The electrical contractor for a 92,000-square-foot Army Reserve facility outside of Tampa, Florida has filed four claims for out-of-scope work, a payment application, and various out-of-pocket costs against the insurer of its general contractor, Hensel Phelps, for a total amount of $1,536,545.46.
F&H Electrical Contractors, Inc. was hired by Hensel to perform electrical work at the facility built to house a number of Blackhawk and Apache helicopters. It was also built to be the home of A&F Companies of the 159th Aviation Regiment — as well as various units of the Army Reserve — after they outgrew a facility previously located near Tampa International Airport.
The project ran into problems from the outset due to clearing and de-mucking the site, which is situated on the MacDill Peninsula. There was also a three-month delay in getting the necessary permits to start work on a site this big that necessitated 750,000 square feet of helicopter apron pavement, parking spaces for military equipment and staff vehicles, and replacement of a skeet and grenade range nearby.
In a Miller Act claim for a project like this, it’s required that the general contractor secures a payment bond and performance bond that covers the scope of the work. This helps protect first-tier and second-tier contractors in a situation similar to that of F&H Electrical Contractors.
To successfully file a claim in a situation such as this one, you need to take four steps:
- Deliver a notice to the prime contractor
- Get a response from the surety company
- Provide backup info on the claim to the surety company
- Wait for the surety to reject or approve the claim
In this case, F&H’s claims were rejected by Travelers & Surety Company even though the subcontractor had taken all the necessary steps. The bulk of these claims comes from delays due to Hensel or other contractors that pushed completion beyond the projected date. The out-of-pocket costs to furnish labor and materials after the scheduled date totals $901,049.08.
Another subcontractor on this project, Tampa-based McKenzie Contracting LLC, was responsible for all the earthwork and environmental work on the project. An important part of their work was not only clearing the site, but preparing the installation of deep structures for the electrical contractor, F&H, so they can perform their work.
Shortly after the start of the project, a representative at McKenzie stated “We do expect weather to be an issue, but we have implemented all of the control measures to mitigate the rainy season and that is why we have pushed the envelope on our production capabilities to try and facilitate the earthwork prior to any problems.”
The weather in the Tampa Bay area was a big factor in working towards the completion date, as well as McKenzie’s duties of ensuring that no settlement has occurred after the installation of various structures on the site. This project required the installation of 10,000 wick drains as well as 30,000 yards of surcharge materials to see how the site settles.
Because of possible delays due to weather elements or other contractors’ work, it’s highly necessary to stay aware of when to file a Miller Act claim, who to name in the suit, and where to file the suit. F&H’s case is against the surety company that made the bond, and not against Hensel. The suit was also filed in the federal district court where the project is located.
Whenever a subcontractor feels they may need to file such a claim and later hasn’t been paid, a suit must be filed within one year of the construction’s completion date, but the claim must have been filed within 90 days of the completion date.
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