA, thereby reducing the effectiveness of MBTA oversight. For instance, the subcontractor could possess valuable information about Keolis’s process for handling DBE firms interested in work under this contract—such as whether Keolis acted in good faith, maintained fairness and transparency, and complied with federal requirements. By potentially silencing the subcontractor through the use of confidentiality language, Keolis is protected from scrutiny, compromising the ability of the MBTA and the public to hold the company accountable for its actions or inactions related to its contract with the MBTA.
We recommend that the MBTA develop and implement policies and procedures related to settlement agreements involving its subcontractors and their vendors (in connection with work being completed under an MBTA contract). Specifically, the MBTA could implement protocols recently adopted by Executive Branch agencies and could also implement a requirement to report all monetary settlement agreements to the Office of the Comptroller of the Commonwealth. These efforts would help improve accountability and transparency related to settlement agreements.
| Date published: | March 4, 2025 |
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