2004-1391-Order No. 2004-098 Recorded 12/2/2004REVIEV~I
LEGAL COUNSEL
DESCHUTES COUNTY OFFICIAL RECORDS CJ 7004'1391
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL iZ/OZMAI 03'5835 PM
IIIMYNVIVVI
2004-1391
i
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying a Bid Award Protest and
Awarding a Contract for Knott Landfill Rock
Removal Project
ORDER NO. 2004-098
WHEREAS, the Solicitation Document for the Solid Waste Department calling for bids on the
Knott Landfill 2004 Rock Removal Project stated that bidders were required to attach to their bids a
complete set of contract documents; and
WHEREAS, L&H Grading submitted a bid which failed to include the second of three contract
addenda issued by the County; and
WHEREAS, the Solid Waste Department publicly announced its intention to award the
contract to L&H Grading as the lowest responsive bid; and
WHEREAS, JAL Construction Inc. submitted a timely protest to the notice of intent to award
the contract to L&H Grading, and the Board on Monday, November 22, 2004 conducted a hearing;
and
WHEREAS, following the public hearing on the JAL Construction bid protest, the Board made
following findings of fact and conclusions:
1. The bid submitted by L&H Grading was complete in all respects, except the failure to
append a copy of Addendum No. 2.
2. The bid submitted by L&H Grading was the lowest bid.
3. The bid submitted by JAL Construction Inc. was complete in all respects, was timely
received and was the second lowest bid.
4. The bid documents submitted by L&H Grading included a handwritten notation on the face
of the bid, making specific reference to the three addenda (including Addendum No. 2) to such
Solicitation Document issued by the County.
5. The purpose of Addenda No. 2 was to allow the contractor to complete the work in, 45 days
rather than 30 days, as originally required.
6. JAL Construction Inc. argued that L&H Grading's failure to append a complete copy of
Addendum No. 2 in violation of the Solicitation Document rendered such bid nonresponsive and
required the County to reject it.
7. The failure of the L&H Grading bid to attach Addenda No. 2 did not affect the price; quality
or quantity of work to be provided under the contract or in any way qualify or condition the work to be
performed and was not a substantial violation of the bid requirements.
8. The Solicitation Document allows the County to waive minor irregularities in bids submitted
in response to the solicitation.
PAGE 1 of 2- ORDER No. 2004-098 (12/01/04)
9. The County's rules, based upon the Attorney General's Model Rules, specifically OAR 137-
030-0075(2)(a), permit the County to waive or permit an offeror to correct a minor informality, one
which is a matter of form rather than substance that is evident on the face of the offer, or an
insignificant mistake that can be waived or corrected without prejudice to other offerors. The rule
includes by example, failure to acknowledge receipt of an addendum where it is clear on the face of
the offer that the offeror received the addendum and intended to be bound by its terms; and the
addendum did not affect price, quantity or delivery.
10. The Board finds that the error committed by L&H Grading in this case was an insignificant
misstatement, or minor informality, that the L&H Grading bid contained substantial evidence from
which the Board can and does conclude that L&H Grading had received the addenda and intended to
be bound thereby, that it did not affect price, quantity or delivery and was the type of error which the
Board has authority to waive.
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
HEREBY ORDERS as follows:
Section 1. For the reasons stated in the recitals to this order the failure of L&H Grading to attach a
copy of Addendum No. 2 to its bid on the Solicitation Document for the Solid Waste Department's
2004 Rock Removal Project does not render such bid nonresponsive and is hereby waived.
Section 2. The bid protest submitted by JAL Construction Inc. is denied.
Section 3. The proposed award of the contract to L&H Grading by the Department of Solid Waste is
hereby approved.
DATED this 1 st day of December 2004.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE 2 of 2- ORDER No. 2004-098 (12/01/04)
I UM UEVVYLF-, Commissioner
,r
L:
DENNIS R. LUKE, Commissioner