Weiss was the low bidder. His bid was $20,000 below the next highest bid. Bids ranged as high as $299,000. The work was supposed to be finished by August, before the cold weather hit.
It wasn't. According to Solicitor Stanley Margle, who is representing the Township in this matter, Weiss was granted two extensions.
When Weiss started, he hit rock 18' below the surface while drilling for the posts. Instead of stopping work and seeking approval for an extra expense with what is known as a "change order," he continued, and went $32,070 over budget. Of that sum, $27,000 is what is owed to the drilling subcontractor. The rest is profit to Weiss.
On January 19, Weiss submitted his change order, seeking an extra $32,070. But Solicitor Margle advised that nothing in the Township's contract with Weiss requites it to pay anything beyond the original, agreed-upon price. He noted it is common for construction contracts to contain what he calls a "rock clause," entitling a contractor to seek additional compensation if excavation is difficult. But he noted that there was no such clause in the agreement with Weiss.
"You are not contractually required to accept the change order," he advised Commissioners. "It is entirely discretionary with the Board."
"I'm kind of torn on which way to go," lamented Michael Hudak, who was a staunch Weiss ally during his time in office. Hudak has since recommended Weiss for the Recreation Board, as a liaison at Housenick Park, and just this past January, successfully lobbied Weiss for a seat on the Zoning Hearing Board.
Hudak noted it's hard to fault Weiss for finishing the job, rather than halting and waiting several weeks for approval, during which time costs would add up. "I can see why he moved forward," he said.
Agreeing that a rock clause is typical in construction contracts, Hudak suggested that "Maybe we were remiss" for not including such a clause in the Weiss contract.
Margle immediately rejected that argument, noting that it would be against the Township's interests to insert such a clause to benefit the contractor. He added that he prepared an addendum to the original contract, in which Weiss specifically agreed to be responsible for all excavation costs.
Tom Nolan stated that Township has no obligation, "legally or morally," to pay the change order. Malissa Davis added that, in her experience in the construction industry, change orders are approved before, and not after, the work is done.
Hudak suggested paying just the $27,000, and not the profit being sought by Weiss, but no one jumped on that compromise. Then he said he's like to see the other bids.
Commissioners took no action. Weiss himself was absent.
14 comments:
Mr.Weiss is not a thief. A township is a small place and people run into each other all the time.You are all real lucky to have someone of his integaty evan work for some of the caracters over there. Weiss is a contractor,and of the highest reputation . Go ahead and question - you may get what you wish for --corruption by some other party ,but not Mr.Weiss.
He may be a great residential remodeling contractor but for this project it appears he was in over his head. I have not read the contract but 90% of public work contracts list the excavating as unclassified which means whatever it takes to excavate is on you. Public work contracts never have a rock clause. As soon as he hit rock the job should have come to a halt until either someone from the township agreed to pay the additional or he had a lesson in reading a contract. And what kind of rock requires $32,000 worth of additional excavation for a handful of pier footings? I say he shouldn't get a nickel and is trying to pull a fast one. Litigate it and let the lawyers make some money on it.
If it looks like a duck...... walks like a duck...... waddles like a duck..... it might be the tax payers are about to get QUACKED! 32K overrun? seriously? The contractor should be turned into the Attorney General for investigation on this. It's people's tax money and this is not the taxpayers problem its the contractor.
Mr . Weiss was the low bidder and awarded the contract. Mr. Weiss was not smart enough to cover all his bases by having a clause that protected him from having to do additional work stipulated in the original contract. .He was not smart enough to stop work and seek township approval for the additional work and the extra associated cost in time and effort he incurred in order to complete the job. He has been a township commissioner and yet he was not smart enough to understand how contracts work.Mr Weiss does not appear to be a smart man.
Mr Hudak was the only commissioner who wanted to see Mr. Weiss get paid for not being smart. Mr Hudak continued to advocate for his good friend Mr. Weiss even though the township lawyer was against giving another dime to the not so smart Mr. Weiss. Mr. Hudak is supposed to be concerned how the township spends taxpayer dollars but his concern was for Mr. Weiss.Mr Hudak does not appear to be a smart man.
Does anybody in Bethlehem township know or care that neither Mr Weiss nor Mr. Hudak are smart?
There should be exact records as to the extra cost concerning rock. Just looking at the situation as I saw it the Rock was present but it didn't seem to be a major obstacle. It was also taken care of in a timely manner. I have delt with many many rock issues in building homes over the years and the cost being asked for high to begin with. I had one foundation hole that took The excavating contractor three weeks to dig out the foundation hole which normally took one day. I know rock. But first the charge looks excessive and then for Paul to ask a fee above what the remediation cost is absurd.
I have not felt with municipal contracts as to how they treat rock but if the clause is not in the agreement then too bad for Paul . I believe Ciccone was reimbursed for rock at Housenic, but he stopped work and it was negotiated and worked out. I guess the rock wasn't a major problem with Paul. By the time I was 19, I knew to include A rock clause in agreements. I guess Paul has to eat this.
I believe Mike should recuse himself from voting on giving Paul money for the rock. Too much a conflict. Mike and Paul are best buddies and I saw that firsthand while being there 4 years.
6:54, I consider both Weiss and Hudak to be intelligent, or at least as intelligent as I, although that may not be saying much. But even the smartest people sometimes goof.
I'm no construction expert, but I thought it was mistake for Paul to bid on this at all, given his relationship to the Township. It's like dating at work, which almost always leads to disaster.
Now that he has asked for a change order, it makes it look like he low-balled his bid so he could wax up the Township later. I personally don't think that is remotely true bc I know Paul from his years as a Comm'r and believe he has the highest integrity. I may not like Hudak, but I would never question his personal ethics, either. I believe both really care about the Township. They are both smart enough to know what this looks like.
I do not think it is fault that he hit rock. But if Comm'rs just paid the extra $32,000 or even the $27,000 suggested by Hudak, it looks like the fix was in. Hudak already looks bad for trying to find a way to get some money to his ally.
Having said that, I do feel for the guy. It seems unfair that he should swallow the entire $32,000. Now he could sue for the $32,000 and this matter would then get sorted out in court.
I think what I would do is offer Weiss $16,000 in exchange for a release. He is entitled to nothing, in my view, but a payment like this could resolve potential litigation.
"I believe Mike should recuse himself from voting on giving Paul money for the rock. Too much a conflict. Mike and Paul are best buddies and I saw that firsthand while being there 4 years."
That is not legally a conflict, but it makes him look bad. This is why Paul should have stayed away from this job.
Mr. O'hare, You used to be an attorney. Your comment at 10:24 PM is perplexing. You recognize that based upon the facts(No rock clause and an untimely change order request) Mr. Weiss is entitled to nothing. I hope you have retained enough of your legal training and experience to also realize that that those facts mean that Mr. Weiss has no legal basis to recover any additional funds from the Township. The Township would be foolish to offer any money to settle this matter when the facts and law are so clearly on their side. Would they entertain that idea if another contractor with no close ties to the Township and it's Board was involved? Let Mr. Weiss sue if he thinks he has a valid case. That would only result in him spending more money on legal fees(non recoverable) and highlight his inexperience and incompetence in the drafting and or reviewing of construction contract documents.
Allow met to unperplex you. I used to be a practicing attorney, but note the past tense. So feel free to dismiss my argument.
I agree that the Twp is on solid legal ground to deny any payment to Weiss. I think it was a mistake for him to even bid on this project. Because of his relationship to the Township, it would be very difficult for Comm'rs to award him anything without looking like they are taking care of one of their own. So when Hudak first suggested paying $27,000, I thought he was nutz.
But as a former lawyer (who lost his license), I know that you never really know what is going to happen once a lawsuit is filed. The Township will likely spend between $5,000-$10,000 just for Margle. This would be on top of whatever he has already charged. Though the Township would likely prevail, that's not a sure thing. Weiss could have evidence that he moved forward in reliance on promises to pay. So the Township could end up paying $32k plus the $10 or so charged by Stanley for his able counsel.
So I would make an offer to reduce the bill and have it resolved to avoid litigation that the Township would likely win, but could lose. I said $16,000, but maybe the offer should be limited to what the Township could expect to pay in attorney fees. It's fair to the citizens of the Township because it minimizes expenses. It's fair to Paul bc he gets something.
If I though Paul low-balled this bid, I would not want to talk at all, except in court. That is likely what will happen bc what i am suggesting would be very unpopular, even though it is the right thing to do.
Mr. O’Hare: I am not a lawyer but, as a retired insurance puke, I have had some exposure to contracts and the payments to avoid a higher expense in defending a lawsuit. Payments made simply to avoid higher expenses is a slippery slope as it sets a precedent. Becoming known as a soft touch could encourage unrealistic low bids knowing that increased compensation can be easily obtained.
Please note that I am making no comment on the rightness or wrongness of the positions in this situation as that is up to our duly elected and most competent commissioners (for which they receive the big bucks).
Sounds to me like Mr. Weiss is a smart man. He was a Commissioner so he knows that contractors need to request a change order before taking action and encumbering an expense. I'd also bet that he was well aware of the fact that his contract didn't contain a rock clause. Therefore, he knew he had no choice but to keep going and eat the cost. What he is doing now is rolling the dice to see how much, if anything, he can get to cover his loss. If at the end of the day he receives nothing; well, he tried. If you don't ask, you'll never receive.
Ben @ 11:09, I know some insurance companies who fight everything and others who are willing to settle if it can be done quickly. Most are in the middle. I believe that a modest settlement is what is in the Township's best interest, but I completely understand those of you who disagree and are willing to take a much tougher stand. That is what I think will happen.
Again, I say the man-Mr.Weiss does not have the bones to defaude . He is above board and will do what is right before profit . His son is the same way ,helps elderly in his neighborhood and Mr. Weiss is schooled in code issues . Don't forget a township is a small place ,if you bar everyone from commissioned work who lives in the venue- then everybody that comes in is an outsider at theoretically higher prices no matter what because of costs.--For the record, I have never hired him, he does not even know me,even if he FELL OVER ME. You are derailing a good man's reputation here. He looks after Bethlehem Twp before any profit ,because he has principles and a proprietary mind set-take this to the bank . And, I signed my name,Peter J.Cochran -
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