Taxpayers Pay When Public Officials Fail To Provide For Differing Site Condition In Public Works Bidding

Last Tuesday (June 21, 2011), Oak Harbor’s $8.35 million downtown improvement project was abruptly shut down after the contractor encountered a Native American burial site under SE Pioneer Way. The Project’s first interruption occurred on June 16th when the remains of at least three Native Americans were unearthed by the excavator on the Project. Tuesday was the first attempt to pick up where they left off, but “[a] 15-foot square was about as far as they got,” Larry Cort, a project manager for the Project stated. The additional bones were discovered by a construction worker who was excavating the roadway just a few feet from the cordoned off pit where the remains were found on June 16th. As soon as the new discovery was made, the Department of Archeology and Historic Preservation ordered that all construction activities be stopped. Strider Construction, the general contractor on the Project, stopped construction immediately.

While Native American remains are common within the State of Washington, and even more common on Whidbey Island (Oak Harbor is a community located on the Island), the most troubling part of these discoveries is that the Oak Harbor city officials knew the Project was close to a known archeological site, received instructions from the Department of Archeology and Historic Preservation on how to handle the potential situation, but yet moved ahead, ignoring the recommendations from state experts. Then, once the remains were unearthed, are reported to have lied to the public, claiming surprise and stating they had no prior knowledge that a Native American site was close to the Project.

The State Department of Archaeology and Historic Preservation wrote to the City in May 2009, informing the City that the Department was concerned the contractor may encounter archeological deposits during construction. The Department then provided a series of recommendations to monitor the construction work, develop protocols in case remains are discovered, and consult with tribes that may have a connection to the remains. Each of these recommendations would have likely kept costs and delays down. Despite such advanced notice, the City officially, blatantly and inexplicably ignored the Department’s recommendations.

City Engineer Eric Johnston, who was at the excavation site when the bones were discovered, feigned surprise after the discovery. He claimed that the City had done its due diligence by hiring an archeological firm to evaluate the project and that no indication of a Native American site had been found. This is in stark contrast to the Department’s warnings to the City over a year ago. Further, it appears that a firm was never hired, nor was an evaluation completed.

The City’s (Johnston’s) response? “I was mistaken.”

Oak Harbor’s Mayor, Jim Slownik, states that the recommendation should have been followed and that the City plans to find out what happened, as the “city has a good record of following state requirements.”

The Mayor’s statements, just weeks after he announced he will seek a second term in November, however, are a day late and a dollar short. Not only were the Native American remains at great risk of destruction and were not treated with the respect they deserved, but construction cannot resume until the project site has been cleared. In light of the number of bones found and the number of tribes that may be involved (eleven tribes were advised of the discovery), questions arise over what will become of the Project. In 2000, an expansion of the wastewater treatment plant on the Semiahmoo spit was terminated after the contractor unearthed Native American remains and artifacts on the construction site. The site was then designated a Native American burial area and historical site. After the City of Blaine settled with the Lumni Nation, the plant had to be relocated to a new site. The new treatment facility, with a price tag of over $33 million, was finally opened in 2010!

Although the City did not break any laws and the bones would have been discovered regardless, “it would have saved the City a lot of time and expense if they had followed our recommendations,” a representative from the Department said. Instead, the City has transferred this burden to Oak Harbor taxpayers, local merchants, and the general contractor, who are now forced to wait for the City to obtain an emergency permit. The Project began March 1st with a scheduled completion date of September 2, although Strider Construction was ahead of schedule. How long these discoveries will delay the project is unclear. Mayor Slownik and Johnston’s “mistakes” are costly, in more ways than one. And then, adding insult to injury, Johnston lies about the 2009 report. At the very least, one hopes that taxpayers will remember this debacle come November.

The upshot of this fiasco will be a significantly delayed public works project, a substantial claim by the contractor whose work is delayed and interrupted and possibly, litigation while the dispute is resolved in the courts. Clearly, the City’s engineers should have properly provided for the potential differing site conditions, made appropriate arrangements and included appropriate contingencies in the contract documents. When the differing site conditions were encountered (as the Department of Acheology recomended), procedures would have been in place to quickly resolve the matter and move on with the project at a minimal cost the contractor and the taxpaying public. Instead, this project will be mired down for many months, if not years while this inevitable dispute will wind its way through the dispute resolution process and possible through court intervention.

This regrettable incident comes on the heals of the RCI/Herzog claim against Sound Transit on the Central Link Project on which a Dispute Review Board (“DRB”) found that Sound Transit had “materially breached its contract.” Sound Transit also failed to account for differing site conditions in its contract and when encountered, failed to expeditiously and equitably adjust the contract price. That “mistake” by the public officials (employed by Sound Transit) to provide a through subsurface investigation, cost the taxpayers nearly $70 million. The DRB panel was critical of the Sound Transit engineers for failing to properly investigate buried utilities and contaminated soils before the project started and account for those conditions in the contract documents which would have resulted in substantial savings to the taxpaying public.

Sound Transit officials and its legal counsel candidly admitted that Sound Transit was aware of potential buried utilities and contaminated soils, but chose not to properly account for those differing site conditions in the contract drawings, instead allowed the contractor to discover the inevitable changed conditions and the project to suffer the consequent impact and delay generally associated when conditions on a construction project change.

Public works owners owe the taxpaying public (their constituents – all of us) a proper investigation of the subsurface and concealed conditions and not simply rely upon exculpatory clauses in the contract to improperly shift the risk of differing site conditions to the contractor and thereby increasing the cost of public works projects. (An earlier blog on the subject can be found here). Prudent public owners understand that the best prices in the long term are achieved when contingencies such as differing site conditions on a construction project are limited. In the long run, the taxpayers win when the risk of differing site conditions is thoroughly investigated and assumed by the entity (public works owner) best able to control that risk.

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