The city is breaking its own law by allowing a more than $12 million, no-bid construction contract for infrastructure at Rock Chalk Park, a local attorney specializing in construction law said today.
“The city’s own law repeatedly affirms the requirement for public bidding by requiring bids and awards to bidders,” said Chris Burger, a Lawrence attorney who also is an adjunct professor of construction law and litigation at Kansas University’s law school. “It does not authorize the city to circumvent these requirements.”
Lawrence city commissioners on Tuesday are set to approve another round of documents that will allow an entity led by Lawrence developer Thomas Fritzel to build an estimated $12.2 million worth of roads, parking lots, utility lines and other infrastructure at the sports park without going through a bidding process.
Lawrence’s city attorney, though, contended today that the city does have the legal authority to waive its standard bidding process for the sports park, which will include both a city-owned recreation center and a privately owned sports park leased to Kansas University.
“This is a unique project where the city is partnering with a number of entities,” said City Attorney Toni Wheeler. “We think the charter ordinance does authorize us to waive the bidding procedures in this circumstance.”
But Burger said his reading of the 1984 charter ordinance governing the city’s process for bidding public improvements doesn’t grant the city the ability to waive the requirement for bids.
The ordinance — Charter Ordinance No. 19 — does include the phrase “unless waived by the governing body,” but Burger said it is clear to him that the phrase does not mean the city has the right to abandon the entire bid process. He said that language is only related to the form the bids must be received in, and to whether the city must require an engineer’s estimate.
“You have to read the ordinance as a whole,” said Burger, who is an attorney with the Lawrence firm Stevens & Brand. “You can’t just say that because it has the word ‘waived’ in it that you can waive everything.”
He also points to a specific sentence in the ordinance that he says clearly requires the city to bid the project: “The governing body shall let all such work by contract to the lowest responsible bidder who submits a responsive bid, if there is any whose bid does not exceed the estimate.”
“That last sentence just shuts the door,” Burger said.
City officials originally had proposed allowing both the $10.5 million recreation center and the $12.2 million in infrastructure costs to be awarded to a Fritzel firm through a no-bid contract. But commissioners earlier this year shifted gears and required a bid for the recreation center after members of the public expressed concern.
But the city continued on with the no-bid contract for the infrastructure, which will serve both the recreation center and the privately owned sports park that will be used by KU. Questions about whether the city has the authority to enter into a no-bid contract began to mount after the infrastructure cost estimates came in about $3 million higher than the city had expected. As currently proposed, the city is set to pay for at least $10.2 million of the costs, while a gift from Bill Self’s Assists Foundation is scheduled to pay for $2 million. The other partners in the project — Fritzel’s Bliss Sports and the Kansas University Endowment Association — aren’t scheduled to pay for any of the infrastructure.
Wheeler, the city attorney, conceded today that the city’s current charter ordinance related to bid procedures is not overly clear, but she said she disagrees with Burger’s analysis of it.
“I think it could be clarified,” Wheeler said. “But I don’t agree with the assessment that we are prohibited from doing this.”
In fact, the city has agreed to allow a large public project to be built without a bid before. City Manager David Corliss said the parking garage in the 900 block of New Hampshire Street was built in the 1990s as part of a development agreement with a private company, which is the same type of agreement the city is proposing to use to build the infrastructure at Rock Chalk Park.
“I’m not offering that as a legal opinion, but it is a precedent,” Corliss said.
The Journal-World attempted to research whether city commissioners in 1984 had any discussion about how Charter Ordinance 19 would be used. Neither the minutes of their meetings nor the newspaper articles about their meetings gave any indication that commissioners were aware they were approving an ordinance that would allow the city to entirely exempt itself from the bidding process.
Instead, the newspaper articles from the day presented the ordinance as primarily changing the dollar amount at which a project had to be bid. The ordinance changed it to $4,000, up from the previous amount of $2,000.
Burger said he finds it hard to believe that the City Commission in 1984 would have agreed to make a “radical departure from customary business” without having a significant discussion.
City Commissioner Mike Amyx was on the commission in 1984 when Charter Ordinance 19 was unanimously approved. Amyx today said he had no idea in 1984 that he was approving an ordinance that allowed the city to set aside its bid process for major construction projects.
“I was only under the impression that we were raising the dollar amount that requires a bid,” said Amyx, who has been the one commissioner who has consistently voted against the Rock Chalk Park project.
City commissioners this year certainly did have much discussion about waiving the bid process for the Rock Chalk Park project. But throughout the discussion, commissioners were assured by staff members that the city had the legal authority to do so.
If the city staff’s interpretation was in error, the City Commission simply could have adopted a new charter ordinance making it clear the city had the authority to waive the bidding process. But that ordinance would have created an interesting procedural twist for the project. Because it is a charter ordinance, it would have required a 60-day period where residents could have created a petition calling for the issue to be put to a citywide vote.
Burger said if his interpretation of the city’s bidding ordinance is correct, it is a “complex issue” to determine how the city could be forced to follow the ordinance. He said it is possible an interested general contractor or an ordinary taxpayer may have legal standing to challenge the city’s action in court.
“In any event, it seems the city is not going to self-correct, and a change will have to come through court intervention,” Burger said.