The Commonwealth Court made a decision last week in the six-year-long civil dispute between Bob Cummins Construction and Bradford Sanitary Authority, sending the case back to trial court to re-argue matters relating to change orders in the building of the $17 million wastewater treatment plant.

According to a statement released by Bob Cummins, “The Commonwealth Court in their opinion entirely changed the analytical framework for this case when they determined that the (sequencing batch reactor) specification was a ‘performance’ specification, as opposed to a ‘design’ specification. In a performance specification there is no traditional design by the engineer, rather the engineer simply tells the contractor to come up with a design that meets the performance criteria. A design specification on the other hand sets forth the specifics of the design (i.e., length, width, height, equipment details, etc.) that the contractor must adhere to. This was a design contract until the Commonwealth Court changed it.”

In 2013, the authority issued an invitation for bids for contractors for the project, designating ABJ Sanitaire as its primary choice as acceptable manufacturer for SBRs, while Ashbrook Simon Hartley as second and Aqua Aerobics as third choice. The contract stated that should the second or third choice be selected, and changes required would be the contractors responsibility.

Cummins chose Ashbrook, “at a savings to taxpayers,” the company stated.

After the SBR was put into operation in 2015, an influent overflow problem was discovered, according to background in the court’s memorandum. “Cummins claimed (the problem) was due to the 20-inch influent piping being too small to accommodate the Ashbrook system’s sequencing. The Authority disputed that the piping size was the cause” and said “a different piping configuration was necessary to accommodate the Ashbrook SBR.”

On Dec. 22, 2015, Gannett Fleming certified the project was substantially complete except for the SBR and two other items. “Because the authority believed Cummins’ performance was contrary to the contract’s provisions … it denied certain change orders and withheld Cummins’ final payment to correct or complete Cummins’ work,” the memorandum stated.

In a statement released to The Era on Friday, Bob Cummins said, “The problems now being experienced are not in the Ashbrook SBR, but are in the UV building, a completely separate facility. BSA was recently given proof of this after Cummins hired outside engineers to prove that the problem is in the Ultraviolet building, in a hydraulic study known as the McKim and Creed Report dated July 15, 2022.”

The problem in the UV building is a Gannett Fleming design, which was started after the SBR project construction was already underway.

“Moreover, this design problem in the UV building would have adversely impacted any SBR system Cummins selected, so Cummins’ selection of the Ashbrook SBR was irrelevant. In fact, the effluent water is backing up before the required 9,639 gallons per minute of water can leave the SBR. As we now know, six years later, the Ultraviolet system was not designed properly,” Cummin said. “Any system, including the engineer of record’s favorite, would have backed up, making Cummins’ selection of the Ashbrook SBR moot.”

He added, “Even though there was no problem with the effluent water quality, Cummins nonetheless offered to address the Authority’s concerns and make a modification to the system — at Cummins own expense.” However, BSA said no.

“BSA likely knew this when they sued Gannett Fleming back on January 22, 2020 for the exact same issue Cummins is now in court for,” Cummins said.

He pointed out that the Ashbrook system has performed in accordance with project specifications for seven years “and continues to perform as specified.”

Cummins said, “Prior to the project, BSA was riddled with notices of violations, relating to poor water quality coming from the facility. DEP implemented a consent order which stopped new sewer hookups and caused this project to take place. Since Cummins SBR went online in 2015 the water quality requirements have all been met and there have been zero violations.

“Now Cummins will be going back to a second trial and will attempt to win again. The case began as a $625,000 dispute for work that was done properly and not paid for. As of Friday, BSA has paid about $2 million in attorney’s fees for this long, drawn-out dispute.”

In a statement to The Era earlier this week, the Authority addressed the recent court decision, saying, “The Commonwealth Court rejected Cummins’ arguments and instead found that Cummins alone had sole contractual responsibility for performance deficiencies once it deviated from the Authority’s original SBR design.”

The court ruled, in part, that “Cummins is solely liable for defective system performance related to its Ashbrook SBR, and is prohibited from retrying its liability therefore at the new trial.”

Bob Cummins remarked that the matter will once again land in court, and once again cost money to taxpayers, like the $2 million already spent in fighting to pay a $625,000 bill for work that was done, but never paid for.

“In any case, the entire project constructed by Cummins is performing properly and in accordance with the specifications,” the company owner said. “The issue BSA is still facing is a design issue, not a construction issue. Cummins hopes to see justice done, once again, by the next jury.”