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.
