WEST VIRGINIA RECORD

CLARKSBURG -- An Ohio corporation has filed suit against the city of Fairmont and against a Fairmont company, alleging it was required to perform extra, unexpected work on Fairmont's sewer system for which Fairmont refused to pay it.

Tri-State Pipeline claims Fairmont solicited bids on July 11, 2007, for a sanitary sewer improvement project. Defendant Greenhorne and O'Mara designed the sanitary sewer improvements, which Fairmont provided to Tri-State and other bidders so they could anticipate the costs of the construction on which to base their bids.

"In specific reliance upon all of the information provided by the Defendants and in reliance upon its past experience in utility construction, the Plaintiff, Tri-State, submitted a bid for Contract A – Sanitary Improvement Project – SRF No. C-544393 in the aggregate amount of $1,510,965.95," the suit filed Jan. 22 in U.S. District Court for the Northern District of West Virginia states.

Because Tri-State's bid was the lowest, Fairmont awarded it the contract, according to the complaint.

However, shortly after Tri-State began performing the work for Fairmont, it discovered that Greenhorne's plans failed to accurately describe the work to be performed, the complaint says. As a result, Tri-State claims it was forced to perform additional work, to pay increased costs and to incur delays in the process.

"Specifically, the Project design, plans, specifications and contract documents were insufficient in the following, but not limited to, the following areas: (a) failure to accurately identify and locate existing utilities; (b) failure to identify appropriate detail for installation of flow control vaults; (c) failure to accurately identify and estimate actual items of work that were necessary to be installed to complete the project; (d) failure to take account problems to be encountered in of connecting with existing utilities; (e) failure to account for shut-down of the force main at the Lost Creek pump station; (f) failure to provide appropriate drawings or specifications for changes in the vaults; (g) failure to provide accurate elevations for performance of the work; (h) failure to accurately identify and locate where the new sewer lines were to be installed," the suit states.

When Tri-State discovered the numerous problems, it notified Fairmont of every item that would result in additional costs, delay or work, according to the complaint.

Despite Tri-State's constant updates, Fairmont refused to pay Tri-State for work it performed; failed to timely respond to requests for change orders; and failed to consider, process and execute Tri-State's change orders, the complaint says.

"As a direct, proximate and foreseeable result of the City of Fairmont material breach of Contract, and breach of other duties owed to Tri-State, Tri-State has suffered a substantial financial loss, including the costs of extra and additional work performed, extra cost and delay resulting from loss of productivity and efficiency, extended overhead, changed manner and method of performance and changed sequence of work, lost profits and lost business opportunities," the suit states.

In its three-count complaint, Tri-State alleges breach of contract, unjust enrichment against Fairmont and negligence against Greenhorne.

Tri-State is seeking a judgment of more than $500,000, plus pre- and post-judgment interest, costs, attorney's fees and other relief the court deems just.

Charles M. Johnstone II and Johnson W. Gabhart of Thaxton and Johnstone in Charleston will be representing it.

U.S. District Court Judge Robert E. Maxwell has been assigned to the case.

U.S. District Court case number: 1:10-cv-10