Brock researching options on change order work

And he is researching what might be done about this now that many of these bills have already been paid out.

Change orders are changes that are made to contracts involving taxpayer money.

As the chief bill-payer for the county, Brock could have withheld payments to the road contractors if he felt state bidding statutes were not followed.

But that option is not available after the checks have been cashed.

At the request of Collier County Commissioner Tom Henning, Brock's office recently compiled a random list of recent major county contracts over $5 million with all of the change orders that were added.

Brock said his reading of the state law is that a road project needs to be re-bid when changes to the contract add up to $250,000 or more.

He said some might disagree about whether this re-bidding would have to occur if the $250,000 increase resulted from one change order or several added together.

"I can tell you that we are concerned about any change for (road) work exceeding $250,000" from the bid amount, he said.

And that dollar threshold was crossed many times on the list that Brock presented to Henning, often in single change orders.

For example, the original contract amount for the Livingston Road Phase 1 project from Radio Road to Golden Gate Parkway was $9.054 million. After several change orders, including one that added $1.28 million to the project, the final contract amount added up to $10.3 million.

"I can tell you our preliminary legal opinion is that we believe the law would have required Livingston Road to have been re-bid," Brock said earlier this week. "It is our legal opinion, it is our legal counsel's opinion, that based upon what we saw that transpired, Livingston Road exceeded the threshold amount, requiring it to be bid (again). And that was not done, and the bill has been paid."

Brock said his office's legal counsel is exploring what options are available now that the payment was already made to Better Roads Inc.

"I can tell you there have been occasions in which this clerk's office has paid bills in the past, and later determined that based upon our requiring additional facts, that we thought the bills were unlawful, and we have gone after our money."

The original contract amount for the Livingston Road Phase 2 project from Golden Gate Parkway to Pine Ridge Road was $8.443 million. Ten change orders added $1.066 million to the project. One change order called for spending $520,100 for added material "due to problems with excavated material."

The original contract amount for a four-lane improvement project for Immokalee Road was $6.747 million. The nine change orders added $2.93 million to the price tag. Among the change orders was 50,447 square yards of additional "rip-rap" rock that was needed beyond what was outlined in the original contract.

The contract went to APAC-Florida Inc.

Wes Tanner, an area manager for the company, said his company did nothing wrong. He said the company simply bid on a project based on the design specifications that were given to it. And once they got into the project, it was discovered that massive amounts of rock needed to be added to shore up the bank of a canal on the north side of the road.

"A good portion of that change order was probably more or less dictated by the South Florida Water Management District," he said, pointing out that the rock had to be added to the bank to prevent possible erosion from undercutting the road. "From what I recall, in the initial widening contract, the shaping of the ditch bank was not in the contract. Once we added the rip-rap on the canal bank, the swale changed."

Tanner said it would be very unfair if Brock's office were to try to recoup some of the additional costs of this project from APAC.

"I don't know how you can go after the contractor. We do whatever is in the contract," he said. "We don't go out and start adding stuff to the job. Myself, personally, I don't do anything without a signed change order," he said.

County Transportation Administrator Norman Feder said in this case, the firm the county hired to design the project, Hole Montes Inc., made some errors. Feder said the county was able to recoup some of this money from Hole Montes for the design flaws.

"They found that the canal was closer to the road than expected," Feder said. "We could have finished the project and come back later and shored up the banks, if you will. But that would have been more mobilization costs and other issues. The right thing to do is to go back and replace the rock and make sure that issue is addressed."

Feder said it is difficult to avoid change orders on major projects.

"That is an issue we look at closely, to make sure we do the best we can in design. But there is no such thing as a perfect set of design plans," Feder said. "When you get out into construction, there are going to be issues under the ground. Even though you ask utility companies exactly where their lines are, once you start digging there are going to be things that will surprise you. That's part of the business."

Feder said in some cases it is not in the taxpayers' best interest to re-bid a project because of a change order.

"Would I stop the contract after $10 million has been spent and go out and re-bid?" he asked. "My question is: Does that make sense? I then tell the contractor who already has done $10 million worth of work to stop and clear the site. We pay that off and re-bid. For six months we leave the site out in that condition, and then we bring another contractor on with a new mobilization and new unit costs. Then what happens if they find another unknown situation?"

Feder said he is not an attorney so he could not comment about the legality of the change orders that have been made to these major projects. He said the county attorney's office continues to talk to Brock about the issue.

Brock has repeatedly said that he is not opposed to change orders per se, because sometimes they are needed when unexpected situations crop up. He said he simply is trying to make sure that the state law is followed.

Brock also said he is pleased to see how the commissioners are now reviewing change orders instead of leaving this up to county staff.

Under a recently revised review system, the county commissioners have the opportunity to review every change order.

All change orders that exceed by 10 percent the commission's approved contract amount, or $10,000, whichever amount is greater, are now approved by the commission. That process began last year. But in recent months, even change orders in lesser amounts are coming before the county commissioners for their review. These change orders are first approved by staff and are then ratified by the County Commission. These change orders have a narrative describing the reason for the increased project price.

Henning recently requested that the list of minor change orders be pulled from the consent agenda to be discussed on the regular agenda.

After raising concerns about a change order, he went to the project site to investigate whether it was necessary.

"I was not satisfied with what I had seen. I had our staff administration out there to explain the details of the change order. After that, I felt very comfortable that our staff sought and verified the necessity of the change order. The bottom line is the board of commissioners is going to play a more active role in these change orders."

Henning said he had many questions about the change orders in the contracts that Brock pulled for him.

"The information that the clerk provided me leaves me with a lot of questions about what's the need for the change orders," he said. "Should the design engineer hold some responsibility in the creation of a change order? What is the responsibility of the contractor ?"

Henning said the commission is getting more information from the purchasing department about change orders to answer these questions.

"And also, more importantly, is whether there is any responsibility of somebody that we hired in that project? Should they have caught this before a change order is generated?

Local Republican Party officials recently have also questioned the county's change orders. Collier County GOP Chairman Mike Carr has seen the list of projects that Brock pulled. He said the dollar amount of the change orders are disturbing.

"Everyone ought to make a profit. I'm in favor of that. I'm a good Republican. But what I've been concerned about, what the Republican Party is concerned about, is it's almost like a bait and switch, in which you have projects presented one way to the public.

"By the time they are done, they don't bear much resemblance to what was discussed in public, and a lot of the dollar amounts have changed.

"Some projects dramatically change (in price) almost instantly as the bid goes in. ... It has become an insider joke that the key is to get a bid. After that, you can start cranking out change orders."