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1...Sarah suggested today that I draft a letter for Wayne to send
2...Walt indicated he will circulate his draft for comments before
Voith; State Claims
Contract v. Warranty, 9111112
Failures to Perform Submittals
Legal outside counsel
Submittals, complete review, 911118
Case Study Broadwater
Submittal Requirements on Voith Work Waived by Tudor
0910 - ..
0911 - Summary/Objective
091201 - Encountered more facts today in contract review that appear to
091202 - support recovery for DNRC under theories developed in the Preliminary
091203 - Claim Analysis, ref OF 2, and shed more light on the speed increaser
091204 - situation.
0915 - Progress
091601 - ..
091602 - Tudor Issued Improper CO Waiving Submittals, Start-Up Engineer
091604 - It appears Tudor acceeded to Voith post-bid requests to waive
091605 - submittal procedures (without change order), and then approved
091606 - elimination of an "independent" start-up Engineer (through change
091607 - order) whose duty was to stop plant operations due to equipment
091608 - difficulties until corrected.
091610 - I believe these are related matters.
091612 - [On 911116 confirmed Voith did not perform shop drawing
091613 - requirement, and Tudor failed to perform its engineering
091614 - management duties. ref SDS 5 4912]
091616 - [On 920118 full record of Voith failures. ref SDS 6 2829
091618 - ..
091619 - What else is Wrong?
091621 - A question that flows from this record is what other liberties
091622 - Voith took with the specifications that portend future equipment
091623 - failures? It appears that none of Voith's equipment has been
091624 - reviewed and approved for compliance with the contract, so it is
091625 - an open question as to what they constructed at Broadwater.
091627 - This makes the engineering review recommended on 911009 critical
091628 - to ensure DNRC receives adequate contract services from Voith,
091629 - before Voith's contract is accepted. ref SDS 1 3333
091631 - [On 920210 DNRC staff overwhelmed by effort to fix mistakes by
091632 - Voith and Tudor. ref SDS 7 8400]
0919 - Supplemental Legal Review
092001 - It might be helpful for DNRC to consult outside counsel who specialize
092002 - in public works contract law for an opinion on its best course. May-
092003 - be Peter Lamb is adequate, but a written opinion should be obtained,
092004 - not just conversation.
092006 - I suggest the following names for consideration:
092008 - Dave Buoncristiani, Esq. Ms. Anne M. Bevington, Esquire
092009 - Thelen, Marrin, Johnson & Bridges Knecht, Haley, Lawrence & Smith
092010 - 2 Embarcaderro Center 525 Market Street, 36th Floor
092011 - San Francisco, CA 94111 San Francisco, CA 94105
092012 - 415 392 6320 415 896 6930 fax 0818
092014 - Mr. William H. McInerney, Esq.
092015 - McInerney & Dillon, Law Offices
092016 - 1 Kaiser Plaza
092017 - Oakland, CA 94612
092018 - 415 465 7100
092020 - Thelen, Marrin, Johnson & Bridges specializes in construction contract
092021 - law. I have no knowledge of their experience with hydro projects, but
092022 - I know Dave Buoncristiani to be a very competent and diligent attorney
092023 - for owner's and to have a good understanding of contract law.
092025 - I have done appellate work with Ann Bevington on the type of contract
092026 - issues that appear to be involved in DNRC's case. The KHL&S firm
092027 - specializes in public works construction litigation.
092029 - I have seen Bill McInerney represent client's in construction
092030 - arbitrations and reviewed his work product as an arbitrator, and know
092031 - of his reputation to be very competent in these types of cases.
0923 - Post-Award Meeting Minutes Nov 4, 1987
092401 - We need the supplementary meeting notes cited by Voith as approving
092402 - the use of a spur gear in lieu of a helical gear. This was a
092403 - post-award meeting that is not part of contract document record, as
092404 - are the pre-award meeting minutes.
092406 - Walt furnished a binder with some good stuff, but it does not
092407 - contain the notes of the Nov 4, 1987, meeting, which Voith
092408 - submitted on July 14, 1988, to explain Tudor's contention that the
092409 - speed increaser was an unauthorized substitution.
092411 - [actually, it turned out on Nov 15, 1991, I found the Nov 4,
092412 - 1987 meeting notes at the back of the binder - they will be
092413 - incorporated into the Broadwater document record]
092415 - The binder contains pre-bid and post-bid correspondence on bid
092416 - scope and what I would characterize as inappropriate changes to
092417 - contract requirements.
092419 - These Nov 4, 1987 meeting notes further indicate that Voith and Tudor
092420 - recognized the speed increaser shop drawings required Tudor's review.
Voith; State Claims
As built drawings
Bid Documents, Plans & Specs
120801 - The Agreement section in the conformed Voith contract document has
120802 - para 7 which cites bid drawings that are not part of the conformed
120803 - specification (at least the one I have).
120805 - Need the original bid submitted by Voith, and the plans and
120806 - specifications relating to it. Possibly Voith was required to
120807 - submit a full set of these as its bid, and so it is available
120808 - intact somewhere within DNRC.
120810 - Walt supplied a non-conformed bid set, but it has handwritten
120811 - entries that suggest someone may have been contemplating changes.
120813 - Several pages of the speed increaser specification are
120814 - missing.
120816 - Other pages throughout the document are also missing.
120819 - We need to know the basis of Voith's bid. This means we need a
120820 - set of exactly what they had when their bid was submitted.
120823 - Need Project Record Set of Documents
120825 - DNRC should create a record set of Voith contract documents. One will
120826 - be the original bid and the other will be the as-built set.
120828 - It would help to have such sets available for the other contracts on
120829 - Broadwater as well.
120831 - All such documents should be maintained in a secure place where as
120832 - a matter of policy and practice they cannot be disturbed, but can
120833 - be reviewed when necessary. Walt has indicated DNRC can do this,
120834 - and should be done as soon as possible.
120837 - Sarah suggested today that I draft a letter for Wayne to send
120838 - requesting Tudor provide these records.
120841 - ..
1211 - 1710 Discussion with Walt
121201 - Missing As-builts
121203 - Walt came by and advised he has determined that DNRC does not have the
121204 - as-builts for the Sletten contract. He has written to Tudor on this
121205 - and they have indicated these documents will be provided.
121207 - This needs to be followed up.
Voith; State Claims
Disclose alternate design for speed increaser
Special Startup Test Engineer
1507 - Objective
150801 - Contract Review Findings
150803 - Walt asked about the progress of my contract review.
150805 - I explained the indications in the documents that Tudor added the
150806 - "Alternate" speed increaser option in response to an inquiry from one
150807 - bidder who contended its design would be "...equivalent to the double
150808 - helical type" specified. There is nothing in the record indicating
150809 - Tudor added this provision to save DNRC money to accept a speed
150810 - increaser of lessor capability than that in the original
150811 - specification.
150813 - There is also nothing in the record that indicates Voith was or should
150814 - be excused from the provisions of GC 6.7.2 and 6.7.3.
150816 - It further appears that Tudor and Voith mutually "deferred and
150817 - deleted" submittal requirements and that Tudor improperly permitted a
150818 - change order to eliminate the independent startup engineer, and then
150819 - failed to exercise the level of diligence in startup oversight
150820 - appropriate to a non-independent startup engineer.
Voith; State Claims
Terminate Voith, 911119
160501 - Walt said he is writing a letter to Voith to force them to perform
160502 - their work, including submit the shop drawings for the original speed
160503 - increaser. He asked my view about terminating Voith.
160505 - Initially, I emphasized that DNRC should have Tudor direct Voith to
160506 - perform, or if Tudor is terminated, the new Engineer should do this.
160508 - Walt indicated he feels DNRC cannot wait for the administrative
160509 - period required to get an Engineer.
160511 - I suggested that DNRC consider sending a notice along the following
160512 - lines:
160514 - DNRC believes the speed increaser is an unauthorized substitution
160515 - under GC 6.7.2 and 6.7.3, as represented by Tudor's resident
160516 - engineer. Voith's failure to submit requested shop drawings
160517 - supports DNRC's understanding that the speed increaser does not
160518 - meet the contract requirement. DNRC is prepared to work with
160519 - Voith to avoid undue expense to both sides, but will require
160520 - timely action by Voith.
160522 - Voith should therefore submit within 10 days its schedule for
160523 - design, engineering review, manufacturer and installation to
160524 - either exchange the speed increaser for one that meets the
160525 - specifications or to demonstrate that what Voith has installed can
160526 - be fixed to meet the objectives of the contract for this much of
160527 - the work. If Voith wishes to offer extended warranty this might
160528 - be a means to mitigate damages.
160531 - If Voith fails to perform this request, DNRC should then send an
160532 - additional notice that if Voith does not perform as requested within 7
160533 - days it will be terminated and charged any extra expense required to
160534 - correct its defective work and failure to perform. A copy of this
160535 - notice should go to Voith's bonding company.
160537 - Of course the downside to this is that there is much more to fix
160538 - than just the speed increaser. Getting someone else to correct
160539 - all of the punch list items and to review the work Voith
160540 - installed for conformance with the contract will be very
160541 - expensive. I suppose one prayer in the arbitration will be to
160542 - direct Voith to submit the shop drawings on the entire project
160543 - it has not submitted, so a review can be made.
160545 - Walt indicated he will circulate his draft for comments before
160546 - sending it.