Contractors seeking $480 million for Bertha break lose in court

A Thurston County judge dealt a major blow to efforts by the contractor building a new State Route 99 tunnel to bill the state for damage to the giant drill Bertha.

Late Friday morning, Superior Court Judge Carol Murphy ruled that under the design-build contract, Seattle Tunnel Partners cannot seek money for damages to its equipment, and only seek reimbursement for other losses, like time delays.

Berth has reached the 1 mile mark

Court filings show contractors have filed a $480 million claim with the state to cover the cost of repairing and reinforcing Bertha.

The $480 million is six times the machine’s $80 million cost.

The interim claim, filed September 30 and not previously reported, is Seattle Tunnel Partners’ working estimate of its cost to repair Bertha, which overheated and broke down in December 2013.

In court Friday, WSDOT argued that by signing the contract, STP waived its right to recover money from damage to equipment, including the tunnel boring machine.

STP maintains Bertha was excluded from that waiver, and that in the construction industry it is typical to differentiate between key equipment like the TBM, and other construction equipment.

The judge’s ruling in the state’s favor is a milestone in the legal dispute unfolding between WSDOT and STP over liability for repairing Bertha.

In 2014, contractors filed a placeholder request with the state for $125 million to cover the cost of repairs, a request the Washington State Department of Transportation denied.

The new $480 million claim might not be the final request from STP related to the breakdown as contractors have indicated they are still tallying the costs.

Fixing Bertha took two years.

Contractors dug a giant pit on the Seattle waterfront to lift the front end of the machine to the surface for repairs.

It was also substantially reinforced to complete the tunnel drive between Pioneer Square and South Lake Union.

Contractors said last summer they now project opening the tunnel in early 2019, three years late.

Because of the delay, WSDOT’s costs have been rising, too.

In July, project leaders told legislators they need an additional $60 million in the 2017-2019 biennium.

They also warned total overruns might grow as high as $223 million by the time the project is done, that’s 6.6 percent.

The state says Bertha’s breakdown led to lots of higher costs, like longer property leases for construction.

“Two years is two years of overhead that we had not anticipated and all of the associated ancillary costs that come with delay,” WSDOT’s Chief Engineer, Linea Laird, said in July.

That overrun estimate does not include any money the state might someday be forced by a court to pay related to the breakdown.

Contractors blame the state for the breakdown, claiming WSDOT did not adequately warn about the presence of an eight inch steel pipe in Bertha’s path, which the machine struck and chewed up in December 2013, shortly before grinding to a halt.

State officials disagree that the pipe was the cause of the breakdown.

WSDOT says other factors led the machine to overheat and the seals protecting the main bearing to become contaminated.

Since the repairs, contractors say the machine has been working well, although at a slow, cautious speed.

On Thursday, WSDOT reported Bertha hit the one-mile mark in the 1.7 mile dig.

STP’s contract with the state is worth nearly $1.4 billion.

The entire budget to replace the earthquake-vulnerable Alaskan Way Viaduct is $3.1 billion, which includes 31 different projects.

KIRO 7’s Graham Johnson found the $480 million figure in documents filed in Thurston County Superior Court, where WSDOT has sued STP over tunneling delays.

Bertha’s manufacturer, Hitachi-Zosen, is a third party in that lawsuit.

Following the judge’s ruling Friday morning on a summary judgement motion, attorneys for the state, STP and Hitachi-Zosen all declined comment to KIRO 7, saying they were not authorized to speak to the media.