Mediation planned to settle Northwest Arkansas Regional Airport runway dust-up

Officials hope mediation of a federal lawsuit will put behind them the troubled project to replace the main runway at Northwest Arkansas Regional Airport.

"Regardless of what happens with the lawsuit, we need to come up with a plan of action to identify what needs to be done and go forward," said Scott Van Laningham, executive director of the airport.

Legal Lingo

Mediation

A non-adversarial method of alternative dispute resolution in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a decision on the matter or order an outcome. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.

Source: uslegal.com

The $26.1 million project should have been done by the end of 2013, but ongoing disputes about the work and other onsite issues are not resolved more than a year later. The contract was let in June 2012.

The W.L. Harper Company, general contractors on the project, sued the airport authority and the engineers overseeing the project just before Christmas for breach of contract and unjust enrichment, claiming it hasn't been paid for work done or material and can't pay subcontractors for their work.

The Airport Authority Board decided Wednesday to go to mediation, tentatively in late March, with a mediator who has expertise in concrete and related construction. The board voted to hire John Elrod and the Conner & Winter law firm to handle mediation. If mediation fails, the board will decide whether to retain the firm to fight the case in court.

Board members also want estimates of what mediation will cost and what defending the case in court will cost.

Elrod told the board Wednesday mediation is the best and least expensive option. He said the sides will either reach an agreement in March and get on with finishing the project or they will go their separate ways and the airport can bring in someone else to finish the job. A settlement appeared close when the lawsuit was filed, Elrod said.

The idea is to agree on a plan the sides can take to the Federal Aviation Administration, which is paying for 90 percent of the project. The FAA has refused to process some $3 million in payments because the dispute hasn't been resolved. Any cost overruns beyond what the FAA said it would pay are expected to come out of the airport's pocket.

Harper claims it substantially finished the project in early June, the work is within contract specifications and only minor items remain to be completed. They contend airport officials and engineers have prevented them from replacing about 10 slightly nonconforming concrete panels in the 8,800-foot main runway.

Airport officials filed an answer denying any wrongdoing and a counterclaim seeking damages for breach of contract and breach of implied warranty. They claim there are closer to 40 panels with cracks, 100 had to be patched and many aren't level. The airport wants an extended warranty on any repair. There are about 4,000 panels in the runway.

"From the inception of the project, Harper's performance has been substandard, late, replete with construction safety and drug violations and does not meet the contract specifications, all constituting legal breaches of the contract," according to the counterclaim.

Engineers estimate it will take another $1 million to finish the project correctly and get planes landing on the main runway again. A taxiway was converted to serve as the primary runway during the project and it is still being used.

Harper was required to have flaggers at runway and taxiway crossing points and all employees on the airfield were supposed to be badged, registered and restricted.

"In violation of Harper's contractual obligations trucks were wrecked, an employee buried in a chat pile, flaggers were often missing or lax in their work, an unbadged girlfriend of one of the heavy equipment drivers was with him in the cab of his truck, at least one driver was arrested onsite; drug paraphernalia and meth were found in the cab of an active truck; a Harper driver drove through its own guard shack," according to airport officials. "Consistent with its own inattention there was fortunately no guard in the shack at the time."

The entire main runway and base as well as drainage and electrical had to be replaced because an alkaline reaction between aggregate and sand in the concrete mix caused cracks that became noticeable about four years after the airport opened. Moisture and deicing solution exacerbated the problem.

Runways at other airports using the same concrete mix, approved by the FAA, experienced similar problems.

NW News on 01/29/2015

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