County, city officials OK aquatics park construction plan

The Ben Geren Aquatics Center will be designed and built using a construction manager at risk approach after the Fort Smith Board of Directors and Sebastian County Quorum Court voted tonight to approve the plan.

The chosen approach has a construction manager chosen by both governments involved from the design of the project through the completed construction.

As part of the deal, the construction manager would be required to receive bids from subcontractors for various sections of the project in an attempt to lower the overall cost of constructing the water park. Another concept, design-bid-build, was rejected as only Directors Philip Merry, Pam Weber and Justice of the Peace Danny Aldridge voted for the approach at their respective regularly scheduled meetings Tuesday night (May 21).

“I'm for the bid process. I just think it's more transparent and I think we'll get a better price with the bid process,” Weber said, adding that being in a competitive construction market would likely bring down the total price of the process.

"We're already dealing with some overages, so I'd like to get as much squeeze in the price as we can."

Director Keith Lau, who voiced what could be termed as conditional support for the project at the Board's study session last Tuesday (May 14), said his concerns about the process had been addressed.

"I'm pretty happy. I think we've come up with a compromise and addressed some of the concerns about the construction manager process," he said. "In regards to the bidding process, making sure that we have more of a competitive process, making sure we're reviewing – making sure that we have a group that will be in charge – members from the Quorum Court and Board who will pick the general manager, the construction manager, setting out flat fees for the construction manager and the architect instead of doing it on a percentage basis. And addressing some of the oversight issues."

While Lau was satisfied with the process, Aldridge made it clear he was not. Information he presented to the Court alleged that Sebastian County may not be able to legally enter into a construction manager at risk type of project.

"In a conversation with State Senator Jake Files concerning the general contractor type process versus construction manager process, he made a call to the Arkansas Attorney General's Office on my behalf to check on the legalities of doing a construction manager building process, or building project of this type and he found out that there was an Arkansas Supreme Court case that said counties could not get involved in a construction manager type program," Aldridge said. "There is an AG's opinion that says they can do it if it is open and above board. It's transparent. Well, I personally think there is some good things to say about a construction manager at risk, it's got to be transparent. Unless we can get it where the bids are sealed, they're opened in public, they go to qualified low bidders, it's not the good old boy network, then I'm opposed to doing it."

The case cited by Aldridge was Gatzke v. Weiss, a case decided by the Supreme Court of Arkansas on Dec. 11, 2008.

The opinion reads, in part, "At issue was whether article 19, section 16 of the Arkansas Constitution requires competitive bidding on all public contracts in Arkansas, including state contracts, or whether it applies only to county contracts; the Supreme Court upheld that the plain meaning of article 19, section 16 restricts its application to county contracts."

Sebastian County Judge David Hudson said concerns raised by Aldridge were deliberated by county attorneys and attorneys for the city of Fort Smith, all of whom agree that the county was legally able to enter into a construction manager at risk approach to design and construct the water park.

"Well, all of that has been reviewed by county council and city council, it's a joint endeavor, and we'll make sure that our contracting as we move forward on this is done within the intent of the law. We'll be very clear in the type of contracting that we do and also we'll be very deliberate in how we insure compliance in regard to public notification of those interested in making proposals and also in public bid openings, so that will be a very deliberate effort in that."

Aldridge said depending on how the process in selecting a construction manager and awarding subcontracts proceeds, he would consider pursuing legal action to stop what he said could be an illegal contract with a construction manager.

"I would hope it wouldn't come to that. I think there has been enough conflict with this water park so far that we want to do anything and everything we can do to keep it above board and very transparent and I would hope nothing would be done that would cloud the issue," Aldridge said.

As to why Files was involved in a Quorum Court issue, Aldridge said it was simply to ensure he received an opinion from the Attorney General's Office.

"The AG does not have to respond to a quorum court member. They do have to respond to a state senator," Aldridge said. "They can respond to a quorum court (member), but they don't have to."

Hudson said he hoped to begin the process of finding a construction manager at risk as soon as possible to ensure the aquatics center stays on target for a Memorial Day 2015 opening.