The Mobile City Council approved a $386,329 change order on work Mayor Sandy Stimpson’s office said was related to the nearly completed Mardi Gras Park, but not before having a discussion over the move’s legality.
Before approving the change order by a 5-2 vote during their regular meeting Tuesday, councilors questioned whether the work — which was the subject of the contract — could be considered a change order to the park project, since it’s across Royal Street from the Mardi Gras Park worksite. Councilwoman Bess Rich and Councilman John Williams voted against the move.
If the project is not considered a change order, the city would be required by state law to bid it and open it up to new contractors.
City Attorney Ricardo Woods argued there is no legal definition of “change order” in the state code. He added that, in that case, the everyday definition of “change order” could be used for legal purposes.
The everyday definition, Woods told councilors, fits the project to repair curb, sidewalks, lights and signage across the street. The work comes months after Stimpson successfully requested 17 mature oak trees be removed from downtown, some of which lined the sidewalk in question.
Woods added it’s common practice, not part of the law, for state entities to consider a contract a change order if the scope of work doesn’t increase the total project cost by more than 10 percent.
However, Woods told councilors there are exceptions. For instance, he said, given the total price of the contract, the return of Carnival Cruise Line and the approaching Mardi Gras holiday, the city could argue the project demonstrated an extraordinary circumstance, which a previous attorney general’s opinion approves, as long as it remains less than 30 percent of the total project cost.
Given the total bid from Ben M. Radcliff Contractor Inc. came in at $2.1 million, Woods said the change order would be within the 30 percent threshold. In fact, he said the two change orders related to the project combined came in at less than the next-lowest bidder. There were only two bidders for the initial Mardi Gras Park project, Woods said.
In voting against the contract, Rich said during the regular meeting she didn’t want to open up the city to lawsuits.
“This work is not on the initial site of Mardi Gras Park, or the pavilion,” Rich said. “I’ve seen a lot of contracts come across my desk, but I’ve never seen a contract where the work is done outside of the site and it’s considered a change order.”
Rich also argued that the return of Carnival and Mardi Gras should not be considered extraordinary circumstances because they’ve been on the calendar for years and could have been planned for.
Woods argued the change order contract is on the same worksite as the park because it’s contiguous to Royal Street, which was disturbed during the process. He said it didn’t make sense to stall the project and keep the downtown street closed while the city goes through another bid process, which could cost more money.
Councilman Fred Richardson argued that if proximity was related to whether something was considered a change order, than what’s to stop the city from suggesting projects at the cruise terminal being considered change orders on this project.
“I think we’re making up definitions as we go,” Richardson said.
Woods told Richardson the change order was on the same worksite as the park project and would save the city time and money.
“Being able to do this to save money and save time would be a bold move,” Woods told Richardson. “This is a bold council, as you like to say. Can you do it? Sure; the question is: Will you?”
Woods compared re-bidding a portion of the project at this point to watching the signal change at a crosswalk and stopping in the middle of the street while cars moved forward.
Council Attorney Jim Rossler said he couldn’t determine if the change order requested demonstrated an “extraordinary circumstance.” Rossler added that the park project could have easily been concluded without the additional work to Royal Street.
However, Rossler also said a challenge would have to come to Mobile County Circuit Court “quickly” through a temporary restraining order. Even if the TRO is granted and the court were to find in favor of a contractor who challenged the city’s action, it would only result in the city having to bid the project, he said.
Also at issue for councilors was that the work on the change order began without their consent. Typically, the council approves all contracts before work begins. Chief of Staff Colby Cooper apologized for the oversight and asked councilors to work with the administration to make sure the project gets finished.
Richardson said this project was just one of many examples of Stimpson’s office using too much power to get what it wants. As examples, he mentioned the initial introduction of Uber and Gulf Coast Ducks being able to operate without the appropriate certificates of public convenience.
“I’m not voting on another one,” Richardson said. “This is it. Follow the law.”
Councilman Levon Manzie said he supported the change order, but hoped this same interpretation of the law could be used on other District 2 projects in the future.
As for Mardi Gras Park itself, only a few finishing touches remain before it can be officially opened, city spokesman George Talbot said. Those finishing touches include the installation of statues. The city expects to open the park by the end of the month, he said.