Loading...
2001-128-Minutes for Meeting March 22,2001 Recorded 3/30/2001VOL: CJ2001 PAGE: 128 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02001-128 * Vol -Page Printed: 04/05/2001 14:30:11 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Mar. 30, 2001; 8:09 a.m. Regular Meeting (CJ) NUMBER OF PAGES: 5 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK Kf� F>t�N H� A - ��HED200 t 01 ar", 30 Am 8*. 09mm L � TEs ��, COUNTY CLERK 2� "hA,t .� Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF MEETING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS CONVENED AS THE CONTRACT REVIEW BOARD THURSDAY, MARCH 22, 2001 This meeting was a continuation of a meeting begun Wednesday, March 21. The purpose of the meeting was for the Board of Commissioners, acting as the Contract Review Board, to make a decision regarding a bid protest on the Knott Landfill Cell 2 project. Present were Commissioners Tom De Wolf, Dennis Luke and Mike Daly. Also present were Rick Isham, County Counsel; Mike Maier, County Administrator; and George Holroyd George Holroyd, representing David Evans & Associates. Chair Tom De Wolf opened the meeting at 9:35 a.m. Rick Isham stated that this meeting is a continuation of the Board of County Commissioners' meeting of Wednesday, March 21, 2001, regarding the protest of JAL Construction, Inc. of L & H Grading, Inc.'s notice of intent to award a contract for the Knott Landfill Cell 2 project. He explained that the Board issued an oral decision on March 21regarding this issue. Mr. Isham said that the question was whether the Board should issue a new notice of intent to award or whether the protest period is over as a result of only one protest being filed within the fourteen days from the notice of intent to award. He stated that under OAR 137.030 (01) (04), an offeror is adversely affected or aggrieved only if the offeror is eligible for award of the contract as the responsible bidder submitting the lowest responsive bid, and is next in line for award. Thus, the protesting offer must claim that all lower bidders are ineligible for award. Minutes of Meeting Thursday, March 22, 2001 Deschutes County Board of Commissioners Convened as the Contract Review Board Page 1 of 5 Pages Quality Services Performed with Pride Mr. Isham said when he first read that section, its meaning was not clear to him. He said he has determined that what they are saying is that when you announce your notice of intent to award, anybody can issue a protest. There is low one, low two and low three; low two can issue a protest - which is what happened here, with low two protesting low one. If low three wants to protest, he has to protest against low two and low one. A copy of this law was sent to all of the bidders with the notice of intent to award, and it did not offer any interpretation for this. Commissioner Luke asked, if he were low three, and believed that low one had a responsive bid and would probably not be successfully challenged, and low two drops their protest at the last minute, can low one file a protest against low two? Mr. Isham stated no, that,he can defend a protest against them. You must be a higher bidder to file a protest. If you receive a notice of intent to award and nothing happens, then you get the award after the fourteen -day period. If someone files a protest, then you are required to hold a hearing to determine whether the protest is valid. If you deny the protest, then automatically the number one gets the award. Commissioner Luke asked, what if low two is non-responsive. Mr. Isham said that he believes that if you have a low two that is non-responsive, that you have to reject this bid. For example, if low two didn't submit a subcontractor disclosure list at all, they are considered non-responsive and their bid is eliminated. Commissioner Luke then asked what if low two had left the contractor board number off. Mr. Isham replied that this is a required statement; and that's a good question. The County has the right to waive irregularities, and in the absence of a protest it could probably be waived. If there's a protest, you may not be able to. Mr. Isham further explained that he believes the County is going to change that form, however. To answer the question, he said you need to either put in the number, or state, "not required". If you don't put a number in and you don't check the box, it's a problem. Commissioner Luke asked if it is possible to access the CCB computer on the web. Commissioner Daly replied yes, it is fairly easy to do so. Commissioner DeWolf stated that it sounds like where Commissioner Luke is headed with this is that if the County makes an award at this point, no one can protest. Mr. Isham replied that there is no protest time left. Minutes of Meeting Deschutes County Board of Commissioners Convened as the Contract Review Board Thursday, March 22, 2001 Page 2 of 5 Pages Commissioner DeWolf stated he has a problem with that. He said that if low two has listed an electrical contractor who says he won't work with them, they then become non-responsive, which is the same situation right now. That's because low three thinks that low one is going to get the bid, so they didn't protest against low two, because low two didn't originally get the bid. Mr. Isham said everyone has fourteen days to get your facts together, and if you can't do so and don't file a protest, it's over. Commissioner DeWolf then said that there would be no need to protest because low two doesn't have the bid; low one does, and they are fine as far as low three knows. Mr. Isham clarified that you could be low ten, and you would have to protest all of the other lower bidders if you decided to protest. However, in reality no one would do that. Commissioner DeWolf said that he feels this is a stupid law. Mr. Isham said that ODOT will toss a bid if there is one blank left unfilled on their form. Commissioner DeWolf stated that he doesn't want the County to be like ODOT. Commissioner Daly said that there needs to be consistency in upholding the rules. Commissioner DeWolf stated that he thinks low three through eight should be able to protest as well. Rick Isham replied that the protest was faxed to all of them, and they all had the opportunity to protest. If a bidder protests one after the other, with others being able to protest as well along the way, the project would never get built. Commissioner DeWolf emphasized that he feels this is taking away people's rights. Rick Isham stated that in the human services building project, the three lowest bidders were qualified before the award; however, it was not done in this case. An engineering firm was hired to do that for the County, and somehow let all of the bidders get on the list. This was an indication to the Board that all of them were responsive. Minutes of Meeting Deschutes County Board of Commissioners Convened as the Contract Review Board Thursday, March 22, 2001 Page 3 of 5 Pages Commissioner DeWolf said that the Board shouldn't have to be placed in this position. Rick Isham said that he has not reviewed the solid waste contract yet, but doesn't agree with the way this has been performed. Commissioner DeWolf stated that this has to be one of the worst ways to proceed, and he would like to see all of the County's engineers to act in a consistent manner so that the County is protected and won't end up involved in a situation like this. Rick Isham said that during the pre -conference meeting the County needs to instruct the contract engineers exactly what to do and what is expected; sometimes the engineers are doing things in different ways. Everyone needs to be more specific at the beginning. He said he feels that the contractors should be qualified before issuing a notice of award, because that gives the County the ability to better control things. He said he doesn't agree with the theory that they are proceeding with on this particular contract. Commissioner Luke asked, then, if there are any more appeal periods. Mr. Isham replied that there are none; that this part of the issue is over. Commissioner Luke asked if it was felt that number two is responsive; Mr. Isham replied yes, and they even listed some subcontractors that didn't have to be included, such as the electrician and the fencing subcontractor. Rick Isham stated that the decision says, "Shall promptly issue a written decision on the protest. The successful offeror shall promptly execute the contract after the award is filed." He said it is considered final when the Board issues its decision. Commissioner DeWolf stated that this protest situation bothers him a lot, and asked if it is state law or the County's law. He further said that the Board shouldn't have to be put into this situation. Mr. Isham said that state law and the Attorney General have universally utilized the model rules. Deschutes County uses those state rules, as opposed to developing its own. This gives the County access to State law to support its decisions. If the County uses its own ordinances, there then is no case law or administrative law to fall back on to support its decisions. Minutes of Meeting Thursday, March 22, 2001 Deschutes County Board of Commissioners Convened as the Contract Review Board Page 4 of 5 Pages Commissioner DeWolf read a portion of the OARS [(4) (a) Right to Protest Award.] "An adversely affected or aggrieved offeror may submit to the agency a written protest of the agency's intent to award within fourteen days after issuance of the notice of intent to award the contract, unless a different protest period is provided under the solicitation document." He said that the County's intent to award names one intention; that is, to award to low one. It makes no mention of two, three, four, five, six or seven. Mr. Isham said that the definition of adversely affected and aggrieved is one of higher rank that can knock out all the lower bids; you get one bite of the apple. LUKE: I move that the Board supplement the decision and provide within the written decision an award of the contract to JAL, Inc. DALY: Second. VOTE: LUKE: Aye. DALY: Aye. DEWOLF: Chair votes aye. Being no further action taken on this issue, Chair Tom DeWolf adjourned the meeting at 10: 05 a. m. DATED this 22nd Day of March 2001 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Minutes of Meeting Deschutes County Board of Commissioners Convened as the Contract Review Board Tom DeWolf, Chair Dennis R. Luke, Commissioner is ael M. Daly, ommissioner Thursday, March 22, 2001 Page 5 of 5 Pages