McKenna: Bertha could drill state straight into the courtroom

Jul 23, 2015, 11:47 AM | Updated: 4:55 pm

KIRO Radio political analyst Rob McKenna predicts that the state could likely head to court over de...

KIRO Radio political analyst Rob McKenna predicts that the state could likely head to court over details of the Alaskan Way Viaduct Replacement Project. (WSDOT)


Bertha may have a new timeline in place to complete a four-lane tunnel underneath Seattle’s waterfront, but skepticism over the machine’s ability to get the job done isn’t gone.

Bertha, the world’s largest boring machine, is scheduled to begin drilling again in November, after sitting idle for repairs. But some worry the tunnel project will eventually lead to the court room for a variety of reasons, such as former state attorney general and KIRO Radio political analyst Rob McKenna. He was in office at the time the contract for Bertha was being negotiated and his office handled some of those contract details.

McKenna told KIRO Radio’s Dave Ross that any complex project, like the tunnel project, is bound to end up with some litigation.

“Here, fundamentally, you have a problem that they decided to use an untested technology,” McKenna said.

Related: Seattle tunnel review panel completely bogus

“The problem is that they built the world’s biggest open-face boring machine, a machine that had never been tried on such a scale. And then there’s the possibility that it wasn’t operated correctly, that there was operator’s error,” he said. “The contractors are blaming the state for leaving a steel pipe in the ground, but there is a lot of skepticism if that is really the cause of the problem.”

Those factors add up.

“The combination of potential operator error and an untested technology, at least at this scale, was a pretty risky bet to make,” McKenna said. “They did it because they wanted to drill a single tunnel to accommodate four lanes, instead of trying to drill two parallel tunnels with two lanes each, which is what you would normally do.”

Governor Jay Inslee added to that sentiment at a recent press briefing. Inslee mentioned that if Bertha were to get stuck or be unable to complete the job, the state might have to pull out of the project.

“If this project fails, and they just can’t get Bertha going again, they decide it just won’t work, or they start it up and it breaks again, it’s going to be an enormous headache,” McKenna said. “Even though other parts of the project at the north and south ends that don’t involve the tunnel have gone quite well.”

“When a contractor goes bankrupt you hope that they are bonded, in other words, that they are insured. And you go after that bond, or that insurance, to recover [money],” he said. “Here you have a complicating factor that this joint venture is a consortium of more than one company. So what’s going bankrupt? The consortium, or the individual companies in the consortium? It would be a big mess and take years for the state to recover its losses. It will be a mess.”

That’s a factor to consider when weighing the costs of shutting down the project, or seeing it through. The state may have to face legal costs as companies fight back.

“Well, we know that one of them is very litigious,” McKenna said. “Which raises the question, why were they selected? The answer is no one else bid on the project. They ended up with Seattle Tunnel Partners as pretty much the sole bidder when everyone else pulled out. So they decided to take a chance. I know they wrote the best contract they could, but took a chance on this particular partnership, even though it includes this company with a history of litigation.”

If Bertha drills the state and the consortium of companies into the courtroom, McKenna believes that contract minutia won’t be the issue, rather, arguing over details will be what goes back and forth.

“It will be fact intensive. I don’t think the litigation will center on ambiguity and the contract language. It will center on what happened on the ground, or in this case, under the ground,” he said.

“Facts like: was there operator error in operating Bertha that caused her to break down?” he said. “Facts such as the engineering feasibility of drilling a single-bore tunnel at this scale. Facts like whether DOT left a steel pipe in the ground that Bertha bit and broke on, as the partners are claiming.

“Also, what will happen, I’ll predict, is that the various partners who don’t like each other anyway will turn on each other and that will work to our advantage,” he added.

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McKenna: Bertha could drill state straight into the courtroom