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HomeMy WebLinkAbout2007 03-13 Special Meridian City Council Special Meetina March 13. 2007 The Meridian City Council Special Meeting was called to order at 6:00 P.M. on Tuesday, March 13, 2007 by President Councilman Joe Borton. Members Present: Keith Bird, David Zaremba, Charlie Rountree and Joe Borton. Members Absent: Mayor Tammy de Weerd. Staff Present: Bill Nary, Gene Trakel, Keith Watts, Ted Baird and Will Berg. Item 1. Roll-call Attendance: Roll call. X David Zaremba X Charlie Rountree o X Joe Borton X Keith Bird Mayor Tammy de Weerd Item 2. Adoption of the Agenda: Bird: Mr. President. Borton: Mr. Bird. Bird: On our published agenda we would like to add an Item No.4, an Executive Session as per Idaho State Code 67 -2345( 1 )(f). Rountree: Second. Borton: It has been moved and seconded to adopt the agenda as amended. All those in favor. ALL AYES. MOTION CARRIED. Item 3. Hearing on Bid Protest by Designer Floors for Water Building Project: Borton: We will begin this hearing with Mr. Nary outlining the procedures that we are going to be following as we go forward. Nary: Thank you Mr. President, Members of the Council. This is a rare occasion. We don't have very many of these bid protest types of hearings and so I wanted to outline very briefly the procedure for this. We do have - the procedure was posted as well. Basically under the state statute, if there is a protest of an award of a bid, it is incumbent on the awarding entity here, the City Meridian City Council Special Meeting March 13, 2007 Page 2 of 12 Council to hear that protest and make an ultimate decision and you have a couple of options in doing that. One is you can grant the appeal - it is in front of you. It was presented by Mr. Copple at Davison, Copple and Copple on behalf of Designer Floors. Designer Floors was the unsuccessful bidder on this particular project. So, you have a written request by them through their attorney. You also have the opportunity to hear comments. We did include in this agenda a 15 minute presentation - I don't know if Mr. Copple is going to be here? (Response from audience was no, he will not). Nary: If you can make it less than 15 minutes that would certainly be great because we have to add as you saw another agenda item. The Council does have the written information from Mr. Copple. The Appellant will have the opportunity to present that to you. Before that we would like to have the purchasing agent explain how we got to this point, what the issues were in regards to the project, how the bids were done, how the process was done and how we are in front of you tonight. The other party that was initially awarded the bid as a low bidder; they did receive notice of tonight's hearing to have an opportunity to present any information they have. I haven't received anything in writing. I don't know if Mr. Watts has or the City Clerk has. I know Mr. Watts has had some phone contacts with them so he may be able to provide you some information of those contacts, then if there are any other comments and questions after that point then the Designer Floors folks can have a rebuttal time and then it is up to the Council to discuss and make a determination. You can do one of essentially three things. You can grant the appeal and award the bid to the originally unsuccessful bidder, Designer Floors. You can deny the appeal and continue to grant the award to the low bidder, which was Great Floors or you can reject all bids and basically send this back out for re-bidding process. Those are your three options that you have under the state code. State code doesn't give any additional criteria other than due process and fundamental fairness is incumbent upon this process and that is what we tried to do in setting up the time period and the like. Mr. President or Members of the Council, if you have questions, otherwise I suggest we turn it over to Mr. Watts for some background. Borton: Thank you, Mr. Nary. Before we do that a question for the Clerk - has there been any information received from Great Floors? Berg: Mr. President the only information is what you have in your packets. I haven't received anything else other than the letter from Mr. Copple and the information from the Attorney's Office. Borton: Okay, thank you. Zaremba: Mr. President. Borton: Mr. Zaremba. Meridian City Council Special Meeting March 13, 2007 Page 3 of 12 Zaremba: Just to clarify were there only two bids submitted? Nary: Mr. President, Members of the Council, Councilman Zaremba there actually were more than two bids submitted. These were basically - the awarded bid which is the low and the second low bid, which is the Appellant - there were others and Mr. Watts could probably give you more of that specific detail. Zaremba: Thank you. Borton: Keith. Watts: Good evening Council Members. I will just run through a brief synopsis here and try and be as brief as possible. The bids were issued by our Construction Manager, Kriezenbeck on January 15th and they were opened on February 8th here in Council Chambers by Kriezenbeck. All the awards - there were 22 bid packages, I believe, this was bid package number 16 that we have in front of us. The awards were approved at the Council meeting on February 20th. On February 21st, I believe, we received - February 20th, excuse me - no, it was February 21st we received a letter from Davidson, Copple and Copple on behalf of Designer Floors that they were going to appeal the award to Great Floors. We did return a letter on the 28th explaining our process and setting a hearing date for today. Great Floors was the low bidder at $18,777.00. Designer Floors was second low at $18,950.00. There were also two other bidders who responded to the bids that were higher. The low bidder, Great Floors, did not acknowledge receipt of Addendum No. 1 in their bid response package. The actual Project Manual for the bid that went out accompanying the bid documents and the plans states on page one that the City reserves the right to reject any and all proposals or waive any non-material irregularities in the bids and to accept the proposal being most advantageous to the City. There are also three other areas in the bid that also allows us to reject any bid on - excuse me - read my notes here - well, I will go through each one actually, it won't take but a brief minute here. One page 3, paragraph 3.4.4 of the Project Manual, it reads each bidder shall ascertain prior to submitting a bid that the bidder has received all addenda and that the bidder shall acknowledge their receipt in the bid. On page 5, paragraph 5.2 of the Project Manual the bid reads a bid which is in anyway incomplete or irregular is subject to rejection. Now page one of the bid proposal also states that the city reserves the right to waive any informalities in the bidding. There is also a supplementary instructions and Article 9, which states what must be submitted with their bid to be accepted, an acknowledgment of the addendum is not part of that. Those are the basic facts of the situation. My experience in 11 years of public purchasing, I have had this come up several times and when it is a non-material issue and it does not effect the bid price nor the work to be done, I have always waived that if it did not effect the outcome of the bid. That is in public purchasing; private sector may do things different than the public sector and that is what I have done. I contacted the State Purchasing Agent and also Meridian City Council Special Meeting March 13, 2007 Page 4 of 12 the Senior Project Manager for the State of Idaho Public Works and they both have told them that they also have waived in this exact situation - they would normally waive it and go with the low bidder and they have done so in the past. I spoke with the City Engineer, Len Grady, who also stated that they would consider this non-material as the addendum had nothing to do with carpet or (inaudible), which is the big package that has the protest. Any other questions? Borton: Thank you, Mr. Watts. Council any questions? Rountree: I have none. Bird: I do, Mr. President. Mr. Watts did they bring in the bids on their own forms or did you have a form for them? Watts: They were all on a form provided by Kriezenbeck. Bird: By Kriezenbeck and on that form did it state that you had acknowledged the addendums? Watts: Yes, there was a spot for them to acknowledge. Bird: That is alii have, Mr. President. Zaremba: Mr. President. Borton: Mr. Zaremba. Zaremba: Just to clarify - does the subject of Bid Package 16 is flooring? Watts: Yes. I should have stated that earlier. Package No. 16 in the bid and it is carpet and resilient flooring is the name of the package. Zaremba: And the subject of the addendum was fencing, wasn't it? Watts: Correct. Zaremba: So, unrelated? Watts: Yes. Zaremba: Even though the addendum did say you had to refer - Watts: Yes and I also called Kriezenbeck to ask how they would normally do it and in the private sector they do send out the addendum to everyone. When I have done the big packages myself, in my public experience, I wouldn't have sent them the addendum when it didn't affect their bid. That is my experience in Meridian City Council Special Meeting March 13, 2007 Page 5 of 12 the past. So, it wouldn't even have been sent to them if I had done the bid, most likely. Bird: Mr. President. Follow up on that. Borton: Mr. Bird. Bird: Why did we have it on our bid doing that - I spent 42 years in this kind of business, bidding as a subcontractor and what - everybody was responsible for addendums regardless of whether it was in your section or not. If your bid forms say that it then that is part of your bid form, am I not right? In the specs you should fill that addendum out? Watts: The actual verbiage states that each bidder shall ascertain prior to submitting a bid that the bidder has received all addenda issued and the bidder shall acknowledge their receipt in their bid. Bird: That is up to the bidder to make sure he gets all of the addenda. Watts: Yeah and the meaning for that statement is so we don't award to someone who didn't accept a bid and award a contract to them and later find out that the addendum had a material issue with their section, therefore, they would come back and have a right for an appeal or a change order. Bird: That is alii have right now. Borton: Thank you, Keith. We will turn it over to Mr. Brown as the appellant. Brown: Actually my name is Richard Brown and I am the owner of Designer Floors and have been in business for 27 years, most of it if not all of it is based upon commercial work and addendums and all the normal legal jargon that goes with a public bid opening. We are very comfortable with Tyler - he is new and fresh out of a construction management class and so he is learning the hard way tonight, but our feeling about the whole thing is that it stated in there that addendum No. 1 must and it was highlighted and bold and was underlined that it must be noted on your bid form. There was a place for the bid form to be dated so that each one of the bids or excuse me, the addendums that came out had an individual date, which they typically would. There is a spot for the addendum No. 1 and the date at which it was issued. Right or wrong, I mean it is pretty straight to us that we fill it out correctly, it is $300 and it is not a huge bid, it is some $20,000, but we are bringing some new young kids up in the trade. My opinion of it is that you fill it out correctly or you go home and try again the next time. So, we would like to see that particular bid be removed and Tyler Brown's and Designer Floors' bid be accepted if possible. So, pretty straight. Nothing real difficult. I am not really sure what the city is so concerned about - actually there was not just fencing in that, there was a long list of other items that are talked Meridian City Council Special Meeting March 13, 2007 Page 6 of 12 about. It is just excluding any floor finishes, but if I forgot to put my corporate stamp, if I forget to have a witness witness my bid bond, there are a lot of things that we could just go ahead and look past because there is two or three things that the city or the state can look past because of rule number whatever. The fact of the matter is we were right. He was wrong. I will see him at the next bid. That is my opinion. So, I appreciate any help you can see for us. Borton: Thank you, Mr. Brown. Council any questions? Bird: I have none. Borton: No, okay. T. Brown: My name is Tyler Brown. As he pointed out, I am 26 years old just getting started in this business. I have graduated from Boise State in 1999. We went through a lot of things. One of them was public works and one of the main things that they really, really hit home was you make sure everything is signed, you have bid bonds in there, proper forms are filled out, you follow the rules. If you don't follow the rules, you don't get it and that's kind of how I did it. I went about it - it took a lot of hard work and I am assuming Great Floors did as well. You know, I happened to follow it, he so happened didn't. So having said that only fencing was involved in this addendum, which is incorrect. There were bid packages 5,8,11,14,17,18,21 as well as 1 that they specifically said something is going to affect this with this addendum and so happened 9 wasn't in there, but if you look at the beginning, BRS who is the architect for the City of Meridian stated that tile color corrections, which is a finish - you know if it is a finish it might not be in my section, but it is still a finish and I think that I should have been aware as well as Brad, who is representative of Great Floors who I bid against like he stated previously I think it was $174. It is not a lot of money, but I mean ethics are ethics and rules are rules. That is one thing that I really learned going to school and to come out in the public workplace and kind of seem them sweep it under the rug is a little disappointing, hopefully we can resolve that here today. So, if you have any questions, I would be willing to answer them. Borton: Council, do you have any questions? Bird: I have none. Rountree: No. Borton: Thank you Tyler. Bird: Mr. President. Borton: Mr. Bird. Meridian City Council Special Meeting March 13, 2007 Page 7 of 12 Bird: Well, I guess we have got - well, according to this we have got Greater Floors now and I have a question for staff. Borton: It is 6:17, I don't know if anyone from Great Floors is present. I don't see anyone here in Chambers to present any information to us. The Clerk has indicated that no additional information has been provided to his office from Great Floors, so we will move through their presentation and back to staff. Keith do you have any additional comments? Nary: Mr. President, Members of the Council I just wanted to say - I do believe, I spoke with Mr. Watts that he had had prior contact with Great Floors regarding this and so maybe he could at least put on the record what the nature of the contact was and so that way it is clear. They had noticed to be here and they had (inaudible) to be present. Watts: Yes, I did call them to explain the situation that there was a bid protest and that the protest was over him not acknowledging the bid. He did acknowledge that he made that mistake and I believe he figured he would accept whatever your decision was. Bird: Mr. President. Borton: Keith what would you have done if he hadn't had his bid bond? Watts: That is absolutely immediate rejection. Bird: It doesn't say more about bid bond than it does about it acknowledging an addendum. Watts: It does say that you must submit your bid bond with your bid. Bird: And it also says you must acknowledge addendum. Watts: It is a different section that says you shall acknowledge receipt of the addenda. But, in the submittal section of the bid it does state that you must submit your bid bond. Borton: Keith are you making a distinction in that example between and using the language of the bid a material irregularity verses a non-material irregularity? Watts: Exactly. Not submitting your bid bond is definitely material to the project. Acknowledging an addenda that different affect your bid package, in my opinion is non-material. It wasn't a process issue; it was a material and non-material issue. Meridian City Council Special Meeting March 13, 2007 Page 8 of 12 Zaremba: Mr. President I don't know if I am allowed to ask this, but would I be correct in assuming that both bidders are equally qualified? Watts: It does appear so, yes. Zaremba: Okay. Nary: Mr. President. Borton: Mr. Nary. Nary: Mr. President, Members of the Council this probably seems obvious, but ultimately the decision on what is material or not material is yours and that is really the crux of the issue we are here on. Watts: I would like to say it does state several instances in the bid that you reserve the right to waive anything that you determine as non-material and that decision is naturally up to you. Borton: Any additional questions of staff? Thanks, Keith. Okay, we will turn it back over to Mr. Brown and see if you have any additional information. No. Okay, thank you. Council, Mr. Nary has outlined the options that we have before us. We received all information and testimony. Is there any discussion? Zaremba: Well, I would comment that dotting all the "I's" and crossing all of the "t's" is an important part of the bid process. I guess the way our discussion needs to go is whether we consider it as a material weakness or - what is serious and what isn't serious? Bird: Mr. President. Borton: Mr. Bird. Bird: I think what you are doing is setting a precedent and I have never - I have bid public and private jobs and everything else and I have never seen a bid form anything waived (inaudible) a bid. I mean, if you didn't have your bid form filled out right, you knew you didn't get the bid. I think we are starting something that will come down and haunt us one of these days. I think and I believe that the Great Floors was well aware of this, new it and probably expected when they found out that they didn't have it to not even have their bid read from the (inaudible), which that is the way it should have been handled, in my opinion. I consequently feel that if their bid wasn't filled out right then the next lowest bidder gets the job. Borton: Mr. Bird, I will probably take a tact on the part of the spectrum. I agree with the concerns that you share, but you know it is in at least in my perspective Meridian City Council Special Meeting March 13, 2007 Page 9 of 12 a situation where the city at all times reserves that opportunity to waive minor irregularities and I think at least from what I have been presented, it appears to me that the failure on this addendum is an oversight. I don't see it being materially related to the particular bid. I don't think it has failed to at least in my perspective. We are always mindful of being stewards of the taxpayers' dollar and we select these low bids with that in mind. I don't think, in my mind setting a precedent because of the distinction between material and non-material as Mr. Nary indicated is a determination that we make and at least from my perspective and my inclination is to deny the appeal. I am sensitive to your concerns, but by finding this to be non-material I wouldn't want to convey to anybody in the public or otherwise that any deficiencies non-material, but in this particular case and these unique facts it appears to be a non-material irregularity, which we can waive and I would be inclined to do so. Bird: Mr. President. Borton: Mr. Bird. Bird: I would disagree the point that we never lose the opportunity to make a decision or to throw something out by doing it right. If you are going to waiver like this, why even have it in your bid form? Just take a chance and then someday somebody - and it has been done in construction - look at plans and know that (inaudible--) so they know there is going to be a lot of change orders, so consequently they lowball the original bid and then make it up on the change orders. I just - morally in the construction trade and being in public I know what this State Purchaser said and what everybody else said, but I have bid with the state and I have bid with the cities and every time if you are bid wasn't filled out right, they didn't even read it. That is the way it should have been. If you don't want to fill out it right, don't state in your specs - just take it and take your chance. Rountree: I do have a question for Keith. Keith was is the criticality in the timeline on this? Is there - Watts: It does not appear to be critical at all. It is something that is not going to - we definitely would have time to re-bid this if you chose to do so. Rountree: Thank you. Mr. President having heard both sides and probably could make an argument either way, though I do tend to gravitate towards Mr. Bird having been in the business that lived and died by bids and knowing full well that we are going to have some fairly significant bidding going on in the city in the next few months and years - by way of taking a middle of the road I am suggesting that we reject the bids and re-bid it and move forward. I know it is not a lot of money, but I would say that if there was a lot of money between the two differences. Meridian City Council Special Meeting March 13, 2007 Page 10 of 12 Borton: Councilman Rountree - I just - what we have got now three opinions - but the integrity of the process is paramount tonight. I 1 00 percent agree with the sentiments of yourself and Councilman Bird in that regard. Mr. Zaremba. Zaremba: I guess where I tip and against the - again there are good arguments either way. I think the subject matter of the addendum is immaterial; it does not necessarily apply to this package. Whether or not the bid package is filled out correctly is not so immaterial, which is the point that I believe Councilman Bird is making. I do agree that the city maintains the right to decide what is material and what isn't material, but I think I am leaning more towards Mr. Bird's feeling that you don't get to the materiality of the subject until the format is correct. As I said where all the "I's" are dotted and all the "t's" are crossed, but I could also support the idea of perhaps of throwing out all of the bids except that I wonder if since these bids are now opened that may give some of the other bidders some knowledge that they didn't previously have and therefore, taint the process. Honestly, I don't feel strongly either way, but I think I am leaning towards Councilman Bird's opinion. Bird: Mr. President. Borton: Mr. Bird. Bird: I liked Charlie's idea real well, if we were going to change something, but personally if I was Designer Floors I wouldn't even go back and re-bid it. I would move onto a job that I didn't have to put up with the hassle because I bid this job, did exactly what they told me to do and if you re-bid it without change in anything that is not fair. I do like the idea of doing that, but I just don't think it is fair. So, I would make a motion that we award the bid to the lowest bidder that filled out the bid form correctly. Zaremba: I will second that. Borton: It has been moved and seconded to uphold the protest and grant the appeal, to paraphrase Councilman Bird's motion and award the bid to the second lowest bidder, Designer Floors, if I stated that correct. Bird: That is right. That is better than mine. Borton: Any discussion? Zaremba: Mr. President. Borton: Mr. Zaremba. Zaremba: I would just also comment that I think our purchasing agent was well within his rights to make the decision the way that he made it and the bidder was Meridian City Council Special Meeting March 13, 2007 Page 11 of 12 well within their rights to appeal that and I think we are making the right decision, even though it is not the decision that the purchasing agent made, but I don't think the purchasing agent did anything wrong. Rountree: Mr. President. Borton: Mr. Rountree. Rountree: I go back to my previous comment in the particular pieces that related to the process - in the precedent in the fact that we are going to be seeing numerous bids in the near term for major construction that I am probably inclined to be favorable in the motion so we don't establish a precedence that we see more and more of these and that we will hold fast to the integrity of the process, no matter how minor the outcome might be. Borton: Councilman Rountree I tend to agree with you and your concerns as we move forward in the integrity of the process and I think we all would agree that we are reserving the right it any bid package on a case by case basis to waive minor irregularities, but I think Councilman Zaremba compliments staff very well that they have exercised their discretion well. Going forward I could see support of the motion be a definite value to the city. So, any further discussion, if not, Mr. Berg, please call roll. Berg: Thank you Mr. President, Members of the Council roll call vote. Roll Call Vote: Bird, aye; Zaremba, aye; Rountree, aye; Borton, aye; ALL AYES. MOTION CARRIED. Nary: Mr. President. Borton: Mr. Nary. Nary: Mr. President, Members of the Council we will prepare a written decision and order for your consent agenda for final approval. Borton: Thank you. Rountree: Mr. President if I might a congratulations to young Mr. Brown on finishing college. I know your parents are very proud of you. Borton: That brings us to Item 4 of the Special Meeting agenda. Item 4. Executive Session per Idaho Code 67-2345(1)(f): Bird: Mr. President. Meridian City Council Special Meeting March 13, 2007 Page 12 of 12 Borton: Mr. Bird. Bird: I move we go into Executive Session as per 67-2345 (1 )(f). Rountree: Second. Borton: It has been moved and seconded to go into Executive Session. Mr. Berg, please call roll. Berg: Thank you, Mr. President, Members of Council roll call vote. Roll Call Vote: Borton, aye; Zaremba, aye; Rountree, aye; Bird, aye; ALL AYES. MOTION CARRIED. EXECUTIVE SESSION: Bird: Mr. President I move that we come out of Executive Session. Rountree: Second. Borton: It has been moved and seconded to come out of Executive Session. All in favor say aye. ALL AYES. MOTION CARRIED. Bird: Mr. President, I move to adjourn. Rountree: Second. Borton: It has been moved and second to adjourn the Special Meeting. All in favor say aye. ALL AYES. MOTION CARRIED. MEETING ADJOURNED AT 7:03 P.M. (TAPE ON FILE OF THESE PROCEEDINGS) APPROVED: g \\\HIIIII/ ~ \\\\ 111I 7~~ \~ or MES';;", TAMMY i&WEERD, MAYOrl O~r~r('o..~ \ , - :: .... :: ~ TEIS. ~~ ,-: . ;: 1""\:1 1 1Ul;.~.... . ~ ~ .,,~ . WILLI,M' G. ~ERG, JR., ~ ~ ~Gus ~:J/.o ~ ~ <J r lq-1, ' ~/ ,'('" ~ ..-;...,.. ':If '---...:,,~- r" '~"V'" ,,-' .....// / o().J !J', i..... "" h;~ ,) .:' ....~... II; / / I ~.j '>} ~ , ; .' > ~/ 10 /tJ] DATE APPROVED