2004-878-Order No. 2004-083 Recorded 6/23/2004D
V
SEL
DESCHUTES COUNTY OFFICIAL RECORDS CJ 10040818
NANCY BLANKENSHIP, COUNTY CLERK YY
COMMISSIONERS' JOURNAL ,
111111111111111111111111111111111
2004-878
061601 A 4 04 U , 2 PM
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
ACTING AS THE LOCAL CONTRACT REVIEW BOARD
An Order Rejecting a Protest of a Proposed
Award of a Contract for County Stationary
Printing
ORDER NO. 2004-083
WHEREAS, the County is subject to the Oregon Attorney General's Model Public Contracting Rules
(Model Rules), as currently set forth in OAR 137-30-0000 to 137-30-0145; and
WHEREAS, the County announced the solicitation for stationary printing, setting forth requirements for
printed stationary for all county departments for a period of three years and including as a bid alternate the cost
of preparing such materials in color, as distinguished from brown and white; and
WHEREAS, the County determined that the bid submitted by Sagebrush Printing and Copying
(Sagebrush) was the lowest responsive bid and announced its intention to award them the bid; and
WHEREAS, another bidder, Minuteman Press (Protester), submitted to the County on June 3, 2004 a
timely protest of the proposed award, alleging that the bid instructions specifying the bid alternate of "Multiple
Colors" was ambiguous and that the bid of the apparent low bidder, Sagebrush, was nonresponsive as it
allegedly qualified the bid to require all of the county's required bidding needs to be prepared in a single base
run; and
WHEREAS, the Board, acting in its capacity as the Local Contract Review Board, scheduled and
conducted a public hearing on June 21, at which the protesting party was permitted to testify and establish why
its bid should be considered the lowest responsive bid pursuant to OAR 137-30-0104; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ACTING
IN ITS CAPACITY AS THE LOCAL CONTRACT REVIEW BOARD HEREBY FINDS CONCLUDES AND
ORDERS as follows:
Section 1. The bid protest submitted by Minuteman Press (Protester) was heard and considered by the
Board in a properly convened public meeting at which Protester was given an opportunity to testify why the
Board should not award the contract to the apparent low bidder, Sagebrush Printing and Copying Center
(Sagebrush) and instead award the contract to Protester.
The testimony and evidence submitted by Protester principally consisted of concerns it had with the
County's bid package. Specifically, Protester alleged that the number of "Multiple" colors referred to in the bid
solicitation package as an alternative to black and white or brown and white was ambiguous and could be
interpreted as two, three or four colors. The bid package contained a sample multiple color enlargement of the
county's logo.
Protester also complained that the bid package did not follow "industry standard" and that the county
should have used a consultant, much like an engineer, to develop a specific set of specifications for the proposed
work. Protester's evidence also focused on the fact that several other bids were rejected by the County as
nonresponsive. Six of the rejected bids failed to include a cost for the alternate of preparing stationary in color.
PAGE 1 of 3- ORDER No. 2004-083 (24/06/2004)
One of the rejected bids failed to include proposed costs for the Sheriff and the Fair and Expo Center. One bid
was rejected because each print job would be subject to a separate future quote. Not all of the rejected bids were
for the same reason that Protester's bid was rejected (for not having included a bid for "Multiple Colors").
Protester offered no testimony from other bidders as to how they interpreted the County's solicitation package or
why they failed to include a bid for multiple colors. The Board refuses to speculate that the reason other bids
were rejected was because there was fatal ambiguity in the alternate requirements of multiple colors.
Protester alleged that the bid submitted by Sagebrush was nonresponsive, because it assumed it would
prepare all of the County's printing needs in a single base run. The Sagebrush bid explains that it would print a
base run of 93,000 `sheets with the full color county logo and thereafter imprint specific county department
names and addresses in black and white or brown and white. The Board finds the Protester's evidence
insufficient to conclude that Sagebrush's bid was nonresponsive.
Protester did not dispute that it had failed to submit a bid containing the alternate of Multiple Colors as
illustrated by the enclosed sample county logo. Protester's bid was also qualified in that its bid prices were
described as "an average of all items in a particular category and will not necessarily be the actual per piece
price for each department." Protester's bid contained 150 separate categories. Sagebrush's submittal was not so
qualified. Furthermore, Protester's bid as to two-color materials was higher than that submitted by Sagebrush.
No bidder complained about the bid solicitation documents prior to the close of the bidding. The
commentary to the Model Rules for OAR 137-30-0104 states that the review process for protests of contract
awards is limited to disputes concerning the agency's contractor selection or contract award decisions, not to
provide a review process for any issues or concerns that could have been raised, prior to the close of the
solicitation, pursuant to OAR 137-030-0050. "Requiring protests related to errors apparent on the face of the
bid to be filed before the bid opening protects the integrity of the bid process. Otherwise, a bidder may wait
until the bids are submitted and the contract is awarded to another candidate, then protest the bid solicitation,
force another round of bidding, and adjust its prices and strategies after it has had the opportunity to view its
competitors' bid. Because allowing such belated protest is prejudicial to the initial winning bidder, bidders
should object to mistakes or ambiguities in a bid solicitation before they bid."
The Board concludes that Protester failed to establish that all lower bidders are ineligible as
nonresponsive, that the County committed a substantial violation of a provision of the solicitation document, or
that Protester was unfairly evaluated and would have, but for the County's violation, been the Responsible
bidder offering the lowest bid, OAR 137-030-0104(4). Protester's concerns about the form of the solicitation
package and any ambiguity in terminology could have been presented prior to the close of bidding. The Board
considers such objections to be waived for not having been raised in a timely manner.
PAGE 2 of 3- ORDER No. 2004-083 (24/06/2004)
Section 2. The Board finds that Protester has not established that it is eligible for award of the contract
as the Responsible Bidder submitting the lowest responsive bid. Therefore, the Board rejects the protest
submitted by Protester to the proposed award of a contract for stationary printing.
DATED this 'day of u4k~ , 2004.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ti.
~ -
MICHAEL M. DALY, Chair
DE IS R. LUKE, Commis Toner
TOM DEWOLF, CWmissiOner
PAGE 3 of 3- ORDER No. 2004-083 (24/06/2004)
