ESCAMBIA COUNTY, Fla. (WKRG) — On Thursday, the Escambia County Commission voted to fire the designer and builder of its new $132 million jail, the latest in an ongoing lawsuit.
Earlier last year, Whitesell-Green/Caddell, the designer and builder of the jail, sued the county to try and recover $3,458,058, alleging the county did not pay them for the project.
The county said the construction company was late by 224 days on the project, but Whitesell-Green/Caddell said most of their work took place during the COVID-19 pandemic, and as a result, encountered “loss of crews to testing and quarantine requirements, late deliveries of materials and supplies, transportation delays, delayed manufacturing of specialty items and inefficiencies of its onsite labor, staff, professional contractors and subcontractors.”
The construction company said the county’s total of 224 days is not correct, saying they were late by 189 days and 156 of those days were caused because of the COVID-19 pandemic.
The county only gave the company 33 working days of “excusable delay,” and according to court documents, the county did not issue any extensions of time for the construction project.
Richard Fillmore with the Cole, Scott and Kissane law firm is representing the county in this lawsuit. He said the timeline dispute was over “substantial completion,” which is when a temporary CO is issued the county can begin moving in staff, training staff and moving towards fully operating that building.
“We believe the most important thing to contractually focus on is final completion,” Fillmore said. “The reason it is important is just like any homeowner, any building owner, as far as the county is concerned, the important part about occupying the new jail is when it’s done. When everything is ready for the full use of that jail. And it’s our opinion that we haven’t reached that point.”
According to the design/build contract, “final completion” is “the time at which all Construction and all Work has been fully, finally and properly completed in accordance with the Contract Documents and all other duties, responsibilities, and obligations have been performed so as to entitle the Design Build Entity to submit a bill or invoice for final payment in accordance with these General Conditions. The terms finally complete and finally completed also refer to Final Completion.”
Filmore said the contract goes through, very specifically, what final completion means.
“Most importantly, it notes that the county is not restricted in time to enforce its rights under the contract,” Filmore said.
Filmore said there are active lawsuits against Whitesell-Green/Caddell by subcontractors who have not been paid yet.
“One of the important parts here that the design builder has represented to the county in some occasions has been done, paying of the subcontractors, which we know is not true,” Filmore said.
The most expensive items in the jail, which Filmore said has not been done yet, is the final Testing and Balance (TAB) of the jail’s HVAC system.
“That TAB has not occurred,” Filmore said. “There was an initial TAB. The second TAB occurred a year and a half later and effectively was not done per the specification requirements. And what that means is that the HVAC system is operating without being properly tuned to work right. It’s shortening the lifespan of that system, and ultimately, what that means is it’s going to cost the county taxpayers money.”
According to the contract, the county has the right to terminate Whitesell-Green/Caddell based on any material breaches, including refusing, failing or being unable to properly manage or perform on any project; being unable to supply the Project with sufficient numbers of workers, properly skilled workers, proper materials to maintain applicable schedules; unable to make prompt payment to subcontractors or suppliers and other breaches.
Filmore said the county has several options in the contract for what to do with the remaining funds, including paying the subcontractors or finding other contractors to finish the jail.
The commission voted unanimously to terminate the contract with Whitesell-Green/Caddell.
WKRG News 5 reached out to Whitesell-Green/Caddell. They said they are meeting tomorrow to discuss the matter.
In June, there will be a jury trail for the lawsuit.