2003-941-Minutes for Meeting June 04,2003 Recorded 6/13/2003DESCH
TES COUNTY OFFICIAL
UBLANKENSHIP, COUNTY CLERK
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NANCY2003.94
COMMISSIONERS' JOURNAL 06/13/2003 02;22;32 PM
IIIIIIIII IIIIIIIIIIIIIII I I IIII I I
2003-000841
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DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
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if document is re-recorded.
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Deschutes County Board of Commissioners
1130 NW Harriman St., Bend, OR 97701-1947
(541) 388-6570 - Fax (541) 388-4752 - www.deschutes.org
MINUTES OF MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, JUNE 49 2003
Commissioners' Hearing Room - Administration Building
1130 NW Harriman St., Bend
Present were Commissioners Dennis R. Luke and Michael M. Daly; Commissioner
Tom De Wolf was out of the office. Also present were Mike Maier, County
Administrator; Rick Isham and Laurie Craghead, Legal Counsel; Dennis Perkins,
Kevin Harrison and Jon Skidmore, Community Development Department; Susan
Ross and Anna Johnson, Commissioners' Office; Dave Peterson and Joe Sadony,
Information Technologies; Tad Walker, Building Services; media representatives
Barney Lerten of bend. com and Chris Barker of the Bulletin; and approximately
twenty other citizens.
Chair Dennis Luke opened the meeting at 10: 00 a.m.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was a Public Hearing regarding the Inclusion of Property
in the Hearings Officer's Decision (Land Use Files TA -02-13 and ZC-02-5,
Zone Change; Applicant: Demaris; Property: Ahern Acres Subdivision, La Pine).
Jon Skidmore read the preliminary statement (a copy of which is attached as
Exhibit A), and referred to the applicable criteria that was shown via an
overhead projector.
LUKE:
When did the Board vote to have this be a de novo hearing?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 1 of 30 Pages
LAURIE CRAGHEAD:
This was not something that was brought before the Board. It is a necessary
hearing to have, and the Board automatically has to consider the Hearings
Officer's decision as well as any de novo testimony to allow sufficient
comment time for the public to testify on the addition of this one lot.
Regarding ex parte contacts:
LUKE:
I've only spoken with staff. I know one of the possible witnesses and the
attorney, but don't know the applicant.
DALY:
I received a letter that's in the record.
Regarding challenges to the Board: None were offered.
LUKE:
Are there photographs available? What's on the site now?
SKIDMORE:
There are two wells with well houses that serve other properties. One serves a
building on lot #76, and a barber shop and another building on the other lot,
#74. There are no other improvements on the lot.
(At this time the Board viewed the photos. Mr. Skidmore also pointed out the
property and others on an oversized map.)
LUKE:
What would be allowed if it were zoned commercial?
SKIDMORE:
There would be limited commercial uses, such as retail; and this would require
a review process.
DALY:
One applicant owns all the properties?
SKIDMORE:
Yes.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 2 of 30 Pages
Mr. Skidmore then read his staff report, which is attached as Exhibit B.
LUKE:
The zoning on the other lots has already been changed; do you still require a
land use action to put buildings there?
SKIDMORE:
Correct. The notice requirements are 250 feet.
LUKE:
Did you get letters on this specific lot or the whole thing?
SKIDMORE:
Specific to this lot.
LUKE:
What about on the original application?
SKIDMORE:
We got a few in support, and some vaguely worded documents that didn't seem
to support it; one person is here to speak today in opposition. Copies of the
letters have been provided to the Board.
I I t, '1.. 11
Are the wells on the lot because of a separation between drainfields? Are there
drainfields on the others?
SKIDMORE:
I'm not sure why they placed the wells there, but there are septic tanks on both
lots 7400 and 7600.
LIZ FANCHER:
I'm here this morning representing the applicant, Karen Demaris.
A little background: Ms. Demaris inherited the property from her mother, Betty
Ahern, who developed the Ahern Acres Subdivision, which is near the Senior
Center. The property is also across the street from a property that is now a
public park.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 3 of 30 Pages
There are a number of facilities developed along Burgess Road. This was
established in about 1963, when Mrs. Ahern started Ahern Realty. She sold
properties on contract also, and had a gift/rock shop on the property that she ran
with her daughter. In the early 1970's, prior to land use zoning, she obtained
permits for the lots along Burgess Road. (At this time she pointed out the
properties on the oversized map)
The realty office was built in the 1960's. (She then referred to photographs.)
All properties are used for commercial uses currently, and the zone change was
to recognize their historic use and allow these uses to continue. The wells serve
properties to the north, and it was discussed whether to include the lot with the
original application. We went ahead with that, and the Hearings Officer said
that since they serve the other uses, we should include them.
The corner lot is vacant, and we did not ask for a change since there's no
historic use of it for commercial activity. We tried to keep the size of the area
limited. The well was used for the construction company, and there was a
driveway permit onto Lost Ponderosa issued by the County in the 1970's. The
wells were placed there just because it was logical; there was no problem with
the septic systems, per Mrs. Ahern.
Ms. Demaris and I spoke with James Lewis at Community Development, and
he couldn't find all of the official zoning maps of the 1970's. But he had a
work map that showed that it was dedicated as a rural service center in 1979,
even though it apparently didn't get put on the permanent map. He said it made
sense. At that time, Mr. Lewis said that no complaints had been received.
Another former County staff member became concerned regarding the fitness
salon now in the real estate building. We talked with County staff again in a
code enforcement setting; then met with Kevin Harrison, who recommended we
apply to change the zoning instead of using the grandfather use process. We
were then looking at the rural service center option; about that time he
circulated the information to County staff. They recommended the less intense
rural commercial zoning. This was adopted while the County was reviewing
the application. This particular zoning fits the type of property that's there, a
very small commercial development with small buildings.
LUKE:
Are these types of businesses that fit into the home occupation type businesses?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 4 of 30 Pages
FANCHER:
There is a tax preparing business, a beauty shop, and a fitness salon in one
building. It has been used as office buildings and retail uses. The fitness salon
is one use that is a bit different. At one time one building was used as a coffee
shop, and another a landscaping business.
DALY:
Regarding the lot in question, a construction company used it?
FANCHER:
Think they parked equipment on it. The addition of lot 6 makes it more
possible to respond to concerns raised by Mr. Roan; it gives additional room if
the buildings have to be replaced because of a fire. There would be a 100 -foot
setback then, which would allow redevelopment without difficulty.
LUKE:
If it has two wells on it, it's unlikely a septic could be put on it.
SKIDMORE:
It's 42,000 square feet; not even an acre.
FANCHER:
All of the lots are operated together. The whole area before was about four
acres.
PIXVDITNN���
I am the owner of the property. My mother was the developer of the property,
and in the early 1960's had covenants allowing commercial or light industrial.
The owners around the area are aware. The intent was to make it a small
commercial area. She was a very industrious woman and owned a variety of
businesses. She stored lumber on the lot, and had a nursery there as well. The
reason the wells are on that property now is that she actually witched wells
and decided the location would have good water. It is easier to maintain as
well.
LUKE:
Do people share wells in this area?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 5 of 30 Pages
DEMARIS:
Most have their own wells. One well provides water to the businesses, and the
other provides water to the duplex.
DALY:
Did commercial activity occur on the lot in the past, related to the construction
business?
DEMARIS:
The lot has a well house and a small construction storage building. In the early
1970's she got a commercial entry off a side road from the County.
KATHY O'NEILL:
I live on Lost Ponderosa, and own two lots there. One is three lots down on the
left and the other is five lots down on the right. (At this point she submitted
three letters from others into Mr. Skidmore, for the record. A copy of the set of
letters is attached as Exhibit C.)
My picture is totally different from their pictures. I've been there for 23 years,
and I don't recall anything going on at that lot. We have a great road, which is
County maintained, paved, and is not a through street. There was nothing but
residential until the fitness salon came in.
As far as what they could put in there, the gentleman I talked with talked about
a long list of things, such as a garage, gas tanks and a grocery store.
LUKE:
There's a difference. Zoning is general. In some areas they might be able to
put those in. However, in this specific area, due to the water level, setbacks,
and so on, that starts to restrict it. They still would have to submit a site plan
that would go through a public process. While the general zone allows a
number of uses, the specifics may not fit.
O'NEILL:
He said there could be a mini -mart or gas station, whatever. When they spoke,
they said a garden center and others. Another thing is traffic concerns,
especially since the fitness center went in. A lot more people seem to be
driving around, maybe cooling themselves off or something, or just looking at
the area.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 6 of 30 Pages
Another concern; if she puts the lots together, who knows what can happen.
It's on our road; you have to go into our subdivision to go into the property.
Property values will go down if that happens. Who would want to live where
there's traffic, if there's commercial property next door? I talked with two
Realtors who said it would go down. I want you to look at what can be put
there and what it is now. I'm sure that traffic will come up. All of the homes
are nice homes. My letter says I have no problem with the other property on the
main road, but not in the subdivision. I have nothing against Karen, and would
feel the same if it were anybody else.
LUKE:
For the record, I know Wayne (Rowland).
WAYNE ROWLAND:
I live in La Pine. I was opposed to the whole project, and was from the
beginning. I live about 1-1 /2 miles away, but pass there every day. This was a
bad decision of Hearings Officer.
LUKE:
It was put in before land use was in place.
ROWLAND:
Based on the fact that an error was made. It is nonconforming. In a landscape
management zone, two lots are mostly covered by the flood plain. (He then
pointed the lots out on the oversized map). One has the duplex on it.
SKIDMORE:
For the record, the flood plain coverage is outside of these lots officially.
ROWLAND:
The setbacks that exist on the arterial highway make it impossible to back out
onto the road. People have to back out onto the right of way to exit. The other
property is vacant, and has always been. The notification was not posted on
that property. The previous notice was posted in the window of an empty
building next to the barbershop. People would not be able to see the posting on
the lot. This is a leap -frog deal. No zone change is needed to use the property
for that purpose.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 7 of 30 Pages
LUKE:
How could you put a drainfield on a lot with two wells on it?
SKIDMORE:
There's the limitations of the lot itself.
ROWLAND:
The fact is that an error was made, and the applicant offered no proof it was
made. The CCR's put in by Betty Ahern restricted that use to commercial type
activities on that lot, and they don't override the zoning.
DALY:
There was no zoning at that time.
ROWLAND:
The designation of commercial doesn't mean a whole lot today. If it is allowed
to be used for commercial activity, they could include a restaurant, a cafe, a
tavern, a beauty shop, a video store, and so on, which would take a lot of
drainfield area and generate a lot of traffic on a quiet neighborhood street.
LUKE:
You realize that even if it were approved, it still takes a site plan review and
application.
ROWLAND:
I know the procedure. It does open the door to submit a site plan. In the La
Pine area we have a huge problem with septic tanks and drainfields. These lots
are too small.
LUKE:
This in itself restricts the uses.
ROWLAND:
Doesn't have to be zoned commercial to be a drainfield and well lot.
DALY:
You get your hair cut there. Where would you go if it weren't there?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 8 of 30 Pages
ROWLAND:
Another barber in town.
DALY
My comment is, it is convenient for you. Some of the purpose of rural
commercial is to cut down on traffic because people don't have to drive too far
to get items. This cuts down on overall traffic. It's my understanding rural
commercial areas do that.
ROWLAND:
Maybe so, but I go by there all the time. I don't have to wait there. At one time
the building was used as a daycare or pre-school, which is not allowed in
wildlife combining zone.
The situation is that there was an error made in the original zone; it should have
been RR -10. It should not be expanded. This opens the door for a whole lot of
uses, like mobile homes and all kinds of conflicts. It is in a wildlife combining
zone and a flood plain, and to add another lot it doesn't need to be rezoned.
They said they have no intention of expanding the existing uses. To see the lot,
you have to drive down Lost Ponderosa.
LUKE:
The notice went out further than original notice.
SKIDMORE:
Yes, it did notify more people.
No other opposing testimony was offered.
FANCHER:
Ms. Demaris commented to Ms. O'NEILL that more houses have been
developed in Ahern Acres, so naturally there is more traffic. The intention of a
rural commercial zone is to allow small uses. In this setting, the constraints of
the property, and the environmental and overlay zones, do additionally help
limit the uses of the property. Per County ordinance, it can't be served by a
sewer system, which keeps any uses low impact.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 9 of 30 Pages
One change that we relied upon was a change by the State regarding rural
uses. For many years they didn't define this. They finally took a position,
and the applicant coordinated that with County staff. The adoption of the new
law and the clarification of uses is a change of circumstances requiring a
zoning change. It's not another rural service center like La Pine. Because the
uses are so limited by property constraints, this is not a good option. When
the County adopted this zone, it fit circumstances for this property. There's
good assurance that this property will continue to be small commercial to
serve local residences.
No part of the property is in the flood plain. The intention of the addition of lot
6 responds to the Hearings Officer's concern that it serves commercial uses. It
lets the wells continue to serve the businesses. There's no intent to use the lot
for a septic system or any other use. It would be used in conjunction with the
other lots. It is needed for a water source, and it's not a large lot so it is unlikely
that it would be redeveloped. It's possible, but it would have to meet other
requirements.
CRAGHEAD:
There is no need to leave the record open, as there has been no request to leave
it open.
DALY:
I'm fine with what we have.
CRAGHEAD:
You can decide today or later.
LUKE:
I am closing the public hearing and the record at this time. We will make our
decision at the regular Board meeting, which begins at 10:00 a.m. on
Wednesday, June 11.
This hearing concluded at 11: OS a.m.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 10 of 30 Pages
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS, CONVENED
AS THE LOCAL CONTRACT REVIEW BOARD
3. Before the Board was a Public Hearing on the Protest of a Contract Award
on the County Warehouse/Information Technologies Building.
LUKE:
We're going to open a public hearing on a protest of a contract award on the
County warehouse/I.T. building. We'll meet as the local contract review board
to hold a hearing to consider the protest of the County's intent to award a
CM/GC contract for the County warehouse/I.T. to Kirby Nagelhout
Construction. (A copy of the protest letter is attached as Exhibit D.)
SUSAN ROSS:
I'm Susan Ross, project manager for Deschutes County. I just wanted to
describe the process that was followed in this selection. Four proposals were
received, as you know; from Vik Construction, R & H Construction, Robinson
Construction, and Kirby Nagelhout Construction. The proposals were
distributed to the selection committee, which is made up of nine committee
members, a couple of days prior to the meeting. The selection committee met
and discussed what we were looking for in each element, which I'll go over a
little later. We then ranked the proposals. Each individual ranked the proposals
using an individual rating sheet, which we have here. (A copy the scoring
sheets is attached as Exhibit E.)
When the total scores were tallied, the high score by far was Kirby Nagelhout
Construction Company. We did not feel, with the rating and the ranking that
had happened, that personal interviews were necessary; that was just an option
we left open if we felt it necessary. The committee members unanimously
agreed that they did not feel personal interviews were necessary.
At that time the committee chose to make a recommendation to the Board of
Commissioners to award the notice of intent to Kirby Nagelhout. The Board
approved the intent to award on May 28, last Wednesday; and that award
included a five-day appeal period. On the fifth day, June 2, Vik Construction
Company submitted a protest of the award. In their letter of protest, a copy of
which I gave to the Board, there are a couple of things I want to address.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 11 of 30 Pages
One is that on item #3, where it says "value engineering", on the first page, I
just want to clarify what happened in that regard. They said that three people
gave them zero points. These three people just felt they were not qualified or
knew enough about value engineering to be able to score those points. So, they
just gave zero points across the board. We told them as long as they did across
the board zero points, that there was no harm done. So it's not like they gave
some points to some and zero to others. They just left them all blank. I wanted
to clarify that this should not have had any effect on the scoring.
The second handout behind the letter that I gave you is a list of the required
documentation that was contained in the full bid packet. That documentation
shows what we were looking for in each of the elements, and what
documentation was required to be submitted with the proposals. So, for
instance, on the experience element, it asks for a description of the proposer's
construction and CM/GC experience, along with a brief history of the proposer,
including year established, number of employees, associations and awards,
which CM/GC contracts were with different governmental units, and also
different references.
Under qualifications, we were looking for whether they are in good standing
with the State, licensing and Construction Contractors' Board; qualifications
should include familiarity with the site, the type of construction proposed, and
qualifications in Central Oregon construction challenges. So, we were looking
to see what they knew about this area.
On item #3, the evidence that the proposer can meet a completion schedule of
March I, 2004; list all current and planned projects and show how this project
fits into the schedule.
Item #4 asked for the names and resumes of principal officers, partners and
staff; in particular, the principal staff that is assigned to this particular project.
And, #5 was examples of value engineering used in prior projects, and a list of
cost and time savings as a result of those value engineering suggestions.
Item #6 was the proposed mark-up costs and a list of all of the reimbursables --
the cost of reimbursables. (A copy of this sheet is attached as Exhibit F.)
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 12 of 30 Pages
The next item that I gave you was the actual scoring sheet. The first page is a
compilation of total score by rater, and you'll see the names of the nine raters
there. Then it shows how each construction company was rated in total, for all
elements. We did find that we had made an error in addition, although it didn't
change the overall ranking. As you can see, the total for Kirby Nagelhout is
821 points; R & H Construction was 768 points; Robinson Construction was
707; and Vik was 760.
DALY:
Are these the correct figures?
ROSS:
Yes; these are the correct figures. The last thing that I also included was a sheet
called the warehouse project cost proposal. This is simply to just show you,
based on an estimated $2 million project -- because that is what we've been
saying that we think this project is going to cost -- what that markup cost would
have been. We totaled it with the reimbursables, and you can see what the total
estimated costs would have been.
Kirby Nagelhout and Vik Construction were pretty much neck and neck. There
was $3,000 difference between them. But, as you can see, if we were to go by
a traditional low bid process, even then Kirby Nagelhout was low bidder on this
project. Even so, we assigned the total of twenty points to both companies,
because it was so close. And then the other companies got a proportionate
number of points based on the difference between the best bid and their bid. So
all the raters gave the numbers based on the cost. That's the only element you'll
see in there where everyone ranked exactly the same, because those numbers
were given to the raters to use.
LUKE:
Rick, would you kind of summarize the burden of proof?
ISHAM: (Mr. Isham's statements were somewhat hard to transcribe off the
audiotape due to a problem with his microphone.)
The letter dated May 28, 2003 had attached to it the notice of intent to award a
contract letter, which included the wording of a portion of OAR 137-030-0104,
which basically deals with protests of the notice of intent to award a contract.
The relevant portions of that are found in OAR 137-030-01-04(4), the right to
protest an award. (A copy of this portion of the OAR is attached as Exhibit G.)
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 13 of 30 Pages
What that provides is, "an adversely affected or aggrieved offeror may submit
to the agency a written protest of the Agency's intent to award within 14 days
after issuance of the notice of intent to award the contract". In this case,
because we had specified a five-day protest period, they submitted their letter of
protest on the fifth day, which met the requirements.
The offeror's protest is to be in writing, and must specify the grounds on which
the protest is based. An offeror is adversely affected or aggrieved only if the
offeror is eligible for award of the contract as the responsible proposer
submitting the best response to the proposal, and is next in line for the award;
i.e. the protesting offer must claim that all higher scorers are ineligible for the
award.
That's the burden that Vik Construction has. They have to show that they
should receive the award because the higher scored offerors were non-
responsive or that the agency committed a substantial violation of a condition in
the solicitation document, or in an applicable procurement statute or
administrative rule. And the protesting offeror was unfairly evaluated, and
would have brought forth such substantial violations than the responsible
proposer offering the highest ranked proposal.
LUKE:
In this case, I guess I need to ask you a question. They were actually in the
total points, and evidently you gave points for the bids, also, for the prices? Is
that part of the point total?
ROSS:
Yes.
LUKE:
So, even with the points for the money, the bids, they were still third. So not
only would they have to be more qualified than the top one, but they would also
have to be more qualified than the second one.
ISHAM:
Correct.
LUKE:
Anything else? Any questions?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 14 of 30 Pages
DALY:
I was going to follow up with the same question you had.
LUKE:
I just wanted to get a confirmation.
ISHAM:
You asked me a question right before the hearing started with respect to
whether interviews were held. This is from the solicitation. It says in the
section titled selection, proposals will be evaluated by the selection committee
which will make a recommendation to the Board of County Commissioners or
the governing body of the County. Selected individual firms may be asked to
attend an oral interview with the selection committee. The selection is based on
the evaluation of the proposals. And Susan indicated, based on the written
proposals, they thought there was sufficient information and did not conduct
interviews with the proposers.
LUKE:
I believe staff said there was a unanimous decision by the interview committee
not to conduct interviews. Is that what you said on the record?
ROSS:
Yes.
LUKE:
We have the sign-up sheet. We had two people sign up who crossed their
names off, and we have Greg Vik signed up. As you are coming up, I think it is
important that you have some idea of who you are talking to.
Commissioner Daly has been an excavation contractor for a number of years,
and sat on the Construction Contractors' Board and was chairman of that Board
at one time. I've been a contractor in Central Oregon since 1973, and was State
President of the Homebuilders' Association in 1991, and passed the independent
contractor law in 1995. I was very instrumental in getting the surveys done for
prevailing wage, instead of just taking the union scale out of Portland, which
also included a fund that the public pays into to do enforcement'and education
on prevailing wage. So, we have some background in the construction field,
and we have some idea of what you are talking about.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 15 of 30 Pages
GREG VIK:
I'm Greg Vik out of Eugene. I'm president and owner of Vik Construction
Company. Thank you for the opportunity to present our protest regarding the
CM/GC contractor award for your new warehouse/I.T. project.
Our catalyst or starting point with the thought of an appeal was that we knew
that there wasn't a practical basis for Nagelhout Construction, or any of our
other competitors, to have outscored us by 70 points, or about 10%. So that's
where we started in terms of our thinking. And then we asked for the
information used to score the process, and we found irregularities and inequities
that allowed us to take this process a little bit further.
There has been a suggestion that this is a case of being "homered", or that local
bias got out of hand. But, for us, we have a different view. We say that
Nagelhout Construction should be credited with its work in Deschutes County
and elsewhere, and so should his competitors. All of the competing firms in
this case are very accomplished. We have sought to emphasize, however,
objective information to provide a clearly fair conclusion and to provide you
with useful feedback that causes improvement in your process.
By the way, we have been providing building services in Deschutes County for
thirty-five years; far longer than any of our competitors. Our client satisfaction
record is excellent. We do not do many projects, but each that we do is done
well. And, in the public interest, our fee, which was 3/4% lower than the
Nagelhout Construction offer, or about $15,000, combined with the fact that our
general conditions numbers were $989 per month cheaper or less expensive
than the Nagelhout offer.
DALY:
Wait a minute. General conditions -- what are we talking about?
VIK:
We were supposed to provide as a part of our proposal a detail of expected or
estimated general condition costs -- part of the response that included a separate
fee number. Our fee number was 3% of construction costs, and I think the
Nagelhout offer was 3.75%. So, we're saying in the public interest, black and
white, we had a significantly lower fee.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 16 of 30 Pages
And in addition to that, some would say, well, Greg, your general conditions
number is in truth $989 per month less than Nagelhout. But his overall number
is lower than yours, and that has to do with the fact that we gave a conservative
estimate of schedule of eight months; and he proposed six and one-half months.
But my question for you is, to drive this point really home, if Vik Construction
builds the building in six and one-half or seven months, are we going to charge
eight months for the general conditions? Absolutely not. And our record is
impeccable in terms of speed, accelerated fast-track, and that kind of work. We
are excellent in that respect.
So, briefly, who are we? Who is this Vik Construction? We come from one
hundred years of lineage of Norwegian master builders. We have successfully
completed close to all of our hundreds of major projects over the past twenty-
five years successfully.
And these projects, by the way, include are largest project -- a 300,000 square
foot silicon wafer fabrication plant for Tektronix in Beaverton; the free -span
wood dome Child Center for the University of Portland; the twelve -level post -
tension concrete Hilton Hotel project in Eugene; and these are just a snippet of
what we've done. All of it has been done well on a CM/GC basis; in this case,
in the private sector.
Important is the sixth major project that we recently completed over the last
twelve years for St. Charles Medical Center. This involved complex building
systems, fast-track scheduling, and work adjacent to existing hospital
operations. This was tough, tough, challenging work; and every bit of it has
been done well. And the beauty of our recently completed Center for Health
and Learning project, which you are probably familiar with, at St. Charles, is
another testament to a truly successful design -construct, owner -architect
CM/GC team. It isn't just us by any means. It's a good architect and a great
owner, and that's the result.
As with all of these projects, two-thirds of our work is CM/GC, negotiated
contracting in both the private and public sectors. We are not asking here for
perfection from your CM/GC selection committee; but in this competition we
have identified too many miscalculations and inequities to the point that it is
difficult to know what a reasonable fair result might now be.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 17 of 30 Pages
I don't want to go on and on and on here, but I think it is really important for us
to crystallize our arguments with regard to our protest letter.
For items #I and #2 of the submission, regarding experience and ability to meet
schedule, the Nagelhout Company's reference to local connections is definitely
valid. We aren't taking anything away from that. But so are our concise and
specific answers to these questions. We shouldn't be downgraded because we
were precise and specific. We answered these questions firmly, based upon a
valid interpretation of the questions. The questions are pretty loose in general;
but our response is valid, and we should have scored significantly better there.
On item #5, the value engineering, Susan clarified that and I guess that no
longer is an issue.
LUKE:
That's item #3 on your letter, but section #5 of the scoring.
VIK:
Yeah. Apparently everybody scored zero. But we thought it was a little
unusual because we have done such a good job in value engineering.
Particularly in Health and Learning, we did thirty different studies to continue
to ratchet down the cost because it kept popping up in terms of design aspects
of that project, and we were able to succeed at $5 million when we started at
$5.8 million.
Item #4, section #8, references. I think the paper (referring to the Bulletin of
Bend) made reference to the fact that we said that Linda Baron wasn't
knowledgeable. But that isn't really our point. Our point is that Jerry Gardner
is the one person who has followed us all the way through the twelve years of
construction at St. Charles.
He's the one who has the authority, responsibility, and the experience -- tons of
experience -- to make a good reference check. But she does not. She's the
secretary, and I think she's only been there around two years, and the
interpretation of the Deschutes County representative was negative. And there
is no basis for that. Every stinking one of our St. Charles jobs has been done on
time, under budget with savings, and the quality of work you can see for
yourself. Health and Learning is a great example of excellent workmanship
quality.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 18 of 30 Pages
DALY:
Excuse me. Could I ask a question of staff? On this issue of making a phone
call, was that before these ratings were done, or afterwards?
ROSS:
That was before. I did all of the reference checks, since we didn't want nine
people calling all the different references and checking on them. So I made the
reference checks, documented what they said, and reported it to the committee
to let them make their own determination on how they were going to rank that.
DALY:
So you didn't talk with Jerry; you talked with Linda Baron?
ROSS:
I did talk with Jerry. I got a reference from Jerry. On my way to Jerry I
happened to ask the secretary a few questions also, which I will do sometime
when checking references, and I got some comments back from her.
VIK:
Our point there, is to take an extreme example, to drive the point home, Susan
could have talked to a doctor or a janitor or whatever, just because they had an
association with St. Charles. But they are not qualified, as you would agree. I
don't think in this case Linda was, either.
Item #5, it is unusual to not have interviews for CM/GC competitions. We've
been involved in a number of them, both public and private, and interviews are
always conducted because, as you guys can imagine, when you submit a written
document it always leaves a lot to be desired in terms of fleshing out the intent
and the information.
And, as important as anything else, is getting a read by the selection committee
on the chemistry of who the offeror is, who is going to be the superintendent,
who's going to be the project manager, who's the owner; and can we work with
these people. It is essential. And that didn't occur here.
LUKE:
I have a question. Was there any misunderstanding on your part that there
would not be interviews?
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 19 of 30 Pages
VIK:
Our understanding was that according to the RFP, there was a possibility that
interviews would not be conducted. But we were expecting that they would be,
because that kind of provision has been made before, and there have been just a
couple of cases out of probably thirty or forty CM/GC competitions where
interviews were not conducted.
ISHAM:
Could I interject one thing? In the notice of invitation for proposals, it provided
that the best proposal may be selected without interviews. If interviews are
conducted, the scores of the written proposals may be adjusted based on the
interviews. And the reason for that being written that way is that, let's say that
someone was given six points out of ten, sometimes after the interview and an
explanation, that could be adjusted. But in the absence of interviews, there's no
adjustment of the scoring.
VIK:
Well, if I can remind you guys again, really an important basis for us is saying
that there is confusion. I think we have brought some good, significant points
forward. But, remember, we're the one with the lowest cost offer, and we've got
the great record. That's not to take away anything from Nagelhout; we have a
lot of respect for that firm as well as for Robinson and R & H. But we've got a
great record, here, in Deschutes County, on tough work. Most of our work is
very tough. And we're saying, what is going on here?
I'm not done here. Item #6. If the simple addition of numbers is not done
correctly, and in this case there were six cases of this for each of the
competitors but not Nagelhout, the question of favoritism is noted. And the
question of accuracy of execution of the entire process is a valid concern.
Item #7. In this case, Nagelhout Construction received some point benefit
because three of their 100 -point scorers had significantly larger point ranges
than other, less Nagelhout supportive scorers. The point there is that there were
three that had swings of 18, 20 and 30 points, versus a couple scores that only
had 6 or 8 point ranges. You know, we're getting into the netherworld of this
process, and I don't mean to go so far and be that sophisticated with it, except
that I think Kirby's gotten benefit from the distinction of those point ranges.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 20 of 30 Pages
LUKE:
I've sat through a couple of these, and have been part of the scoring. And my
standard for ranges could be different from others. How we usually handle that,
and how we worked through the process in the ones that I was involved in, we
don't go by the total scores because that can throw everything off. We go by the
rankings, and how many first place votes did they get, and those kinds of things.
VIK:
I haven't looked at how that came out.
ISHAM:
After I talked with Greg Vik on the phone, I did go ahead and do a one, two,
three, four ranking to see if it made a difference. And it does not make a
difference. The scores come out with Kirby Nagelhout Construction at 153; R
& H at 225 -- in this case, the lower the score, the better --
VIK:
And your point is well taken --
ISHAM:
Let me finish. Robinson was at 215, and Vik Construction as at 203. So there
was a change based on the ranges between second and third using that type of
formula.
VIK:
And each one of these points left by itself, it is important to note the context.
We're seeing enough slipping and sliding that in the whole, our request -- I'll get
to that in just a second.
The last item I had, though, Mr. Luke, you made reference to perfect scores.
Four scorers put the Nagelhout Construction with perfect scores; 100 points.
Given the nature of construction, and the CM/GC system in particular, this is
substantially unrealistic. This clearly gives weight of non-critical review, and
even possibly favoritism, because nearly half of Nagelhout Construction's
points were won this way.
LUKE:
Commissioner DeWolf gave Nagelhout 100, but gave you a 98. That's pretty
close.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 21 of 30 Pages
VIK:
Sure, but look at the others. You're right.
LUKE:
It's a personal scale, and it's really hard to go back and evaluate somebody's
personal scale.
VIK:
Oh, yeah. And if I could conclude briefly by saying that our protest is meant to
stop what we believe to be an unfair scoring, and allow reconsideration,
certainly with the clarifying aid of interviews of all proposers. You know, the
reference in the State information is that you have got to be able to show how
you are going to end up being the winner if you protest.
We're saying that there's enough stuff here that the question really comes back
to, is this fair at this point. We don't believe so. And all we are asking for all
the proposers, including the Nagelhout firm, is to go one more step and have
interviews or what have you to clarify this thing. Remember that our offer for
lower cost is still on the table. And our record of pretty close to perfect
performance and client satisfaction is still on the table. Anyway, thank you
very much.
DALY:
You are asking us to do the interview process. Is that right?
VIK:
I don't know what else to do to get clarification. There is some information, for
example, that we'd like the committee to be aware of that is specific to us, that
we -- you know, our view is to have concise, succinct answers, and don't do all
of this marketing stuff. Because you can put pages and pages and pages of how
wonderful we are. We don't do that; we come right to the heart of the question.
But in an interview I think there would be an opportunity to flesh that out a
little bit and clarify it. By the way, this is a simple build. It's a block building
of 26,000 square feet, except that we think that the score range should be real
tight. We've got four really good firms, and they should be extremely tight.
Maybe Kirby would still win. That's fine. And he's got a lot of asset here with
all the work he's done in the County. But not 70 points.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 22 of 30 Pages
ROSS:
I have a couple of comments to make. Mr. Vik made a comment regarding that
he was low cost and made several references to the cost factor. The company
did receive the full twenty points, so I really don't think that is relevant. They
received the full points allotted.
There was, in item #4 of his letter, in regard to references, I want to clarify
something that happened. One of our scorers did use the wrong point scale. He
used 20 points instead of the 10 that was allotted for this particular element.
However, he used that consistently. It wasn't like he used a 10 point scale for
some and 20 point scale for others; it was a mistake. He used 20 points. So we
could have gone through and taken whatever was 20 points and reduced it to
ten, and the 15 points that was given to Vik could have been 7.5. We could
have done that, but we felt that since he used the same scale throughout, there
was no harm created by that.
And, again, I think it is more than just a matter of opening this back up and
conducting interviews. What Mr. Vik is requesting is that the intent of award
be thrown out, and for us to start over. I have a real concern with that, because
everyone has seen each other's proposals now, and I think that might put some
to a disadvantage. It would be a little unfair, once the whole process has been
opened up now and everyone has seen what the others are proposing. Those
would be my comments.
ISHAM:
Just a comment on proposals; once they have been opened, any proposer can
review their competitors' proposals at that point. There would be no advantage
gained. You are correct that the notice of intent award is not an award until
such time, once a protest is filed, there is a final decision of the Board. So the
Board does have the right to remand the process.
VIK:
I have one point regarding Susan's comment on our fee and general conditions.
The thing that is maybe getting misconstrued a little bit is that we are saying, in
terms of the taxpayers' interest, you take the general conditions on a lower cost
per month and our fee, that is significant and we should have scored better. We
had the lowest of both. And what she is confirming is that we didn't get any
more points than anybody else. And that's not right.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 23 of 30 Pages
LUKE:
Several members of the evaluation committee are here. We appreciate you
coming down. Do any of you wish to speak about the process or your
involvement, or on the testimony that was given today?
(No committee members indicated they wanted to test.)
DARRELL WILSON:
I'm from Eugene, and am Vice President of Construction for Vik. The point
that we want to stress here is that we don't want anyone to take this personally.
We just feel in hard business, we are sincere about what we do. And in the
process and our interpretation is that they were unfair. We're not saying that
anybody did that intentionally, and Mr. Nagelhout's company is an excellent
company, and we have no problem with them.
Neither with Linda at the hospital; we're not lambasting her at all. Since Jerry
gave us such a good recommendation, and a secretary of two years underneath
him give another opinion and the scores and scored on that basis, it's obvious
we felt that was an unfair judgment.
I don't know if there is a possibility that the board that did this could go back
and reconsider doing a reevaluation of the scores and do a rescore on the basis
of our protest, and on the basis of the information we've given you today. We
would appreciate that consideration. And we sincerely thank you. We hope
that for us that we learn, and we become smarter and more efficient, and we
hope this process does, too. Because it's all about being fair to everybody.
LUKE:
I want you to know that there was considerable discussion about whether to go
this route, and it was a difficult decision. It was a split decision by the Board to
go this way instead of going after a strict bid process. I know from my years in
construction and when the County built the jail in this process that I was
approached as a legislator and talked about the process.
It's not a decision we make easily to go with this type of process. One of the
reasons there was a split vote is to let staff know that this is not a slam-dunk. In
most cases I think it's better to let people go head-to-head in a bid process; and I
think in most cases the public is better served that way. In this case the timing
of the building was the driving factor to go with the CM/GC process.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 24 of 30 Pages
I just wanted to put that on the record because you weren't here when we had
those discussions. It is not a process we use lightly. It's a process that we take
a lot of time with, and it needs to be done correctly.
WILSON:
We respect that very much. The building, being as simple as it is and being $2
million, in this decision that you made to go with CM/GC, we want to do our
best. And in the process we hope that you realize that we are as thorough in our
observation of this as we do in business every day.
GLEN MILLER:
I'm a senior project manager for Kirby Nagelhout. I just want to comment on
one thing. I think it is good that Vik is bringing scrutiny to the process, but I do
feel it was a fair process overall.
The one thing that I wanted to mention is that we have been involved in many
CM/GC interviews, and we have prevailed in the interviews, but not in some of
the other areas where Vik Construction is located, in the Valley. But we have
prevailed every time when there has been an interview and it has gone to that
particular stage. We have no problem going to that stage, but RFP was very
clear that the decision could be made to not go to interviews if they felt it was a
unanimous thing.
One thing that I think is very important when you are looking at CM/GC and
you are talking about cost, and I don't think you can ignore that our general
conditions were lower based upon our indicating a certain time period to do the
job. We feel, as a local company with 170 employees, and that was one of your
questions, we are not going to debate how we could be rated for every single
category.
But we do have 170 employees, we're local, we have the resources here, and we
are not here just today for a job and leave tomorrow. We're here for the entire
time. And every single element of this project will be publicly bid out. There
have been a lot of newspaper articles lately about the CM/GC process, but I
think lost in that is that you are talking about a very small component of the
project when you talk about fee and general conditions.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 25 of 30 Pages
The critical element of CM/GC is when you bid that work out to the
subcontractor market, on the open market. You are going to get responses, and
how do those subcontractors respond to you. And as a local company, this is
not something that can be scientifically proved, we have an extremely good
relationship with the many subcontractors, the people who are going to be
bidding this job. We take care of them, and for many years down the road we
take care of them. And we work very hard marketing because we have a
relationship with those people.
That's where you are really going to get your cost savings. We've shown time
and time again over the seventeen years we have worked in Central Oregon that
the best bang for the buck, in terms of quality, cost and schedule, has come
from our company, Kirby Nagelhout Construction. So, again, I think it's good
to look at these various different issues, but I think that you've made a very
positive decision. I concur; all four companies are excellent companies, but we
are very vested to do an excellent job for Deschutes County. Thank you.
LUKE:
Anyone else wish to testify? Kevin, do you have a minute? One of the things
that the Commissioners ask staff to do is to make sure that there were public
members on the committee who were non -County employees. One of them is a
long-time banker, Chuck Rieb; and the other one is Kevin Wing, who works for
the local homebuilders' association. Before that he worked for the Metro
Homebuilders' Association, and has been around construction a long time.
KEVIN WING:
I'm the Executive Vice President of the Central Oregon Builders' Association.
Actually, this was my first CM/GC process, but I have sat through the interview
process before. I think it was fair. I should tell you that this was my first
experience on commercial type building. I have a lot of experience in -- we
teach classes on how to pick contractors -- mostly single family residential
contractors. We have a good relationship with the Construction Contractors
Board, and we know all about those things.
The process was pretty straight -forward. The scores, based upon bid, we
calculated by Susan according to a formula, and those scores were given to us.
We didn't have any leeway in that section. And Vik and Kirby Nagelhout both
scored equally as the lowest bidder. So that was the score that we all put in.
They each got ten points or whatever the maximum was in that category.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 26 of 30 Pages
And all the others were rated based upon some guidelines and a little bit of
leeway in each judge's mind. I remember thinking at the end of the process that
everyone was good, but, just based on price alone, we probably still would have
gone with Nagelhout because he was the low bidder. He was just slightly better
than Vik. They both scored equally in terms of points. But I remember
thinking, all things being equal, in terms of the other non -cost factors, the
committee would have gone with Nagelhout anyway.
LUKE:
But the overall process, you didn't feel intimidated or anything?
WING:
No. Not at all. What I meant by that last statement, because there was perhaps
a guffaw in the audience, was that if we were just looking at price, it would
have come down to Vik and Nagelhout. Adding in the other components -- I
mean, on mine, there was an 8 point difference. There were some wider ranges
with other judges, but I can't comment on that. But they were pretty darn close.
DALY:
I noticed in your scoring that you were pretty even for both companies except
the last two, overall impression and references. Is there anything specific about
that?
WING:
You know, I haven't seen that sheet since we handed them in that day. So I
don't remember what my individual scores were on that.
LUKE:
Since no one else wishes to testify, I'll close the public hearing. Commissioner
Daly, we have an option of making a decision today or later.
DALY:
I think we ought to make a decision today. I'm ready. I just have a couple of
comments to make. I purposely, because of my construction background,
stayed clear of this selection process. I think Mr. Luke did as well. And I
elected to have other folks do this.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 27 of 30 Pages
As far as Kirby Nagelhout is concerned, I've never met the man and wouldn't
know him if he walked in the room. If he is here, I don't know which one he is.
But anyway, I have no -- I know him by reputation, because he's done an awful
lot of work in this county. So I tried to be very objective in this whole process.
Unfortunately, it fell into our laps.
I really have to feel -- I was the deciding vote to go with this process. The
biggest issue, and being a contractor for 18 years it was a little bit foreign to
me. It was something new that I was never involved in, but I was a small
contractor. Low bidder was always the way I went, and sometimes low bidder
is not the best way to go either, as you can get people who are low bidder who
are not qualified. There's good in both sides of this issue.
The time element was the deciding factor to go this way, and that's why I voted
the way I did. At this point in time, I've got to believe that the process we had
here was as fair as it could be. And I'm not going to change anything. I'd still
want to go with Kirby.
LUKE:
Points are very arbitrary to some extent. Not to the person who is doing it, but
when you total up scores from different people who have scored things on a
different value system, they can do some strange things. I'm glad that Legal
Counsel put together the first, second and third place totals, and it came out
relatively the same. Nagelhout was still on top. But I think Vik moved into
second place. I'm glad to see that it did balance out to what the scores were.
I'm sure there isn't that kind of total difference between Nagelhout and the
others. I think they are all very qualified construction companies. But I'll have
to go with the process that we selected; I think it was a fair process. I don't
think it was unfair. I will go along with Commissioner Daly in upholding their
recommendation.
ISHAM:
I'll need to prepare a written decision for your consideration. You could
continue this meeting to a time certain to address the decision. I should have a
draft ready for you tomorrow.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 28 of 30 Pages
LUKE:
We will reconvene this meeting at 9:00 a.m. on Friday morning, for the purpose
of reviewing the written decision by Legal Counsel. We appreciate everybody
coming here today and taking the time to bring these issues to our attention.
This hearing was recessed at 12:05 P. m., and was continued to 9: 00 a. m. on
Friday, June 6, 2003.
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11
COUNTY SERVICE DISTRICT
4. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-11 County Service District in the
Amount of $824.77.
DALY: Move approval.
LUKE: Second.
VOTE: DALY: Yes.
LUKE: Chair votes yes.
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
5. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $166,593.14.
DALY: Move approval.
LUKE: Second.
VOTE: DALY: Yes.
LUKE: Chair votes yes.
6. Before the Board were Additions to the Agenda.
None were offered.
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 29 of 30 Pages
Being no further items brought before the Board, Chair Dennis Luke
adjourned the meeting at 12:10 p. m.
DATED this 4th Day of June 2003 for the Deschutes County Board of
Commissioners.
Dennis R. Luke, Chair
Tom DeWolf, Commissioner
ATTEST:
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Recording Secretary
Attachments:
Exhibit A: Preliminary Statement in Land Use Action Hearings or Appeals
before the Board.
Exhibit B: Oral Staff Report on TA -02-13 and ZC-02-5, DeMaris/Fancher.
Exhibit C: A set of three letters submitted into the record (from Rogers, Collins
and Miller)
Exhibit D: A letter of protest from VIK Construction Company of the County's
intent to award contract, dated May 30, 2003
Exhibit E: A copy of the scoring of requests for proposals for the County
warehouse/I.T. building
Exhibit F: Warehouse Project Cost Proposals Sheet
Exhibit G: A copy of a portion of OAR relating to the right to protest an award
Minutes of Board of Commissioners' Meeting Wednesday, June 4, 2003
Page 30 of 30 Pages
Y
PRELIMINARY STATEMENT IN LAND
USE ACTION HEARINGS OR APPEALS
BEFORE THE BOARD
I. INTRODUCTION
A. This is a de novo hearing to consider the
addition of lot 6700 on map 21-10-35C to
the decision for Deschutes County
Hearings Officer's approval of files TA -
02 -13 & ZC-02-5.
B. In that application, the applicant
requested to change the zoning on 7 lots
from Rural Residential Zoning to Rural
Commercial. At the hearing, an 8th lot
was added. This hearing will consider
the addition of that one lot.
II. BURDEN OF PROOF AND APPLICABLE
CRITERIA
A. The applicant has the burden of proving
that he/she is entitled to the land use
approval sought.
B. The standards applicable to the
application(s) before us are on pages 1
and 2 of the Findings & Decision of the
Hearings Officer as well as on page 2 of
the Staff report. The standards are also
listed on the overhead projector.
C. Testimony and evidence at this hearing
must be directed toward the criteria set
forth in the notice of this hearing, the
staff report, Hearings Officer's
recommendation as well as toward any
other criteria in the comprehensive land
use plan of the County or land use
regulations which any person believes
apply to this decision.
D. Failure on the part of any person to raise
an issue with sufficient specificity to
afford the Board of County
Commissioners and parties to this
proceeding an opportunity to respond to
the issue precludes appeal to the Land
Use Board of Appeals on that issue.
Additionally, failure of the applicant to
raise constitutional or other issues
relating to the proposed conditions of
approval with sufficient specificity to allow
the Board to respond to the issue
precludes an action for damages in
circuit court.
III. HEARINGS PROCEDURE
A. Evidence to be reviewed by the Board.
1. De Novo Hearing:
The Board's decision on this
application will be based upon the
record before the Hearings Officer,
the Hearings Officer's decision, the
Staff Report and the testimony and
evidence presented at this hearing.
Again, this hearing only concerns the
one additional lot that was added to
the applicant's request at the hearing
in front of the Deschutes County
Hearings Officer.
IV. ORDER OF PRESENTATION
A. The hearing will be conducted in the
following order.
1. The staff will give a report.
2. The applicant will then have an
opportunity to offer testimony and
evidence.
3. Proponents of the appeal will then be
given a chance to testify and present
evidence. When all other proponents
have testified, opponents to the
appeal will then be given a chance to
testify and present evidence.
4. After both proponents and opponents
have testified, the applicant(s) will be
allowed to present rebuttal testimony
but may not present new evidence.
Page 1 of 2 -Chair's Opening Statement for Land Use Hearing TA -02-13 & ZC-02-5
Exhibit I%
Page / of
5. At the Board's discretion, if the
applicant(s) presented new evidence
on rebuttal, opponents may be
recognized for a rebuttal
presentation.
6. At the conclusion of this hearing, the
staff will be afforded an opportunity to
make any closing comments.
7. The Board may limit the time period
for presentations.
B. Cross-examination of witnesses will not
be allowed. A witness who wishes,
during that witness' testimony, however,
to ask a question of a previous witness
may direct the question to the Chair. If a
person has already testified but wishes to
ask a question of a subsequent witness,
that person may also direct the question
to the Chair after all other witnesses have
testified but prior to the proponent's
rebuttal. The Chair is free to decide
whether or not to ask such questions of
the witness.
C. Continuances
The grant of a continuance or record
extension shall be at the discretion of
the Board.
3. For all hearings.
a. If the Board grants a
continuance, it shall continue the
public hearing to a date certain at
least seven days from the date of
this hearing or leave the written
record open for at least seven
days for additional written
evidence.
b. If at the conclusion of the hearing
the Board leaves the record open
for additional written evidence or
testimony, the record shall be left
open for at least seven days for
submittal of new written evidence
or testimony and at least seven
additional days for response to
the evidence received while the
record was held open. Written
evidence or testimony submitted
during the period the record is
held open shall be limited to
evidence or testimony that rebuts
previously submitted evidence or
testimony.
4. If the hearing is continued or the
record left open, the applicant shall
also be allowed at least seven days
after the record is closed to all other
parties to submit final written
arguments but no new evidence in
support of the application.
V. PRE -HEARING CONTACTS, BIASES,
CONFLICTS OF INTERESTS
A. Do any of the Commissioners have any
ex -parte contacts, prior hearing
observations; biases; or conflicts of
interest to declare? If so, please state
the nature and extent of those.
B. Does any party wish to challenge any
Commissioner based on ex -parte
contacts, biases or conflicts of interest?
(Hearing no challenges, I shall proceed.)
(Ord. 2002-004 § 1, 2002; Ord. 90-007 § 1
1990)
Page 2 of 2 -Chair's Opening Statement for Land Use Hearing TA -02-13 & ZC-02-5
Exhibit Iq
Page -2- of
Date of Hearing: June 4, 2003
Oral Staff Report
TA -02-13 & ZC-02-5
Demaris/Fancher
For the record, my name is Jon Skidmore, I am an Associate Planner
with the Deschutes County Community Development Department.
II. The purpose of today's hearing is to accept relevant testimony and
evidence on one particular issue in regards to the following land use
applications, file numbers, TA -02-13, and ZC-02-5. The
applications seek to amend the Deschutes County Comprehensive
Plan and Zoning Code to change 8 lots from RR -10 Zoning to Rural
Commercial Zoning. The proposed changes would designate the
subject property as part of the Rosland Rural Commercial area. This
change would officially recognize the historic commitment of the
subject property as commercial in nature.
This hearing is being held to consider the inclusion of the 8th lot in
this TA/ZC application because it was not included in the initial
application. Subsequently, proper notice was not provided to the
surrounding property owners.
III. The applicant is Karen Demaris (owner), represented by her
attorney, Liz Fancher.
Exhibit 16 1 1
Page _� of
Date of Hearing: June 4, 2003
IV. Applicable criteria to review this application are listed on the
overhead.
V. Currently the Comprehensive Plan designation for the subject
property is Rural Residential Exceptions Area. The amendments
would change this designation to Rural Commercial. The Zoning for
this property is Rural Residential (RR -10). The Zoning would change
to Rural Commercial as well.
VI. The subject property has the address of 52426 Lost Ponderosa
Road. The property is identified on the County Assessor's tax map
21-10-35C tax lot, 6700.
VII. The subject property totals close to an acre in size (42000 s.f.). The
property is also within the Landscape Management Combining
Zone triggered by Burgess Road as well as the Wildlife Area
Combining Zone
VIII. The property is currently developed with two wells which serve two
properties to the south (tax lots 7400 & 7600).
Exhibit % 2
Page -�z of_
Date of Hearing: June 4, 2003
IX. Proposal: The applicant made an application for 7 other lots to be
designated Rural Commercial. At the hearing, it was decided that
this additional lot (6700) should be included in the text
amendment/zone change application. The problem was that
insufficient notice was provided to surrounding property owners of
the inclusion of this additional lot. Therefore, we are conducting this
hearing to allow the public to be heard on the matter and to fulfill our
notification requirements. This hearing concerns only lot 6700 as the
matter for the other 7 lots has been decided (DCC 22.28.030(8)).
X. Notice of the hearing was sent to those properties within 250 feet of
the property and published in the Bend Bulletin on May 19, 2003.
XI. The Planning Division received 6 letters from neighbors (2 were from
the same person) as well as a few phone calls (3 or 4). One concern
of the neighbors is the expected increase in traffic as a result of this
application. The property is currently developed with two wells — not
big traffic generators. However, this issue would be dealt with as part
of the site plan review/conditional use review process if development
is proposed on this lot in the future.
XIII. CONCLUSION
Exhibit 13 1 3
Page ,3 of S
Date of Hearing: June 4, 2003
There are a few key issues to consider with the inclusion of this lot
as part of the Rosland Rural Commercial Zone.
First, the potential development opportunities on this property are
severely limited by the fact that in order to develop this lot, a
subsurface sewage disposal system must be approved. Considering
it's size, the lot can not be developed too intensely.
Second, this lot was included after a discussion between the H.O.
and the applicant's attorney regarding it's role as a utility yard of
sorts for lots 7400 & 7600.
Third, per 18.136 in order to amend the Zoning Code among other
things, the applicant must demonstrate that there has been a change
in circumstances since the property was last zoned or that a mistake
in the initial zoning was made. The applicant did a great job of
demonstrating how both of these factors affect this lot (County
adopted a rural commercial zoning district and the properties were
developed commercially since prior to restrictive zoning — even had
deed restrictions for lots 1 — 7 of block 2 & 1 - 4 of block 4) and has
demonstrated how a limited commercial zone (such as the Rural
Commercial Zone) is appropriate for the property.
Exhibit 6 4
Page Ll of
Date of Hearing: June 4, 2003
4 Staff respectfully recommends that the Board of County
Commissioners officially adopt the Hearings Officer's decision
for files TA-02-13/ZC-02-5 which includes the property
described as 21-10-35C, tax lot 6700.
If the BOCC agrees with the Hearings Officer's decision to
include this additional lot, the Board can require the applicant's
attorney to write findings for the decision.
If the BOCC does NOT agree with the Hearings Officer's
decision to include this additional lot, staff will prepare the
findings.
THANK YOU. THIS CONCLUDES MY PRESENTATION.
I AM AVAILABLE FOR ANY QUESTIONS YOU MIGHT HAVE.
Exhibit 13 5
Page of .S
Exhibit C -
Page / of
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Exhibit C -1 -
Page of
Exhibit C,
Page _3 of Y
Nov Collins
PYH BI`T -
P.O. Box 2363
La Pine, ORR 97739 97739
Phone 1-541-536-9443
June 03, 2003
Community Development Department
117 NW Lafayette Avenue
Bend, OR 97701
FILE NUMBERS: ta-02-13/ze-02-5
LOCATION: Deschutes County Assessors Map 21-20-35C, tax lot 6700
This testimony is in opposition of a Zone Change from Rural Residential to Rural Commercial Zoning.
We would like our street to remain a residential street. Once a business is put on Lost Ponderosa Road it will both
increase the traffic and decrease our property values as a nice residential area.
If one property is made into a commercial zone, what will stop the neighboring properties from the doing the same
thing and making our residential area a commercial area instead.
Sin ly,
Roy & Katy o lin
Exhibit C -
Page Ll of S
ROSS AND CONNIE MILLER
..........................................................................................................................................................................................................................................
52437 Lost Ponderosa
LaPine OR
97739
541-536-7497
June 4, 2003
Dear Deschutes County and those concerned,
From the first moment my family and I heard about a business area coming to the neighborhood
we were against it. I'm sure that though the businesses would provide many opportunities for the owners
and workers it would not be an advantage, at ail, to those Iiving in the homes near by these businesses.
The Lost Ponderosa/Bitter Brush/River View block hosts a great deal of children from elementary
school students to high school students, me myself having at least one child in each of the three schools in
La Pine. Even further, we have just as many senior citizens, hoping to live peacefully and without
disturbance. Bringing businesses to our small neighborhood would be just the disturbance they don't
need.
Having cars come and go constantly on our streets would be obnoxious, seeing as how we've had
very few cars come and go down our sweets throughout the day, not to mention unsafe. For the most part
the children are safe to play in their front yards, and riding bikes on the streets because of the very little
traffic coining through on a daily basis. When we have constant traffic coining through how safe do you
think it will be for young kids to learn how to ride their bikes on the othenNise safe streets, how about the
women that walk nearly every morning for exercise?
The view, who wants to look out then front window and see a parking lot? The cars would be an
ugly Site, as well as whatever the n-- - ht}C]nPCCPc Innk like_ ThP h��cinecc against n I I the homPe whp..thPr nr
not they are nice looking, would not look good, they would contrast too much and cause an eyes sore.
The business area is not soinething we need in our neighborhood.
Sincerely ,
J 2
M%g.
Exhibit <2�
Page S of
VIK
Construction
Company
440 East Broadway,
Suite 160
Eugene, Oregon 97401
TEL 541 484 1188 OR CCB# 000571
FAX 541 343 9396 CA CCB# 245482
vikconst@rio.com
«L.
Board of County Commissioners
Deschutes County
Administration Building
1130 NW Harrison
Bend, Oregon 97701
5/30/03
RE: Protest of the County's Intent to Award Contract
Dear Commissioners:
Thank you for your prompt response to our request for the evaluation material used in
determining the GMGC for your new Warehouse/IT project. Although we believe the selection
process for the CMGC for construction of your new Warehouse/IT Building was conducted with
integrity, we identified several significant inequities that have disadvantaged our firm in the
scoring process and have canceled an otherwise probable winning proposal on our part. We feel
we can all learn from this process, however we protest your initial selection based upon the
following inequities:
1. Section 1: Experience. This section was flawed because our experience, shown in the
substantial listing of steel and masonry block wall projects, specific to your project, is
at least comparable if not greater in number than the Nagelhout firm. Half of the
scorers acknowledged this, but the others did not and this difference carried a
significant point discrepancy of 16 points against us.
2. Section 3: Ability to Meet Schedule. Vik Construction should have received equal
points with Nagelhout because we specifically answered the RFP question asked:
"Show evidence that the proposer can meet a completion schedule of Marchl, 2004,
period." This was clearly shown. If the question was stated something like: "Show on-
time completion for all of your projects over the period of the last 25 years," our
response would show our exemplary record of on-time completion for a wide range of
type, size and complexity of projects. This would surely have been demonstrated had a
conventional interview been conducted.
3. Section 5: Value Engineering. We again answered the questions specifically and all
but three scorers acknowledged this, but inexplicably and in error, these three gave 0
points for our response. 0 scoring means we provided no response which is not true.
JUN -,
Exhibit `D
�""" - Page / of
4. Section 8: References. We take considerable exception to our substantially reduced
scoring in this section for one reason: A very positive, favorable reference was given
by Jerry Gardner for all of our six major projects at St. Charles Medical Center
completed over the past 12 years. Jerry is the one person responsible and in charge of
facilities construction at St. Charles. He is the one person knowledgeable about all the
construction issues involved here and the person responsible for selecting us back
several times for work ranging from $5-9 million. Apparently, a Deschutes County
representative however called Jerry's secretary, Linda Barren, and interpreted her
responses negatively. Our point is that there is no basis for this conclusion and Linda is
not in a position of experience, authority, or responsibility to have been referenced
checked in the first place. This inequity is particularly significant because of the
substantial 19 -point swing that occurred. Also, one of your scorers gave higher scores
than the allotted total. Three of the competitors were given 20 points, while we were
given 15 points out of a 10 point maximum score for this section.
5. Written responses to an RFP provide limited understanding and clarification of the
proposers basis of proposal, particularly with this form of contracting. With this in
mind, interviews are usually held for finalists in almost all CMGC selection
competitions. Without this opportunity for clarification and understanding, the idea of
preconceived selection becomes more conceivable.
6. In reviewing the point summary sheet, there were numerous individual point totals that
were inaccurate for all three of the competitors other than the Nagelhout firm. The firm
totals are correct as follows: R&H (768), Robinson (707), and Vik (760). Also, the
posted individual scorer totals were significantly inaccurate. Please see the attached
worksheet with the correct calculations.
7. A point probably also worth noting is that we have a concern that the point ranges of
three of the selectors who gave Nagelhout a maximum 100 points have substantial
broader point ranges than most of the other selectors. This has also in part given
Nahelhout an unfair advantage based entirely on scoring not substance. As an
example, Renee showed a point range of 30 points, Denis 24 points, Kevin 18 points
while Tom and Joe showed a 6 -point range.
8. The efficacy of the scoring is brought into substantial question in regard to the
Nagelhout firm scoring a perfect 100 points on four of the selectors scoring. Given the
nature of the business, no CMGC firm is perfect, and nearly half of the total points
have been given despite this.
Due to the number of miscalculations and inaccuracies found within the scoring material, we
protest your initial judgement and request that you rescore all of your RFP submissions and
further consider the possibility of interviews to ensure fairness to all proposers. We take great
pride in all of our work and service in Deschutes County over the past 35 years. We hope that
our letter provides you with helpful feedback that is of benefit to you. We look forward to your
response.
Sincerel ,
Gregory ik
President
Exhibit P
Page g of `f
REQUIRED DOCUMENTATION
Interested parties who wish to submit a proposal as outlined in this document shall submit ten (10) complete
responsive proposals containing all of the following:
A description of the proposers construction and CM/GC experience along with a brief history of proposer
including year established, number of employees, associations and awards. Indicate which CM/GC contracts
were with a state, county, city, school district or other governmental units. Include at least five references.
2. Evidence that the proposer is qualified to undertake the project and is in good standing in the State of Oregon
and licensed with the Construction Contractors Board. Qualifications should include familiarity with site, the
type of construction proposed for this project and qualifications and Central Oregon construction challenges.
3. Evidence that the proposer can meet a completion schedule of March 1, 2004. List all current and planned
projects and show how this project fits into schedule.
4. Provide the names and resumes of the principal officers, partners, and staff to be assigned to the project, the
name(s) and resume(s) of the individual(s) who will be considered in charge of the project and a statement
as to whether staff may be reassigned during the course of the project.
Provide examples of value engineering used in prior projects along with schedule and cost savings
associated with the value engineering. Include references for each contract where these value engineering
were used.
6. Detailed fee proposal along with reimbursables, mark-up and any other costs to the County. Provide an
estimated cost for each General Condition item below. List the items in the exact order indicated.
General Liability Insurance
Safety
Temporary Power (Hookup)
Temporary Power (Monthly)
Temporary Phone (Hookup)
Temporary Phone (Monthly)
Temporary Fax (Hookup)
Temporary Fax (Monthly)
Temporary Toilets Dry (monthly)
Temporary Toilets Wet (Hookup)
Temporary Toilets Wet (monthly)
Temporary Water (Hookup)
Temporary Water (Monthly)
Project Sign
Temporary Office (Monthly)
Temporary Storage (Monthly)
Temporary Barricades
Temporary Fence
Weather Protection
Snow Removal
Temporary Heat
Cleanup (Progress)
Cleanup (Final)
Job Site Supervision
Job Site Project Management
As-Builts (Project Assistance)
Survey & Layout (Foundation)
Survey & Layout (Walls)
Page 4 of 27 7 7 /�
SACommissioners\Staff\Susan Ross\Building Projects\Warehouse\Warehouse Bid Packet.doc Exhibit 1/
Page of 1_
Survey & Layout (Site Work)
Home Office Travel Expenses
Blue Printing Costs
Bid Advertisements
Provide total monthly cost and a total project cost based on your construction schedule.
If any of the requested documentation is unavailable, please provide brief statements explaining its absence.
Materials are to be in 81/2 " x 11" format.
RECEIPT OF PROPOSALS
Written proposals will be received at the office set forth in the Notice of Invitation for Proposals until, but not after the
date and time set forth in the Notice of Invitation for Proposals. (Oral presentations, if scheduled, will be on Thursday,
May 22, 2003, for a firm or individual selected for interview.)
Page 5 of 27
S1Commissioners\Staff\Susan Ross\Building ProjectsMarehouselWarehouse Bid Packel.doc
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OAR 137-030-0104(4) Right to Protest Award
(4) Right to Protest Award.
(a) An adversely affected or aggrieved Offeror may submit to the Agency a Written protest of the
Agency's intent to award within 14 Days after issuance of the notice of intent to award the Contract,
unless a different protest period is provided under the Solicitation Document.
(b) The Offeror's protest shall be in Writing and must specify the grounds upon which the protest is
based.
(c) 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 or the Responsible Proposer submitting
the best Responsive Proposal and is next in line for award, i.e., the protesting Offeror must claim that all
lower Bidders or higher -scored Proposers are ineligible for award:
(A) because their Offers were nonresponsive or
(B) the Agency committed a substantial violation of a provision in the Solicitation Document or of an
applicable procurement statute or administrative rule, and the protesting Offeror was unfairly evaluated
and would have, but for such substantial violation, been the Responsible Bidder offering the lowest Bid
or the Responsible Proposer offering the highest -ranked Proposal.
(d) The Agency shall not consider a protest submitted after the time period established in this rule or
such different period as may be provided in the Solicitation Document.
Exhibit 6'
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