BRW Contracting Inc. filed a lawsuit against the county on May 26, 2016 for “CONTRACT AND INDEBTEDNESS” in relation to the Osowaw Blvd. Bike Trail/ Sidewalk Project. An agreement for the project was signed between the county and BRW Contracting Inc. on February 10, 2015.
The project was put out to bid in 2014 and BRW was chosen by the county as the “lowest responsive responsible bidder” in December 2014. BRW bid $571,797.18 for the project, beating out Goodwin Bros., Pave-Rite, DAB Constructors and AJAX Paving Industries of FL.
Three internal reference checks indicate that BRW had completed previous projects on time and Hernando County engineering department personnel were satisfied with the results.
The county terminated the contract for cause due to poor quality of work.
On Jan. 15, 2016, Marlowe, McNabb, Machnik, P.A., legal representation of BRW, sent a letter to the county demanding payment in full ($262,366.78), arguing that the contract termination for cause was invalid.
The letter stated, “While the County may argue against the debt on the grounds of the default and termination of BRW pursuant to correspondence dated October 30, 2015 and November 20, 2015, and December 28, 2015, both the default and termination were improper and invalid. To be clear, BRW acknowledges issues with the quality of the work as produced. However, as the County is all too aware, the issues derive not from BRW’s execution of the work, but rather the design furnished by the County to BRW.”
The attorney’s statement continues,
“Pursuant to the contract, BRW was neither requested nor authorized to perform milling and leveling along the existing road. It simply wasn’t in the contract. BRW was to install the friction layer directly on top of the existing road-flaws and all. Following such a design was most likely going to lead to the top layer settling to match the flaws of the bottom layer. When BRW discovered the potential problem prior to starting work on the friction layer, it immediately notified the County, who represented that it would look into the issue. The County subsequently told BRW that no alteration would be made to the design, and directed BRW to follow the plans and simply install the friction layer directly over the existing road. Ultimately, just as BRW predicted, performance of the work pursuant to the original design led to flaws in the finished product.”
Attorney Scott Machnick determines, “As the County’s design failed to meet the warranty of constructability requirement, the County cannot hold BRW accountable for the resulting defects, and the County must meet its contractual obligation to pay BRW for the work performed.”
Concurrently with the demand for payment, BRW submitted a Request for Mediation.
The county conducted a quasi-judicial hearing on the matter on July 12, 2016 in order to “to make a final decision on the protest.”
The lawsuit is now in litigation stages. The county submitted request for admissions to BRW on May 4, 2017, which were to be answered within 30 days. Anything went unanswered would be taken as an admission. The request for admissions dealt with several bid specification details. The county also filed a request for documentation.
In a letter to the county dated June 28, 2017, BRW attorney stated that the county has a total debt of $365,608.50 with the 18% per annum interest rate. BRW offered to accept a settlement of $250,000 from the county with several conditions. Conditions include the county agreeing that the primary cause of road defects were “due to unsuitable design or incomplete testing of the existing condition of the roadway.” Additionally the settlement stipulated that both parties would agree that BRW is not responsible for the road defects and that the county will not prevent, exclude, bar or hinder BRW’s ability to bid on future projects.
Following a 30 minute executive session on July 11, 2017, County Attorney Jon Jouben explained that the result of the executive session was to offer settlement with BRW Inc. in the amount of $250,000 with no additional conditions. The company has 5 business days to accept or reject. If no response is received within 5 business days, then the offer is deemed rejected.