Loading...
2004-1432-Minutes for Meeting November 22,2004 Recorded 12/16/2004DESCHUTES COUNTY OFFICIAL RECORDS Cd 1004'1431 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 111111111 ,■„ 111101111111111 oil 12/16/2004 04:08:23 PM 2004-1432 DESCHUTES COUNTY CLERK CERTIFICATE PAGE is 0 This page must be included if document is re-recorded. Do Not remove from original document. Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ore MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, NOVEMBER 22, 2004 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St.., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tom De Wolf. Also present were Mike Maier, County Administrator; Laurie Craghead, Legal Counsel; Timm Schimke, Solid Waste Department; George Kolb, Road Department;, George Read, Tom Anderson, Devin Hearing and Kevin Harrison, Community Development Department; Bob Haas, Information Technology; media representatives Chris Barker of the Bulletin and Barney Lerten of bend. com; and The Bugle; and seven other citizens. Chair Daly opened the meeting at 10: 00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Signature of Document No. 2004- 511, an Intergovernmental Agreement between Deschutes County and the Oregon Department of Revenue regarding the Purchase of GIS Software. Bob Haas gave an overview of the grant; the software will be primarily utilized by the Assessor's Office as part of an ongoing project. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 1 of 20 Pages 3. Before the Board was Consideration of Signature of Document No. 2004- 388, a Release of a Utility Easement Across Privately -owned Property. George Kolb explained that the property owner has provided easements to utility companies as needed, and the County no longer needs the easement. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. 4. Before the Board was Consideration of Signature of Order No. 2004-094, Accepting a Petition and Setting a Public Hearing for the Stauffer Annexation into Deschutes Rural Fire Protection District #2. Laurie Craghead stated that the order sets the hearing date for this annexation. Several property owners wish to participate in this annexation, which was submitted by the Fire Protection District for Board review and approval. DEWOLF: Move approval. LUKE: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. 5. Before the Board was Consideration of Second Reading and Adoption of Ordinances No. 2004-008 and 2004-009, Adopting of a Plan Amendment and Changing the Zone of a Parcel in the Terrebonne Rural Community from TeR-5 to TeR. Devin Hearing said that there has been no appeal received on this issue. LUKE: Move second reading of Ordinance No. 2004-008. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 2 of 20 Pages Chair Daly conducted the second reading of Ordinance No. 2004-008. LUKE: Move second reading of Ordinance No. 2004-009. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. Chair Daly conducted the second reading of Ordinance No. 2004-009. LUKE: Move approval of Ordinance No. 2004-008. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. LUKE: Move approval of Ordinance No. 2004-009. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. 6. Before the Board was a Discussion of Input to LCDC regarding Proposed Changes to Goal 11, Public Facilities and Services (i.e. Sewer System Extensions). Kevin Harrison gave an overview of the reason for the item. A hearing is scheduled for December 8; however, it is possible that it may not be adopted at that time. Commissioner Luke said that he met with LCDC staff, and thought this would have been done a long time ago. He explained that to have a sewer system in a rural community that people can't hook into doesn't make any sense. The idea is to avoid putting in septic systems, especially in sensitive areas. This would affect lots that are adjacent to a sewer system but not in the development actually served by the system. They should be allowed to hook into the sewer system; however, under current rule if a building can't be approved, this wouldn't apply. But if there is a sewer system nearby, it would make sense to use that instead of a septic system. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 3 of 20 Pages 7. Before the Board was a Public Hearing on a Protest of a Notice of Intent to Award a Contract for the Knott Landfill 2004 Rock Removal Project. This item was addressed last. Michael Peterkin, an attorney representing Joe Levesque of JAL Construction Company, came before the Board. PETERKIN: I want to first review the contract documents to point out several paragraphs. Then I will talk about the nature of our bid protest, which is based on contract language and contract law in Chapter 279 in the model rules for the Attorney General. First of all, if you remember the issue is whether a bidder can be a responsive bidder if they do not include all contract documents. In this case, L & H Grading did not include all the contract documents. One page 1 of the invitation to bid, it states that the bid shall be made and incorporate all contract documents. Then in paragraph 6 it states that the bidder must include a complete set of contract documents. Paragraph 15 specifically talks about addenda; in this case, if you remember, L & H Grading didn't include addendum #2. And in paragraph 15 it says that all addenda are part of the contract. Now, I think paragraph 17 is very important when you evaluate this; "The minimum bid requirements are strictly observed; variance will result in rejection of the bid as non-responsive." That's the language of the bid documents. In paragraph 19, it says that "Any deviation from the specifications shall render the bid non-responsive." That's what I believe occurred here. There's a general rule in contracts that specific language controls general. I do want to point out that this information to bidders does have some general language. But I don't think it is controlling. For example, on page 1 it says that Deschutes County may reject any bid not in compliance. It doesn't say substantial compliance; it just says not in compliance. And then in paragraph 11 it says, "County reserves the right to accept or reject any or all proposals, and to waive any informalities and irregularities in the proposal. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 4 of 20 Pages So, you would think that the County has a lot of discretion here, but I think that it doesn't go so far as to ignore or waive a contract document. Because if you do that, then you are saying that the contract itself wasn't formed. So, let's be specific. We know that addendum #2 wasn't included as required by the bid documents. That would make it non-responsive, without something more. It is our position that when a bidder doesn't include contract documents, as opposed to other irregularities or informalities, that that's fatal. You cannot be a responsive bidder unless you include and submit all contract documents. You may want to consider that it deviates from the invitation to bid. Therefore, there's no meeting of the minds. The County, therefore, can't come back later and say, "Well, L & H intended to include or accept addendum #2." There's no evidence of that. I think that paragraph 17 is very important; again, because there the language is specific that any variance is a rejection and is non-responsive. It talks about "shall" and not "may". And at least from a legal standpoint, when we look at documents that require bidders "shall" submit all the contract documents, then there's no discretion. Therefore, the general provisions in the contract would not be operating. I think that if the Commissioners or County Counsel start interpreting bids and contract formalities, it sets a dangerous precedence. I'd just like to bring this to focus. There were three addendums in this invitation to bid. The question arises, well, if you can waive part of the contract, why not other parts? So addendum #3 requires three pages to be changed. This was a November 2, 2004 addendum. The first is to remove the invitation to bid page 2 of 45 and replace it with the enclosed revised page. This involved the time for submitting bids. Now, I know that addendum #2 extended the time of performance, but that's no less important as this addendum #3. DEWOLF: But addendum #3 is not in question here, right? PETERKIN: Correct. I am using it as an example. Commissioner DeWolf, you bring up a very important point. Where does this body stop? If addendum #2 can be ignored, why not addendum #3? Where is your power of discretion? Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 5 of 20 Pages DEWOLF: I want to be clear that I didn't bring up that point. I was just asking a question of what your point was. PETERKIN: That is my point. Because if one page is sufficient to deviate from contract requirements, why not three? How about six? Where do you draw the line? My point is very clear. You either have a contract or you do not. It's not like an informality or irregularity that can be brought up. LUKE: We don't have a contract yet. We have a bid proposal and submitted bids. We do not have a contract. PETERKIN: Right. You will have a contract when the bid is accepted. And the notice of award was issued. The joining of those creates the contract. I want to talk about the JAL versus Friedman case just for a moment, because I think that perhaps County Counsel may have relied on that case. That case involved my client, in fact, against the City of Bend, and it dealt with where a bid was supposed to be delivered, and was it delivered to the correct address. The Court of Appeals talked about substantial compliance with all prescribed bidding procedures and requirements. What that case didn't address is the bid documents and when the bid documents or information for bid requires strict performance so that the offer is a reflection of what the County wants to receive. That case didn't address that. So when you talk about a rule of substantial compliance, I think that's a very narrow rule, and brings the question of what the County will do in these kinds of circumstances. Quite frankly, does this body want to review bid after bid if either County Counsel or someone in the department decides after bid opening to review what was previously determined as non-responsive. This is exactly what occurred here. At the bid opening, JAL was the lowest responsive bidder. L & H's bid was not opened because it was non-responsive. DALY: It wasn't opened? Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 6 of 20 Pages PETERKIN: It was not opened at that time because it was non-responsive. So my second point is that the correct procedure did not occur. What should have happened is that JAL should have been awarded this bid, or the contract. And then L & H should have filed a bid protest, arguing that they should not have been determined to be a non-responsive bidder. But somehow after bid opening there was some determination made, perhaps by County Counsel, and the award was not given to the lowest responsive bidder. A determination was made without a bid protest to give it to L & H. LUKE: Were you at the bid opening? PETERKIN: I was not. LUKE: So, you aren't quite sure whether their bid was opened or not, because there seems to be some disagreement, which I'm sure will be testified to. JOE LEVESQUE: I wasn't there, either, but I believe that the bid was opened but not read because it was missing part of the documentation. PETERKIN: Perhaps I misspoke; but as I understand it, Timm Schimke from the Department of Solid Waste specifically said it was non-responsive because it didn't include all of the documents, as required; specifically addendum #2. At that point, I think the County under the rules governing them needed to award the contract, or given a notice of intent to award, to JAL. Then, if L & H Grading decided to file a protest, then they could. That procedure didn't occur. That's the probably the main reason we are here this morning. There was only $100 difference in the bids. What concerns us is the process, and that all of the bidders should be on an even playing field. In public bidding law the rules are strictly enforced, particularly regarding the contract documents. Now, if this was before ODOT or the Comptroller General in a federal contract, I don't think there would be a question that JAL would be awarded the contract. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 7 of 20 Pages Because the standard of procedure with the federal government and state agencies is that if you don't comply with the rules, particularly with the contract documents, you are non-responsive. That's exactly what your documents say. Paragraph 17 is quite specific. One final point and I will conclude. If the County wants to adopt a more liberal standard somewhat consistent with the JAL v. Friedman case, then the documents to bidders should so state. But they do not. And when the documents are clear and specific of what is required, then I think that the County should comply with that requirement and should award this contract to JAL. Thank you. JIM BECK: I'm the owner of L & H Grading. My story won't be so long. I guess I screwed up and didn't do the cut and paste that was asked for in the bidding process, to physically cut one page out and paste another one in. We didn't even receive addendum #3 by mail until the day after the bid opening. LUKE: We're talking about addendum #2. BECK: Yes, sir, you're correct. Addendum #2 is where we screwed up. We didn't cut and paste on that one. What I would say in my defense is that we acknowledged — and I believe that's always the intent — that we received addendum # 1, #2 and #3, and we clearly wrote that on the bid envelope. As the gentleman was explaining as far as ODOT procedures go, they are pretty much the standard in the state of Oregon. In their bid form, there's one more little line that gives you a place to acknowledge receipt of addendums. We couldn't find that page in this set of bidding documents. So we quickly wrote it on the front of our envelope, to acknowledge that we did receive these addendums. Other than that, as far as the cut and paste part, we missed that part on addendum #2. DEWOLF: I thought you just said that you didn't get addendum #3 until after they'd been opened. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 8 of 20 Pages BECK: The hard copy. We had a phone call from our office and got a fax. So we had them read it to us, and it said that the time to complete the work was extended to 45 days. And we had based our bid on doing it in 30 days, and that was fine. That wouldn't have changed our numbers. DALY: So you wrote addendum #2 on the outside of your bid envelope, but didn't include the document in the bid itself. BECK: We didn't paste, it, no. And we actually didn't get addendum #2 in hard copy until after the bid opening. We could have put the fax copy in there. That's really all I have to say in my defense. LAUREL HARRIS: I'm Laurel Harris, with JAL Construction. I would like to make a couple of comments with regard to the way the faxes and addendums did come in. I'm the one who is responsible for reviewing them, just as I would with an ODOT bid. In this case, we did have all three addendums come in as fax copies. The thing that is critical here is that on addendum #2 it was felt it was critical enough that the Solid Waste Department called us to verify that we did have it. All three addendums did come via the mail, but they all came by fax, too. Evidently addendum #2 was considered critical in the bid package and we got called on it. We included all documents. In the case of ODOT, as clarification, we also receive ODOT faxes on the very last day for notification. We would be required to note that as well. It is not imperative that it is received via the mail. TIMM SCHIMKE: I'm Director of Solid Waste. Just to clarify, our addendums are typically a cover sheet instructing the contractor to remove a certain page and replace it with an amended page. When I opened the contract documents I quickly flip through, looking for bid bonds and these addendums. There were a number of responses where it wasn't readily evident it was there, and I set those aside. But I did announce at the bid opening that I would be further reviewing them to make sure that I didn't miss something. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 9 of 20 Pages On further review, I found a number of contractors had done the cut and paste; they had removed the old pages and inserted the amended pages. I had to flip through the individual page sections to find whether the contracts were in compliance. So there were a number of bids that I initially set aside, but then on further review accepted as complete, and included them in the process. DEWOLF: Did you then accept L & H's as complete and put it back in the process at that point, with the others? SCHIMKE: I guess with L & H I did find evidence that two of the three addendums were included. And went to Legal Counsel to find out what to do next. His review of that indicated, as we said in our presentation when we recommended the intent to award to L & H, that not having that page inserted did not constitute substantial incompleteness. DEWOLF: They did acknowledge on their envelope that they had received the addendums? SCHIMKE: They did. In fact, this is their bid packet with their documents and their bonds and numbers. They have written addendums #l, 3 and 3 right there. DALY: How many other people forgot to put in their addendums? SCHIMKE: There were three others that I set aside and subsequently accepted. DALY: Was L &H the only one that didn't put it in? SCHIMKE: Red Cloud Construction submitted a bid, but all they submitted was the bid tab sheet and the bond. They didn't include any of the other contract documents. So that bid remained rejected. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 10 of 20 Pages DALY: Okay, but it was rejected because they didn't submit all of the other contract documents. SCHIMKE: That's right. LUKE: Legal Counsel, evidently you advised Timm on this. Could you give us some legal reasoning? MARK PILLIOD: The bottom line for Timm and really for the Board was that you can stand on the language in the contract bid package that says you have to include each element in order for it to be a complete and responsive bid; or you can acknowledge that in this case the requirements are substantially complied with and do not go to the price, quality or quantity of work to be obtained. And, frankly, it would be at a lower bid price. DEWOLF: Is that all in the bid documents? Do we have that authority? PILLIOD: It was referred to today. The County has the right to waive irregularities. In this case, it would be the attachment of a copy or fax version of addendum #2. DEWOLF: I want to make sure that I understand. My understanding is that all that addendum #2 does is that instead of having thirty days to complete the work, it extends out to forty-five days. SCHIMKE: That's correct. DEWOLF: So even if I didn't know that or acknowledge that, the only thing it does is work in my favor, because it gives me two extra weeks to complete the work. PILLIOD: That's right. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 11 of 20 Pages DEWOLF: So the only thing that could do is maybe even lower the cost further, because with two extra weeks maybe I don't have to pay anyone overtime or work weekends or whatever. SCHIMKE: That was my thought process as well. If we were shortening the contract time, which you would assume would result in higher bid prices to put on extra men and equipment, and that page was missing, we'd probably consider that to be a pretty substantial fault. But as it was, this extension apparently would not harm us. DEWOLF: They did acknowledge it on the document; they just didn't trade the pages. SCHIMKE: That's correct. LUKE: In an ideal world, you have everyone at a pre-bid meeting, and you hand out the completed contract that you don't have to do any addendums to, and you answer everyone's questions there. Then everyone has a level playing field. We're not there. We have addendums. And in a perfect world, you'd bring everyone in and hand them the addendums. What is the reasoning to include all of the documents with the bid? SCHIMKE: I believe that the intent is that we know when we are responding to their bid number, that they have all of the information that we've given out and it's all been incorporated into that number. That way we avoid the possibility that somewhere in the middle of the project the contractor coming back for extra money because he wasn't aware of something that might have come out in an addendum. DEWOLF: So what you are relying on in your advice is the fact here the only change is giving more time to complete the work. It doesn't change anything else about the project. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 12 of 20 Pages SCHIMKE: Yes. MIKE MAIER: What kind of situations would come into play where we would waive something besides this? Why is that language in there, that the County has the option to waive any portion of the bid requirements? PILLIOD: The language is there in order to give the County the opportunity to take the best price. Now, the difference here is nominal, but imagine a situation in which the differential was much more. It depends on whether the amount represents an indication that the party misunderstood the purpose of the contract. It would be perhaps some indication of a mistake in bid. But if there was a fairly healthy discrepancy between the first and second low bids, and one was technically deficient but the bidder nonetheless was capable of performance at a significantly lower price to the County, obviously we would want to be able to capture and utilize that savings for the public. MAIER: Maybe my question should go to Mr. Peterkin, because I got the impression he was testifying that there really isn't any option the County has to use that language. PILLIOD: Perhaps that is more argument than testimony. MAIER: But I suspect it is in there for these things that are better for the County. 11O ' If I am interpreting this wrong, please tell me. Did you base your advice to Timm to accept this bid on the completion time? If they are going to do it, fine. It doesn't hurt us; it's probably better for us. And they did acknowledge the receipt of the addendums on their bid. Is that where you're coming from? Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 13 of 20 Pages PILLIOD: Actually, Timm didn't mention to me the fact that they had acknowledged receipt of them on their bid package. I didn't know that. But it was based on what Commissioner DeWolf said earlier, and I think it's true, that if anything this addenda works in the County's favor. The fact that it may not have been included suggests that it actually works in the County's favor. I would submit that the addenda become part of the contract nonetheless, even though it was not attached as part of the package. PETERKIN: To the administration question, I'm here in part to define what is considered irregular. Contract documents are substantial. If in the bid proposal there was a line item for the bidder to specify a cost per foot and they put down per meter, that can be adjusted. That is discretionary. To make this point more clear, let's assume that the bidder filled out the old bid bond; is that substantial. Where do you draw the line? It becomes part of the contract. DEWOLF: It becomes part of the bid. PETERKIN: It becomes part of the contract after it is drawn. At the bid opening, they are trying to establish a meeting of the minds to make sure everyone is on the same page. This can only happen if you adhere to the rule that all contract documents are to be included. Anything less than that will result in protests. Either the documents are returned as required or they are considered non-responsive. Also, we're concerned that a decision as to whether a bid is responsive should come before the bid opening and not after. If it's afterwards, it's almost like you are bid s hopping. It doesn't seem right that you can ignore some things and not others. We are here to say the procedure should be clarified. DEWOLF: What turns this for me is that on the envelope they acknowledged the addendum. To me that sounds like an irregularity. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 14 of 20 Pages PETERKIN: The information about the envelope is news to us. We hadn't seen that. That is closer to an irregularity. However, it should not matter if it is a benefit to the contractor. The idea is that all of the conditions are met. In contract law, an offeror can always specify the method or manner of acceptance. This was specifically designated. You shouldn't be able to make some reference on the envelope because that doesn't meet the requirements. When the County says that it is to be done in a certain way, there's a reason, and also a reason for the addendum. It is a closer question with the envelope, but still doesn't comply. DALY: What if they had acknowledged all three addenda on the envelope, but didn't include them? SCHIMKE: I would ask Legal Counsel. JOE LEVESQUE: I think the County should go by the strictest specifications. ODOT would have put it out automatically. You should go by the letter of the law. The intent of the addendum is that it will become a part of the contract, and you would avoid conflict by going by the letter of the law. We don't want to protest, but this should have been rejected. LUKE: Did you at any time reject the L & H bid? SCHIMKE: I set it aside so I could review it and a few others. I wanted to make sure the documents were there and I wasn't overlooking them. JAY BECK: I turned in the bid for L & H. There was no place to acknowledge the receipt of the addendum. In our opinion, this was simply an irregularity. Being no further testimony offered, Chair Daly closed the hearing. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 15 of 20 Pages LUKE: The process is important in public contracting. There has to be some assurance that rules are followed. However, things are never perfect. Price is important, but the process should be followed. I believe that Timm Schimke followed the process; he made a decision to look at the documents a little closer. There's no question there were three addendums and they received them. I will uphold this decision. DEWOLF: Legal Counsel and I talked about this issue, but I didn't completely buy into it and was torn. The thing that turns it for me is the acknowledgement on the envelope. Without that I would vote the other way. This does appear to be an irregularity, I will support leaving the contract with L & H. DALY: I would have voted the other way. I believe our contracts are specific and everything should be considered. Deviation from that opens a can of worms. DEWOLF: I don't think we are deviating. This is the equivalent of misspelled words or other irregularities. These addenda were acknowledged and they will abide by the contract. PETERKIN: Could you open the hearing again for one more comment? DEWOLF: I'm okay with that. LUKE: I object; I think we need to move forward. PETERKIN: I don't want to bring this to Circuit Court. I'd like to avoid litigation. If you go with someone writing addendum 1, 2 and 3 on the face of the bid, if they don't include the addendum there could be a dispute on what the addendum actually states. That creates a controversy that the bid process is designed to avoid. If this turns on them writing on the front of the document, that is not sufficient unless you know they are aware of what the addendum says. It is not specific and there is no meeting of the minds. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 16 of 20 Pages LUKE: I object to reopening the hearing. I didn't base my decision on the writing on the document. The addendum benefits the County, and doesn't substantially affect the overall agreement. DEWOLF: The reality is that we have to make these judgments. Commissioner Luke is right in that it doesn't change the dollar amount but simply gives the contractor some more time. That means the amount could end up being even lower. No further testimony was given. LUKE: Move that the appeal of the intent to award the contract be denied, and an award be issued in accordance with the bid submitted by the prevailing bidder. DALY: I firmly believe that Circuit Court will overturn this. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes no. (Split vote: DeWolf & Luke, yes; Daly, no.) LUKE: I have a question of staff. Are you satisfied that our contracting documents are adequate? Or should we handle them like ODOT does? PILLIOD: Based on my discussions with Timm Schimke after the bids had been opened, Timm said he observes the same process used by Road. I haven't looked specifically at their process with an eye to policies and practices that would mirror ODOT regarding issuing addenda. What often happens when there is not a lot of time available, the time frame is extended for issuing bids. Again, I don't attend the opening of bids or handle the bid process. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 17 of 20 Pages Regardless of this incident, we are currently working with departments on refining the contacting process. We can't always follow the State's model rules. Often decisions have to be made at the local level. Contracting rules will be changing significantly on March 1, but I don't know how that will impact what the County does. There is no perfect world in contracting. We are tied to some of the model rules, and we will need to decide whether to continue following some of them and adopting others. There is no language that is automatic for some of the rules. DALY: I have a problem with contracting language that says "shall", which means without deviation, but another clause may allow us to waive things. This needs to be specific so everyone will know where they stand. PETERKIN: I want to compliment the Board on the good discussion taking place today. We met the problem, and you kept an open mind on how it should work. We appreciate it. We will offer comments should your counsel decide to adopt other forms. I'd like to be a part of the process if you desire. We had a fair hearing today and can live with the results. But we'd like to see the process clarified in order to put everyone on the same footing. DEWOLF: We always like to refine the process, and appreciate it when folks help us. I think we are following the rules and you may feel we're bending them, but things can't always be black and white. LUKE: My objection was to allowing testimony after the hearing had been closed. Discussion is always good, but we shouldn't set a precedence of allowing the reopening of hearings after they are closed. 8. Before the Board was Consideration of Signature of a Letter Reappointing Jim Diegel as Deschutes County's Representative on the Redmond Airport Commission, through December 31, 2008. DEWOLF: Move approval. LUKE: Second. Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 18 of 20 Pages VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 9. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $11,174.78 (three weeks). LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $2,987.45 (three weeks). LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 11. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $5,511,163.64 (three weeks). Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 19 of 20 Pages LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. 12. ADDITIONS TO THE AGENDA Commissioner DeWolf noted that the Cultural Trust grant request for disbursements requires his signature as the County's fiscal agent until a 501(3)(c) is established. LUKE: Move approval. DEWOLF: Second. VOTE: DEWOLF: Yes. LUKE: Yes. DALY: Chair votes yes. Being no further items brought before the Board, Chair Daly adjourned the meeting at 11:30 a.m. DATED this 22"d Day of November 2004 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Re - 962&&�,Fvjainussioner Minutes of Board of Commissioners' Meeting Monday, November 22, 2004 Page 20 of 20 Pages