County bridge dispute could be headed to court
Work stopped on Morrison Bridge since July 5
The head of the company working on the Morrison Bridge is confident a dispute that has halted work can be resolved soon and the project can be completed on time.
'I'm pretty optimistic we can work this out,' says David Conway, president of Conway Construction, the company working on the $4.2 million project to replace the old steel grafting on the bridge.
If not, the dispute could lead to a complex and potentially costly lawsuit, according to the company's lawyers.
The bridge is owned by Multnomah County, which ordered the company to stop work on July 5 because of alleged environmental violations. A law firm representing the company challenged the need for the stoppage in an Aug. 9 letter to the county. In addition, the letter cited numerous court rulings favoring contractors in 'default termination' lawsuits.
'It is a well-established rule of law in Oregon that 'a party who prevents another from performing a duty under the terms of a contract cannot avail himself of the other's failure to perform,'' according to the 23-page letter from the firm of Yazbeck, Cloran and Bowser, PC. 'If the decision to terminate occurs, the government bears the burden of proof as to whether the termination for default was justified,' it continues, adding, 'Even of the government meets that burden, the contract may prove that the default was excusable, i.e, showing that government actions were the primary or controlling cause of the default or there was an excusable delay.'
At issue is whether the company allowed paint and other contaminants to fall from the bridge into the Willamette River, where some fish are protected by the federal Endangered Species Act. Conway admits that sparks burned small holes in a tarp placed under the bridge, and that a seam burst during heavy rains on July 18. The Oregon Department of Environmental Quality accused the company of violating state environmental laws in a July 22 letter.
Company lawyers deny any violation actually occurred, however, saying the holes were quickly fixed and the tarp had been cleaned before it tore. A laboratory test conducted by the company after the tear found only microscopic quantities of lead below federal safety standards on one portion of the tarp.
The county has given the company until Sept. 2 to submitted an approved plan for a new system to prevent river contamination. County spokesman Henry Stern says it is too soon to know what the county will do if the company misses the deadline.
Conway describes his company as a family-owned business with a successful track record on more complicated projects. It is on an Oregon Department of Transportation list of preapproved contractors and successfully underbid the second-lowest competitor for the project by more than $1 million.