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HomeMy WebLinkAbout1997 05-13MERIDIAN CITY COUNCIL MAY ~ 3 1991 The special meeting of the Meridian City Council was called to order by Mayor Robert D. Corrie at 6:45 P.M.; MEMBERS PRESENT: waft Morrow, Glenn Bentley, Charlie Rauntree, Ron Tolsma: OTHERS PRESENT: will Berg, Wayne Croakston, Shari Stites, Gary Smith, Brad Watson: Crookston;Ida have to apologize for being late I have been dealing with this with John Fitzgerald. Whatever you want to call this is not any type of an agreement, It references portions of the documents that are included in the folder but not all of them. Brad Watson raised a question to Gary hopefully if it were able to control it would control the problem that we do have. what it says is that in the event that any provision of any one contract document conflicts with the provision of another contract document the provision in that contract document first listed below shall govern e~ccept as otherwise specifically stated. It says agreement, addendum to contract documents and it says remaining legal and procedural documents bid form, invitation to bid and information for bidders, It says detailed specification requirements, drawings, general conditions of contract, bonds, and it says the various performance bond, lobar and material, payment bond and proposal guaranteed. what is not listed there are the genera! conclusions. which is what I just read to you is out of the general,conditionsthot has the phrase that {inaudible} and it is a very good {inaudible} of what we would like to do but the conclusions are not included in the agreement. As a matter of fact I think there is only one thing out of these back addendum items that are included in the agreement. The conclusions are not included, the {inaudible} general conditions are not park of the agreement. One thing that is included in the agreement says the technical specifications, these yellow pages, but they don't state anything. Corrie: who made up this agreement Wayne? Croakston; Hubble Engineering Smith: Brad Watson put those together and I reviewed them. Hubble Engineering did the drawings, the design {inaudible}. Rountree: So are we talking about an agreement or a bid proposal? Smith: We are talking about a bid proposal, whether it is responsive bid proposal. Do you recall from the last meeting what the discrepancy was? Rauntree: I don't remember it was stated what the discrepancy was, but that it appeared to be non~respansive. Meridian City Council Special Meeting May 13, 1997 Page 2 Smith: Nat in my opinion it is not non-responsive, but there was a discrepancy. The bid document in the information far bidders required the bidder to write in the bid amount in the bid form, in numbers and written and numbers. However the bid form did not provide a space for them to write the bid amount. but of the eight bidders one bidder wrote the bid amount into the bid form, he wrote it above some printed matter an each bid item. He was the second Iow bidder. The other provision that was required was an experience factor that the bidder had to list five previous projects that were similar in nature to this project. The low bidder listed two. Preamble to this listing of qualifications said failure to complete may result in disqualification of the bid, may result. So those are the two areas of discrepancy, Morrow: Let me ask you this Gary the number 2 bidder (inaudible) for point of clarification your and my discussion was the number one bidder with 5 like jobs had listed two lift stations and the other three were deep sewer lines. Smith: The second law did Morrow: The first low (inaudible) Smith: The second low did. Morrow:lNhat did the first low day Smith: He just listed two lift station projects cattle: Twa bids came back? Smith: No, we got eight bidders Marrow: The difference between first and second in terms of dollars is~ Smith: $25,129.08 Rountree: Sa the question is da those two items and the may disqualification statement constitute anon-conforming bid. Morrow: Recognizing (inaudible) Rountree: That is also stated in there (Inaudible) 4! V Meridian City Council Special Meeting May 13, ~ g9~ Page 3 Crookston: The question becomes however is to the materiality of the problem, is this a major item or is it nat a major item. John Fitzgerald II and l have discussed and gone round and around. He came up with the possibility of being able to argue that the, who has the contract, I feel it is a very slim argument that in the contract these three or four pages of the bound volume where it says what the contract documents are and what they are not. It says that contractor shall complete all work as specified or indicated in the contract documents far Ashford Greens lift station. Then you have to go back to, in paragraph l it lists the contract documents under which the conclusions or conditions are not listed as being part of the contract. You have to go back to paragraph 8 under miscellaneous it says the terms used in this agreement which are defined in Arkicle I of the general conditions have the meanings indicated in the general conditions. The argument then is that because the general conditions were mentioned in this miscellaneous language that might be able to be used to incorporate the general conditions. I think that is very slim. If we could get the general conditions included then we could use the language that Brad UUatson mentioned and it sdys it gives the priority, if you have a conflict in a document as compared to another document then you have this listing of statements one of which has priority over the other. Under that we are okay because then we have priority under what we would like to do. To me it is a very slim argument and it gets us back to the paint of possibly having a court decide the correct reading of this contract. I have gone round and round with it and I am sorry to say that is one reason that l am quite late to this meeting, I have been working on it for a Iong period of time. Rountree: So is that a secondary argument on this thing yr is that an argument in terms of it not being responsive. Is that a concern that if the agreement is executed then we are open to claims in terms of performance and what the expectations are and what potentially could have been bid. Crookston: l think the only thing we are dealing with it an is the bid, I believe it is just the bid. Unless another issue arises. To me the question, the base question is does the City feel that they have enough of an argument to be able to defend issuing the contract to the low bidder or is it bad enough to where we say we can't get ourselves into this so we throw out all of the bids and rebid it. The problem with doing that is it puts the project substantially behind schedule, is that right Gary? This document, I am sorry to say it but it is poorly done. Morrow: Mr. Mayor I have a question for Gary, with respect to the qualifications of Summer Construction their background is? Smith: They have been in the business for years and years, they have done a lot of work around here, they have done work far the City, they have done work for Boise. can't remember the exact projects that they put on their experience sheet, Meridian City Council Special Meeting May 13, 1997 Page 4 Marrow: But on their experience sheet they only put dawn two lift stations. And they didn't put anything else to complete the eve. Smith: No Morrow: Brown put dawn two lift stations but they put down three deep sewer lines. Sa the bid document called for five similar projects to that being bid. So if you are going to discuss it from a very tight point of view Brawn only put down two also because they only had two lift stations. Did any of the bidders have five lift stations on their Smith: 1 didn't look at them in that regard. Morrow: In your opinion da these two issues constitute a substantial difference that would necessitate a rebid? Smith: well 1 don't know, that is why l asked Wayne, whether or not the general conditions were referred to in the document I don't know how critical because they are bound in the document they are part of the document. If they weren't referred to elsewhere they are in here. Morrow: My experience has been this is an editorial experience. My experience has been in my bid projects that if it is part of the plan and part of the document it is part of the plan and document and you are therefore bound by those conditions as a matter of practice. Next question is if it is a rebid process how long does that process take? Smith: well we have to advertise it twice and we have to have a week between the opening of the bids and the date of the last advertisement. So there is a minimum of two weeks there. Plus the time it would take to do whatever corrections need to be done to these documents. Morrow: Sa it that 30 days? Smith: well it is going to be 4 week minimum. Morrow: So safety is it is going to be 4 weeks that is a month. The final question is that we have some issues with respect to that particular subdivision in terms of getting this up and online and sewage disposal. we have some commitments that we as a council made to a time frame for that also do we not? Smith: Yes Morrow: Those would be my questions Mr. Mayor. (... ~.__ Meridian City Council Special Meeting May 13, 1997 Page 5 Smith: vlfe have ordered the pumping equipment and we threw out the law bid an that one because they were not responsive, they did too many things that were not in accordance with the requirements. Bentley:lNayne, do you have any mare? Crookston: Yes, an the work where it says you have to list eve projects that you have previously done. I think that is something that we can get around because it is stated right in the document it says may, l can't remember the exact language but it is a may get around. But, as I said earlier that I have a real problem with the ar in not having the conditions, special conditions included in the contract and there are other addendum that are in the contract. There is no doubt that those are in the document, but they are not stated as being part of the agreement. It has been my experience that if it is not stated as being in the agreement it is not in the agreement. But that is a decision by the Council as to whether you want to ga along with what I am suggesting and it is a very difficult route of travel that I am suggesting which is what Gary laid out to you is to rebid the project. It boils down to is it worth $~S,aDB and the passibility that we will have higher bids in rebidding it sa it could be an even greater amount. There is the passibility that it could be laver but I can't say that it will be. I am quite sure that Gary cannot say that. Corrie: Council do you want (inaudible) Morrow: l guess point of discussion my position on this is that this does fall into the minor inaudible} the issue is that I am sensitive to what vVayne is saying but in my awn personal bid experience is that when I bid the entire document and I am bound by everything in the document, all of the specifications whether it be size of welding rod ar qualifications of welders to everything else. So I see that as a matter of practice as being all encompassing. So I don't have a problem with that. I think the other thing is that the bigger unknown that is lurking out there is we have a subdivision that has homes coming on line and buyers for these homes and moving dates for those homes and we can't hold up the part of the bargain that we made. Then the bigger issue is that the one that is ~inaudibie} is satisfying those folks health requirements with respect to sewage. So, some degree we are caught between a rack and a hard place here. l think the lesser of the evils is to award and go forward with the bid. That is my point here. Rountree: I would say if we have the ability to exercise a waiver for those minor irregularities then the motion ought to be framed in that context and move forward with the awarding the bid to the Iow bidder. Carrie: I will entertain a motion however you want to do it and let's try it and see what happens. Meridian City Council Special Meeting May 13, 1997 Page 6 Marrow: Mr. Mayor, I would move that in the matter of the bid opening far the City of Meridian Ashford Lift station project that we waive any minor irregularities that may be in the bid and award the in the bid documents submitted by Sommer Construction and award the bid to Sommer Construction in the amount of $301,551.40. Rountree: Second Carrie: Motion made and seconded, motion made by Mr. Marrow, second by Mr. Rountree as stated, any further discussion? Hearing none all those in favor? ~ppased? M~T1~N CARRIED: All Yea Morrow. Mr. Mayor I would now move that we go into Executive session to discuss personnel issues and real estate issues. Rountree: Second Carrie: Motion made and seconded to go into Executive session, all those in favor? ~ppased'~ MOTION CARRIED: All Yea EXECUTIVE SESSION Corrie: City Council coming out of Executive Session at 9:15 P.M. with a discussion of personnel. l will entertain a motion for adjournment. Marrow: Sa moved Tolsma: Second Corrie: Motion made and seconded far adjournment, all those in favor? Qppased~ MOTION CARRIED: All Yea MEETING ADJOURNED AT 9:15 P.M. (TAPE ON FILE OF THESE PROCEEDINGS) APPROVED: F. 4 Meridian City Council Special Meeting May 13,1991 Page ~ ATTEST: ILLIAM ~, BERG, JR., CITY L ~ r ERT ~. CGRRIE, MAYGR ;, . .~ ~~~~`rr~1~113~1t-j~~i~ ~~~~ ~ ~~~ ~~ ~~ ~. ~~ w .~ '~~ ~ ~~ {r~~i ~~ , ~~~~~~ ~~f f f ~1t t~~~~~~~ ~~~~ ~~~ 1~~~Y~D MEMORANDUM MAV 1 3 1997 ~ ~ T4: Mayor Bob Corrie, Councilman Walt Morrow, Councilman Ron Tolsma, Councilman Charlie Rountree, Councilman Glenn Bentley, and Gary Smith, Meridian City Engineer FRDM: Wayne G. Crookston, Jr., Meridian City Attorney ~. DATE: May 13, 1997 RE: Ashford Greens Lift Station Project Gary Smith has asked me far my opinion as to whether or not the City can award the bid to the contractor who bid the lowest reasonable price if they are a reasonable and prudent contractor. There were two problems with this contract. The first problem is that the bid schedule an page 11 of the Contract forms only has a space for either a numeric ar a written bid, but hasn't no space for both a numerical and written bid. The second problem is that on page 15 the bidder is suppose to submit contractor qualification information. Qnly one bidder filled out five projects and listed all of the information required. With regard to the numeric and written bid amounts, the contract documents state as follows: INVITATION TD SID Page 1 "Bids must be submitted on the prescribed form and each bidder must include with the bid a bid security in the amount, form and subject to the conditions provided in the information fvr bidders." "The City of Meridian reserves the right to waive any informalities or to reject any or all bids and to postpone the award of the contract not more than sixty days from the bid opening date, and to award the contract, if awarded, based on the best interests of the City." The invitation to bid also states that "A pre-bid meeting will be held at 1~:0~ a.m. April 24, 1997 at the Waste Water Treatment Plant. Bidders are extremely encouraged to attend." I have no idea how many bidders attended ar whether or not the question about insufficient space to place both written and numerical bids on the BID SCHEDULE arose at that meeting. INFQRMATIDN FDR BIDDERS Page 2 5. TYPE QF BID Page 3 "The total bid is based on the sum of both unit price and lump sum bid items. A unit price or lump sum as required in the bid shall be given for each bid item. A total bid price shall be submitted in the appropriate place in the bid schedule." Comment This does not indicate that both written and numeric bids should be given. 6. INTERPRETATIQNS Page 3 "All requests for interpretations about the meaning or intent of the contract documents shall be submitted to the owner in writing." It is my understanding that there were no questions about a space to place both a numeric and written bid amount on the bid schedule. 9. BID FORM Page 4 "The bid price of each item on this form must be stated in words and numerals. In case of a conflict, the words will take precedence." 14. AWARD of CONTRACT Page 5 "The owners reserves the right to reject any and all bids, to waive any and all informalities, and the right to disregard all nonconforming, nonresponsive or conditional bids. Discrepancies between words and figures will be resolved in favor of words . " Comment In evaluating the bids, the owner shall consider the qualifications of the bidders, whether or not the bids comply with the prescribed requirements, and bid prices. If the contract is to be awarded, it will be awarded to the lowest bidder whose evaluation by the owner indicates to the owner that the award will be in the best interests of the project. l5. METHOD of AWARD Page 6 "All bids will be examined for conformance with the following: A. Conformance with the terms of the contract documents. B. Conformance with the required qualifications as requested on contractors qualifications submittal form. C. Bid price. D. Suitability to project requirements. BIDDER'S CHECKLIST Page $ "The bidder's Checklist is offered to the prospective bidder as a means of checking their Bid Proposal in order to insure that a complete Bid is submitted, free from omissions and errors that could possibly lead to rejection of the Bid. The contractor is not required to complete this form." 1. Are all blank spaces filled out on Bid form? Is a complete set of Bid proposal documents included? Contractor's Qualification Submittal Farm Information Required of Bidders 2. Have questions arising from the bidding documents contract, specifications, or plans been submitted in writing to the proper authority and resolved in the proper manner? 3. Are bid amounts shown correctly as well as extensions and totals? Recheck far errors ar omissions. Both lump sum and unit prices must be shown. BID SCHEDULE Page 11 "The following are the bid schedules for the Bid Schedule for the City Meridian Ashford Greens Lift Station Project. Bidders must complete both bid schedules. The award will be based on the lowest Total Bid subject to the requirements of Paragraph 15 of the Information far Bidders. The unit rice and~the total far each bid items shall be written in figures in the spaces provided." Comment: This should say "Numerical and written Put numbers in spaces provided below. ENUMERATED FIGURES WRITTEN FIGURES C~NTRACT~R QUALIFICATION SUBMITTAL FDRM Page l5 "In order the City of Meridian to properly evaluate bid proposals the following information shall be submitted by each bidder and included in the bid proposal. The following referenced projects shall be of a similar nature and magnitude as the Project contemplated in these contract documents and have been completed within the last five years. Failure to complete and submit the following inf armation with the bid mayr, deem the bid non-~respansive and may result in rejection of the bid." Comment: The use of the word shall in the first sentence and the use of the ward may in the last sentence are diametrically opposed. In any future bid, if we desire to have something done, the word "shall" shall be used and there shall be no use of the word "may" . CONTRACT Page ZO 7. Contract Documents. The contract documents which comprise the entire agreement between the owner and contractor are made a part hereof and consist of the fallowing: A. B. C. D. E. F. G. H. I. J. This Agreement Performance Bond Payment Bond Notice of Award and Acceptance of Notice of Award Notice to Proceed Contractor's Bid Technical Specifications Drawings, if included Addenda numbers to inclusive Any modifications, including change orders, delivered after execution of Agreement. duly Comment The only document submitted as an addenda or an additional statement for the contract included under number seven is the Technical Specifications. The general conditions, submittal general conditions, state of Idaho requirements, technical provisions which I am not sure whether they are technical provisions or whether or not they are technical specifications, but it should be properly enumerated in paragraph seven, that is, I am saying that in paragraph seven the language should be the same as is included in the document itself. Comment The general conditions, the portion of which would be very helpful is stated below. GENERAL CONDITIONS Page GC--1 Priority of Provision of Contract Documents Page GC--6 6. In the event that any provision of any one contract document conflicts with the provision with another contract document, the provision in that contract document first listed below shall govern, accept as otherwise specifically stated: A. Agreement B. Agenda to Documents C. Remaining Legal and Procedural Documents 1. Bid Form 2. Invitation to Bid 3. Information for Bidders D. Detail Specification Requirements E. Drawings F. General Conditions of the Contract G. Bonds 1. Performance Bond 2. Labor and Material Payment Bond 3. Proposal Guarantee Comment Here the general conditions of the contract are noted, and their priority of governance is stated. However, the general conditions are not included in the contract. The above provisions in the paragraph, Priority of Provisions of Contract Documents, would be mast beneficial if the general conditions were included as part of the contract. Even in the Table of Contents it states the various Table of Contents and lists as separate items Bidding Documents, Contract Documents, General Conditions, owner's Supplemental General Conditions, State of Idaho Requirements, Technical Conditions, Technical Specifications and Drawings. Since the separate headings are not all included within the contract documents it is difficult to argue that they are part of the contract. Also since they are not included in the contract under Paragraph 7, Contract Documents, it makes it most difficult to argue that they are part of the contract. Side Comment: In the Information for Bidders states, in Paragraph 4, Examination of Contract Documents and Site, "Before submitting a bid, each bidder must: 1. Examine the Contract Documents thoroughly." .Another question would be in Paragraph 7 of the Contract, which lists the documents which comprise the entire agreement it states, "A. This Agreement." The question is does this agreement, does that include the entire pamphlet of pages or does it just include pages ~4 - 23. It would be my opinion that because the various documents are headed with a name that the agreement is just those four ~4~ pages, and does not include everything that's in the pamphlet. Also, even under the General Conclusions it states the defeinition of .Agreement as follows. "The written agreement between the QWNER and CONTRACTOR covering the Work to be performed. Other Contract Documents may be attached to the Agreement and made a part thereof as provided therein." l ' ~" . Even if the GENERAL, CONDITIONS we re a part of the contract it states hat they must be attached to the a regime and made a art thereo g nt p f. The GENERAL CONDITIONS are . attached a~ t-~~rnf ~- ~ .~ apart of the A regiment r ~u~' ~~~ w~~d~ ~D~ ~~r~' 8~ ~`~C f~a ta~E~"F~ I~ OPINION Brad Watson suggested t~o Gary Smith that the lan ua ' Paragraph 6 of the General Conclusions. 'o g ge in rovision of an - n Page GC~6, that if any p y one contract document ~ conflicts with the rovision of another contract document the contrac p , t documents have a schedule of.priority, solved the problem that we have with this This would be the case if constract. I could say to you that the General Conclusions were part of the Contract Document w dacurnents themselves da no ~ a ~ d ~,ok~ver - the t say that the General are a contract document. In Paragraph 7 under the headin CONTRA the bound volume, it fives ~ g CT, of 9 a listing of the of the Cantract Documents and the General Conditions arE not stated as ' Contract Document Thus being a th' ~ - we are left to decide how to deal with is situation.