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FM Diversion and Dam Increases national debt

Court Determines USACE Design Defective

United States Court of Federal Claims

Coffer Dams have been designed and used for centuries. In fact, nearly every structure that crosses water or building that is designed where water intrusion would impede construction utilizes coffer dams for safety and security.

On December 20, 2011 the United States Court of Federal Claims, case Martin Construction Co. v. United States, found the USACE liable for defective design and found that the Corps’ designer had grossly underestimated the amount of water that would flow through the cofferdam.

This raises concern for the construction of the Fargo Moorhead Dam and Diversion. In part, due to 5 rivers being crossed and the control structures that will be constructed to make the entire system functional.

The USACE has openly admitted the Fargo Moorhead Dam and Diversion is one of the largest and complex systems of it’s kind in American. Aside from the competent design of temporary dams and routing of water around the dams and aqueducts, the competent design of the permanent structure is of great importance to every living soul and structure in the wake of the construction areas.

The recent United States Court of Federal Claims offers a stark truth that the USACE are not infallible.

Excerpt from Martin Construction Co. v. United States court document:

The most troubling aspect of this case is the Corps’ adamant refusal to accept any responsibility for its defective design, even while Martin made every effort to comply with it. – Judge Thomas Wheeler


<< Download Martin Construction Co. v. United States Court Decision >>

It does raise the question on who, how and where construction design deficiencies can be reported to ensure the safety and well being of the populace that would be directly in harms way.

Here is a related article and commentary:



Court Reverses Termination for Default and Criticizes the Army Corps of Engineers
for Failing to Acknowledge Its Defective Design

Author: Michael H. Payne
<< View Original Article on Federal Construction Contracting Blog >>

A decision was issued by the United States Court of Federal Claims on December 20, 2011, in Martin Construction Co. v. United States, a case involving a Corps of Engineers construction project in North Dakota. Martin was represented by Michael Payne and Joseph Hackenbracht, of Cohen Seglias Pallas Greenhall & Furman, and the case involved a termination for default by the Omaha District of the Corps on a multi-million dollar project involving the construction of a marina. The termination occurred because the Contracting Officer concluded that Martin was at fault for failing to complete the project by the required contract completion date. Martin had argued that the Corps’ design of the cofferdam (temporary dam), which was critical to the construction of the marina, was defective and that the contractor was effectively prevented from completing the marina according to the original schedule. The Court agreed that there was a defective design and found that the Corps’ designer had grossly underestimated the amount of water that would flow through the cofferdam.

COMMENTARY: How can the residents in the Red River Valley ensure that design flaws during construction of the Fargo Moorhead Dam and Diversion won’t have negative impacts and cause losses or casualties?

The decision is extremely critical of the Corps of Engineers and amounts to a complete vindication of Martin. The Court ruled that the termination for default was wrongful and ordered a conversion to a termination for convenience. This, of course, now exposes the Corps to the payment of damages amounting to millions of dollars to compensate Martin for the costs incurred in attempting to deal with the defective design. The Court aptly noted that “The most troubling aspect of this case is the Corps’ adamant refusal to accept any responsibility for the defective design, even while Martin made every effort to comply with it.” The Court was also very critical of the Contracting Officer and stated that “Competent procurement officials would have acknowledged the agency’s obvious design mistake, made the necessary corrections, and afforded the contractor the contractor the additional time and money to complete performance.”

COMMENTARY: “..Corps adamant refusal to accept any responsibility for the defective design..” is the precise reason why the Fargo Moorhead Dam and Diversion procedural milestones should not be rubber stamped. The United States District court of Louisiana found the USACE liable for knowledge of problems relating to hurricane Katrina, yet took no corrective action to prevent losses. The stonewalling for pertinent information from the USACE and accusations of misinformation fall very short of a valid defense in light of the lack of competence and due diligence in matters of such great importance.

One has to remember, it’s the people WITH the engineering degrees, that summarily dismiss public concerns, that design failures.

The Court concluded that the “evidence is overwhelming” that Martin was entitled to a time extension and that the termination for default was improper. Judge Thomas Wheeler quoted Martin’s geotechnical and scheduling experts, and he also quoted the Plaintiff’s brief by stating that “As Plaintiff’s counsel aptly pointed out, the Defendant ‘ignored the elephant standing amongst the teacups in the living room.” The decision is an important verification to the federal contracting community that a termination for default is a “drastic action” that will not be sustained unless the government can meet its burden of proof that the termination was justified. It was unfortunate, however, that Martin was forced to suffer the consequences of the “black mark” associated with a default termination until, as in this case, justice was ultimately served.

COMMENTARY: The Defendant (USACE) “…ignored the elephant standing amongst the teacups in the living room… ”

This sounds far too familiar to the mounting opposition to the Fargo Moorhead Dam and Diversion. Various public meetings were held where the USACE served as cheerleader for the Fargo Moorhead Dam and Diversion. Despite substantial valid concerns being voiced by property owners and agencies, no formal action plan was disseminated so that the public could ensure that raised concerns were being addressed. The USACE produced multi-page documents that are riddle with disparities and contradictions, yet the project moves blindly forward with rubber stamp approval at the taxpayers expense.

Currently, there is a 3′ to 3.95′ contradiction in the 500 year flood level in the current FEIS. The matter has been brought to the attention of the USACE and the standard response was to stand by their findings in the existing documents.

So…, which data is correct? Is the 500yr flood level 904.55′, 905.5′ or 908.5′ ?

It would seem to reason that if 2 billion plus dollars are going to spent on a project that is riddled with contradictions, at least the elevation that the entire project is based upon would be a more firm elevation.

Is 3′ – 3.95′ (feet) an acceptable amount of variance to justify the Fargo Moorhead Dam and Diversion?

The citizens of Fargo Moorhead may find themselves as a Plaintiff vs Fargo, Moorhead and the USACE for future property losses and/or loss of life.

Michael H. Payne is the Chairman of the firm’s Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters, including teaming arrangements, negotiated procurements, bid protests, claims, and appeals.


This article is republished pursuant to Section 107 of the US Copyright Code Title 17


Cited Source(s):
www.uscfc.uscourts.gov
federalconstruction.phslegal.com

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