LAWTON PUBLIC SCHOOLS
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 three-and-a-half 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.
The two sides attempted alternative dispute resolution, but the mediator informed U.S. District Judge Scott Palk on December 8 that “the case did not settle”. The issue is tentatively scheduled for the June 2021 Western District trial docket.
A jury trial to resolve the dispute(s) would last an estimated eight days, a court document shows. Enrollment at the school in pre-kindergarten through fifth grade during the 2019- 20 school year numbered 1,175 students, 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, of Lawton, “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, did not have direct claims against LPS but instead filed claims against Harper for additional compensation “due to the differing site conditions.”
Wind River contracted with Harper Construction to provide labor and materials for “concrete-related work,” in- including construction and installation of the concrete piers and structural concrete, on the Freedom School project. Harper Mechanical performed various duties such as grading, utilities, plumbing and painting, court records reflect.
Because of LPS’s alleged breach of contract, Harper claims it experienced direct damages of $420,610 and its subcontractor Harper Mechanical had direct damages of $468,578.
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 was to be paid $3,545,294, court records show. However, because of the additional work it performed on the project, Wind River claimed Harper owed it another $2,126,770. Harper contended the additional expenses incurred by Wind River were “the responsibility of the School District.”
Wind River sued Harper Construction in Western District federal court in May 2017. The two companies settled for $650,000 on January 20, 2020, court records show.