The City of Greater Sudbury is in for a very public fight with Ajax-based contractor Road Surface Recycling.
“They’ve beaten the wrong dog, here,” Frank Crupi, the company’s vice-president for technology and research, told Sudbury.com.
“They should be calling us in now, and saying, ‘Look, we need to know what’s going on, we need to understand your side of it so we can sit and discuss this.’ Apparently, they don’t want to talk to us at all. They want to take us to court.”
Although no legal action has been undertaken thus far, Crupi said he’s confident the city will call in their $1.1-million performance bond.
Claiming his company was “set up to fail” with their hot in-place asphalt recycling project on The Kingsway due to pre-existing road deficiencies and the city’s overly aggressive performance targets, Crupi said he plans on having videos produced to plead his company’s case publicly.
Crupi contends the city should have let Road Surface Recycling complete the project.
“Then, if it failed next year, they could have said, ‘Look, it doesn’t work,’” he said. “The problem is, it wouldn’t fail.”
Road Surface Recycling had partially completed a hot in-place asphalt recycling pilot project on a stretch of The Kingsway between 400 metres southeast of Second Avenue and the Highway 17 bypass earlier this month, when the city issued a work stoppage, a move that seemed to surprise the contractor.
Crupi said this work stoppage was outside the scope of the contract, and that imposing a three- to four-week pause puts too great a hardship on the company.
The city said it implemented the pause so it could undertake a third-party test of asphalt work done thus far. They estimated results would take between three and four weeks to come in. However, the city hasn’t explained why it suddenly decided to pause the work.
In conversation with Sudbury.com, the city's engineering services director, David Shelsted, cited the piece of legislation that gives the city the power to stop work — Section 107-4 of the city’s general conditions — which covers situations where the contractor “fails to comply with any provisions of the contract.”
Although Crupi is eager to bring his company’s quarrel with the city into the public realm, Shelsted told Sudbury.com the city does things differently, and declined to share specifics regarding where the contractor’s work is believed to have fallen short to trigger the stoppage.
“We’re pleased they're getting third-party engineering assistance in reviewing some of the concerns that we’ve all seen on site,” Shelsted said. “We’re hoping we can work together to resolve this.”
While Shelsted wouldn’t share the city’s reasoning, the on-site concerns are highlighted in a letter dated July 25 by PNJ Engineering Inc., which Crupi provided to Sudbury.com.
In the letter, PNJ Engineering Inc.'s general manager, Param Dhillon, notes the material underneath the surface asphalt is of poor quality, meaning the hot-in-place asphalt is not making a secure bond to the material underneath, which clearly would impact road quality and asphalt longevity.
“The pulverized base (the material under the surface asphalt) and its low asphalt cement content are inhibiting the bond between the HIR (hot in-place recycling) material and the base layer,” the letter notes.
The contractor has been required to process 50 millimetres of HIR, but with only an average of approximately 40 mm of existing surface-layer asphalt to mill up and recycle, they’re digging up 10 mm of pulverized base material and mixing it with surface course to get enough material, according to the letter.
Indeed, the city’s tender document stipulates, “The design lift thickness shall be 50 mm,” and the average surface course asphalt depth on The Kingsway is recorded at 43.1 mm.
Shelsted clarified to Sudbury.com that this 43.1 mm of material is specific to the surface layer, and the city estimates the pavement thickness as being between 90 mm and 140 mm.
He would not speak to the quality of the material underneath the surface layer, but that Road Surface Recycling did not raise any concerns about it after digging core samples last year.
Despite alleging the road’s base material is of poor quality, Dhillon’s letter notes, “the contractor is still generally passing all QA/QC (quality assurance / quality control) material testing requirements.”
Dhillon also indicated the pre-existing asphalt surface did not bond with the base material either, so the city shouldn’t expect the recycled material being installed to bond either.
“If the project were to be milled and paved conventionally, the bonding issue would still exist, even with a tack coat application, due to the weak underlying granular base material.”
Crupi reached out to Sudbury.com on Thursday, believing that morning’s city council meeting was about the hot in-place asphalt recycling project his company was undertaking.
The meeting was added to the city’s calendar earlier in the week, and consisted of a lone agenda item; a closed session regarding “litigation or potential litigation / solicitor-client privilege item regarding a construction contract,” which was discussed for approximately two hours.
Although the public portion of the meeting was brief, it was long enough for Deputy Mayor Al Sizer to clarify, “No direction or recommendation emanated from this meeting.”
It’s unclear what project the city’s elected officials discussed during the two-hour closed-door meeting. Sudbury.com did not reach out to any members of city council or staff regarding Thursday’s meeting, because divulging what takes place during a closed session is prohibited by the Municipal Act and the city’s Code of Conduct.
“I don’t see how it would be about any other contract,” Crupi said. “It’s about ours.”
It’s on this point Crupi wanted to make a couple points of clarification.
“They may be assuming there’s going to be litigation, and for us, we have no intent to sue them at all,” he said. “The only thing that may threaten us is if they go after our bond, then we may have to defend that.”
Although Crupi told Sudbury.com last week that they would be unable to return to complete the project this year due to commitments with other contracts, and unlikely to return next year (they’d require certain city administrators not be involved), he’s now saying they are willing to return in the spring.
“We can’t come back there until they tell us it’s OK to come back, so we don’t even know what their position is,” Crupi said. “We want to come back and finish it.”
More will be known once the results of asphalt quality tests conducted by a third party are submitted to the city.
Per the project’s original tender document, the hot in-place asphalt recycling mix’s acceptance is based on surface tolerance, surface appearance, asphalt cement content and aggregate gradation acceptance, mix properties, lift thickness, recovered asphalt cement performance grade and penetration, and compaction requirements.
“We’re holding off on making judgment,” Shelsted said, adding that not all of these variables have been tested, and that the round of testing currently underway will fill in the remaining gaps.
Tyler Clarke covers city hall and political affairs for Sudbury.com.
