Freedom lawsuit unresolved

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LAWTON PUBIC SCHOOLS

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  • Photo courtesy Harper Construction Co.        Freedom Elementary School at 5720 Geronimo Rd. in Fort Sill.
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OKLAHOMA CITY – A lawsuit filed against Lawton Public Schools by the prime contractor on construction of Freedom Elementary School at Fort Sill remains unresolved after nearly three years.

Harper Construction Co. sued LPS in U.S. District Court for the Western District of Oklahoma on May 12, 2017. The San Diego, Calif., company alleges Lawton’s Independent School District #8 of Comanche County is in breach of contract for failure to pay Harper and two of its subcontractors for additional costs incurred in construction of the $42 million school. Court records indicate that depositions were scheduled to be taken in Oklahoma City from one of the subcontractors, Wind River Construction LLC of Lawton, by Harper and LPS attorneys alike, on Oct. 29, 2019. Two weeks later representatives of both sides huddled in Oklahoma City all day on Nov. 11, Veterans Day. “No resolution was reached ... we were very far apart on the numbers,” said Tom Thomas, interim superintendent of Lawton Public Schools. “I expect this will be settled in court but I haven’t been provided with an update since that meeting.” Enrollment at the school in pre-kindergarten through fifth grade numbered 1,175 students as of Oct. 1, 2019, ledgers of the Oklahoma State Department of Education reflect.

PROBLEMS WITH PIERS

LPS awarded Harper the contract for construction of a 209,800 square-foot school at Fort Sill in April 2013. Harper’s base bid was $40.5 million, approximately $5 million less than the next lowest bidder. Harper has been the prime contractor on several construction projects at the Army post directly north of Lawton. The school district provided prospective bidders with plans and specifications for the new school and a geotechnical engineering report from Terracon Consultants, Inc., which “showed the location and data associated with 35 borings” from the construction site. Based on the subsurface conditions indicated in the geotechnical report, the plans and specs required the contractor to install 549 concrete piers at varying depths to support the school and other structures. On the first day of drilling, subcontractor Wind River “encountered a very hard rock layer not depicted, or foreseeable, based on the geotechnical report” provided by LPS, Harper alleges. “This rock condition was materially different from the subsurface conditions” identified in the report. 

As Wind River continued drilling more holes, it became apparent that “a significant portion of the project site contained this hard rock in areas where piers had to be installed,” Harper contends. LPS, “through its onsite geotechnical engineer and inspectors,” directed Harper and Wind River to drill through the rock, “causing additional equipment wear and tear,” in order to enable the school’s engineer to determine whether material beneath the rock “had adequate foundation-bearing capacity.” More rock and “other unanticipated conditions” were discovered during drilling, and ultimately, the hard rock subsurface condition “was encountered in 89 of the 549 drilled piers,” Harper complains. Drilling through the subterranean formation “substantially increased” the time required to reach the depth and foundational soil required for “proper anchoring” of the piers, and caused additional “wear-and-tear equipment costs from what was reasonably anticipated,” Harper maintains.

‘EXCESSIVE’ WATER ENCOUNTERED, TOO

Besides the hard rock, Wind River reported encountering “excessive water flows at depths and locations” that were not shown in the LPS geotechnical report. The excess water required additional casings to be used during the pier installation process, and after four of the pier casings had been installed, excessive water “damaged the shafts,” Harper charges. Consequently, Harper claims, LPS ordered Harper and Wind River to abandon those four locations “and drill and install six additional piers in different locations.” Harper also alleges that by the time the project was completed, 347 of the 549 piers had to be drilled “substantially deeper” than was called for in the geotechnical report in order to reach the foundational soil (“shaley lean clay, primarily”).

That added to the drilling cost and time necessary to complete the piers, Harper alleges. The duration of the project “was ultimately extended by 101 days,” Harper claims. The work was completed, and the project was turned over to LPS for “beneficial occupancy” in 2015. Subsequently, in February 2017, LPS handed an eight-page “punch list” specifying work it considered “incomplete and non-conforming” and for which it withheld a final payment of more than $100,000. Wind River and another subcontractor, Harper Mechanical, do not have direct claims against LPS but instead have filed claims against Harper for additional compensation “due to the differing site conditions.” Harper, in turn, contends it is authorized to pass along those charges to Lawton Public Schools.

LPS asserts that “Oklahoma has not adopted pass-through claims against a public entity” such as those Harper “attempts to assert” against the Lawton public school district in behalf of the subcontractors on the Freedom School project, and thus “fails as a matter of law...” Because of LPS’s alleged breach of contract, Harper claims it has experienced direct damages of $420,610 and its subcontractor Harper Mechanical has had direct damages of $468,578. And Wind River has sued Harper for more than $2 million, “all on account of the different site conditions.”

CONTRACT CAVEATS

LPS responded that Terracon’s geotechnical report included a caveat: “This report does not reflect variations that may occur between borings, across the site, or due to the modifying effects of construction or weather. The nature and extent of such variations may not become evident until during or after construction...” The “Freedom Project Manual” also included this warning, LPS noted: “Based on the existing field conditions highlighted in the geotechnical report, it is likely that additional footage for the drilled piers may be required.” Further, “It is our intention to have no contract price adjustment for drilled pier depths,” the document continues. “Bidders must include cost to accommodate variation in-depth...” Wind River sued Harper on May 30, 2017, in the Western District federal court in Oklahoma City. Wind River contends it contracted with Harper on July 12, 2013, to provide labor and materials for concrete work related to construction of Freedom Elementary School at Fort Sill. The subcontractor was to be paid $3,545,294, court records show.

However, because of the additional work it had to perform on the project, Wind River claims Harper owes $2,126,770 plus interest and “delay fees of $980 per day” from Nov. 11, 2016. Harper contends the additional expenses incurred by Wind River are “the responsibility of the School District.” Harper filed a motion on Sept. 26, 2017, to consolidate the two lawsuits. “The cases involve common issues of fact and law,” the contractor wrote. “Judicial economy and the convenience of non-party witnesses dictates consolidation.” LPS, though, disagreed. Consolidation would be “improper,” the school district wrote, because of the “possibility of confusion and prejudice” against LPS. Also, “many key factual and legal issues in the two actions” will be unique to each case “and need to be fully explored,” and would complicate and expand the scope of “what are already two complex lawsuits.” U.S. District Judge Scott Palk has not yet ruled on the consolidation motion. A jury trial to resolve the dispute(s) would last an estimated eight days, a court document shows. Harper is represented by law firms based in San Diego and in Oklahoma City, while LPS is represented by a Tulsa law firm.