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HomeMy WebLinkAboutItem VI (A) - Award of Clark Road Construction Contract / AGENDA 10-1-91 Item VI A *):Of cocJames W. Shira P.E. CITY ENGINEER/UTILITIES DIRECTOR 150 N. LAKESHORE DRIVE OCOEE, FLORIDA 34761 (407)656-2322 DATE: September 25, 1991 TO: The Honorable Mayor and Board of City Commissioners FROM: James W. Shira, P. E City Engineer/Utiliti Director SUBJECT: Award of Clark Road Construction Contract On August 12, 1991 bids for the construction of Clark Road were opened and read aloud. Twelve bids were received and ranged from a high bid submitted by Asphalt Pavers, Inc. in the amount of $5, 063, 637.78 to a low bid submitted by S & E Contractors in the amount of $3 , 993, 962 . 51. The engineer's estimate for this job was $5,254, 004 .82 . The references of the low bidder were checked and all responses were favorable. Several issues have been raised by firms interested in this job regarding the acceptability of the apparent low bid submitted by S & E Contractors. The attached memo from Ron Schirtzer addresses these issues, and concludes that awarding to the low bidder is appropriate. I recommend that the City Commission authorize the Mayor and City Clerk to execute a contract with S & E Contractors in the amount of $3,993,962.51 for the construction of Clark Road. JWS/jr Attachment THE PRIDE OF WEST ORANGE FOLEY & LARDNER I II NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801-2386 TELEPHONE (407) 423-7656 FACSIMILE (407) 648-1743 TAMPA, FLORIDA MAILING ADDRESS: MILWAUKEE, WISCONSIN JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN TALLAHASSEE, FLORIDA ORLANDO, FL 32802-2193 WASHINGTON, D.C. WEST PALM BEACH, FLORIDA ALEXANDRIA, VIRGINIA MEMORANDUM ANNAPOLIS, MARYLAND CHICAGO, ILLINOIS TO: Jim Shira, City Engineer FROM: Ronald M. Schirtzer, Assistant City Attorney THROUGH: Paul E. Rosenthal, City Attorney DATE: September 18, 1991 SUBJECT: Protest of Clark Road Project The City has received protests from Bumby & Stimpson, the third low bidder on the above referenced project, and The Conduit Foundation, the fourth low bidder on the above referenced project, challenging the right of the City to award the project to either the low bidder, S & E Construction, or the second low bidder, Prince Contracting Co. The basis for both protests is the failure of S & E Construction and Prince Contracting Co. to include with their bids lists of subcontractors and material suppliers who would be performing work on the project. As originally prepared by PEC, the bid document for the Clark Road project required the bidders to submit lists of subcontractors and material suppliers with their bids. In our review of the documents before release to interested bidders, we suggested the removal of this requirement. Since requiring a list makes compliance with the requirement a material element of the bid under Florida statutes and case law, we felt that removal of this requirement would eliminate potential bid protests which might result from bidders providing incomplete lists or listing unqualified firms to perform work. You concurred with this recommendation. Following the decision to remove the requirement to list subcontractors and suppliers, Section 10. 1 of the Instructions to Bidder was modified to indicate that lists of subcontractors and suppliers would only be supplied by the successful bidder within seven (7) days of a request for such list from the City. Additionally, references to a list of subcontr- d 101 -1- D r---- SEP 9 Memorandum to Jim Shira September 18, 1991 Page 2 suppliers was eliminated from Section 12.2 of the Instructions to Bidders and the Bid Form. Unfortunately, Section 11.8 of the Instructions to Bidders indicating that the names of subcontractors and material suppliers should be included on the Bid Form was erroneously left in the Bid Documents. Since the intent of the documents is to not have bidders list their subcontractors and material suppliers, it is clear that S & E Contractors and Prince Contracting Co. cannot be disqualified for failure to provide such lists. No case law that we could find directly addresses the issue of whether the inconsistency in the documents creates a material disadvantage for Bumby & Stimpson requiring the rejection of all bids. Existing case law does however give the City the discretion to waive irregularities unless such waiver is arbitrary or capricious or is done to avoid competitive bidding requirements. It is significant that ten of the twelve bidders for this project did not provide lists of subcontractors and suppliers. The Conduit Foundation, while providing a list, indicated that it was a proposed list subject to modification. Additionally, at the Pre-Bid Conference, we went over the bid requirements in great detail and no reference was made to any list of subcontractors and suppliers. Finally, none of the bidders, including Bumby & Stimpson or The Conduit Foundation, raised any questions regarding subcontractor and supplier lists or brought the inconsistency in the documents to the attention of the City or PEC during the pre-bid phase. In light of the foregoing, it is our opinion that the inconsistency in the documents regarding listing of subcontractors and suppliers does not create a material disadvantage for Bumby & Stimpson or any other bidder. We believe the intent to only require such information from the successful bidder after the opening of bids is clear, as evidenced by the large percentage of bidders that did not submit this information with their bids. Any ambiguity could have been cleared up by a request for clarification to the City prior to the opening of bids. Accordingly, we do not believe that the City is required to throw out all bids or that any challenge to an award to the low bidder will be successful. Please contact me if you have any questions regarding these matters. Additionally, please let me know if you would -2- Memorandum to Jim Shira September 18, 1991 Page 3 like me to forward copies of this memorandum to the interested bidders and their attorneys prior to the City Commission's consideration of the bids on October 1, 1991. (1"---"A"-`4 onald M. Schirtzer Assistant City Atto e cc: Mr. Ellis Shapiro Paul E. Rosenthal, Esq. -3- s1Ili , BUMBY & STIMPSON , Inc . _ ' General Contractors AP- e.;- "` i ORLANDO, FLORIDA 32802-2608 407/859 -4900 September 4 , 1991 CERTIFIED MAIL James E. Shira , P.E. _ City Engineer / Utilities Director n r City of Ocoee [ L\_.`':' Tp, SEP \ 1 \ 150 North Lakeshore Drive 1 , 1= Ocoee, Florida 32761 --5-199i 5 1991 RE: Sealed Bid - Bid No. 150 Clark Road Improvements Bid Date - August 12, 1991 Dear Mr . Shira: In regard to the bids received by the City of Ocoee on the above referenced project, this is to inform you of our knowledge of discre- pancies in the bid documents of the low and second low bidders, namely , S & E Contractors and Prince Contracting Company , respectively . We have been informed by various subcontractors and material suppliers that neither of the low bidders named above listed subcontractors or material suppliers as specifically required in the bidding documents, namely paragraph 11 , subparagraph 11 .8 of the Instruction to Bidders, pages 00100-1 through 00100-13 of the "Project Manual for Clark Road" dated June 1991 , as prepared by Professional Engineering Consultants, Inc. of Orlando, Florida. Upon examination of the bidding documents at your office on September 3, 1991 by two representatives of Bumby & Stimpson , John B. Allen and Eric Burt, we have determined that the subject subcontractor and material supplier listings were, in fact, omitted by the bidders stated above. For a bidder to be able to omit the required documentation relating to subcontractors and materialmen , a situation is created that allows a " low bidder" to exert a more powerful influence on various suppliers to compromise their pricing far beyond the levels previously offered to the bidders competitors. By not complying with the requirement of subcontractor and materialmen disclosure, a bidder can " low-ball " his bid with the intention of subsequent market negotiation . This activity is contrary to the requirements of the " Instructions to Bidders" for this project. It is our contention , that if the low or second low bidders were to be awarded the job, they will , in fact, have an unfair advantage in negotiating with subcontractors and materialmen after the bid opening , an advantage not afforded the bidders who complied with your requirements and properly submitted the appropriate listings with their bids. We are aware of several instances where this activity has already occurred on this project since bid day . P . O . BOX 2608 • LANDSTREET 'ROAD • Page 2 City Engineer / Utilities Director City of Ocoee September 4, 1991 Therefore, we contend that the bids submitted by S & E Constructors and Prince Contracting are irregular and nonresponsive and that the bid submitted by our firm is the lowest responsive bid , and insist that the Clark Road Project be awarded to Bumby & Stimpson , Inc. without requiring further action from us. Your earliest attention and reply to this letter will be appreciated , as was the prompt scheduling of our bid review and courteous treatment by your staff to our bid review representatives. Very truly yours, BUMBY & STIIMPSON, INC. r .hn F. Stimpson , Jr. President cc: Mr. William Harmening Mr. Robert Campbell , P.E. , Professional Engineering Consultants Go��V�T&FpG�O9 Z r' 2 O p ♦ 0 R p� CONTRACTORS&ENGINEERS 7232 Sand Lake Road•Suite 302• Orlando,FL 32819•(407)345-8031 • FAX:(407)345-8087 September 4 , 1991 James E. Shira, P.E. City Engineer/Utilities Director City of Ocoee 150 North Lakeshore Drive Ocoee, FL 32761 Re: Clark Road Improvements Bid August 12 , 1991 Dear Mr. Shira: As discussed by telephone this week regarding the above referenced project, our review of bids submitted by the two lowest bidders (S & E Contractors and Prince Contracting Company) would indicate they did not include a list of Subcontractors or material suppliers with their bid. The Instruction for Bidders Section of the Project Specifications clearly state that Contractors were to submit a list of Subcontractor and material suppliers with their bid. We believe therefore, that any bid submitted not containing said lists must be considered irregular and be rejected. Our belief is that an unfair competitive edge relative to price negotiations following the bid process would be afforded to any contractor not submitting such lists. Your own statements at the Pre-bid Conference stating the "high profile" nature of this project certainly would prohibit an award to any contractor that has left out such an important part of its proposal. CSE U 7E r. SEP 5 i99 33 Rock Hill Road 272 Route 46 284 S.University Drive 256 Wood Lane (AA" Bala Cynwyd,PA 19004 Elmwood Park,NJ 07407 Plantation,FL 33324 Langhorne,PA 19047 . , (215)668-8400 (201)794-3300 (305)475-1123 (215)673-6655 FAX:(215)668-9134 FAX:(201)794-8476 FAX:(305)370-0721 FAX:(215)752-5438 Page 2 James E. Shira, P.E. September 4, 1991 Our hope is that you consider this matter carefully and award this project expediently to a responsive low bidder. Sincerely, THE CONDUIT AND FOUNDATION CORPORATION David A. Erickson DAE: jd cc: Ellis Shapiro, City Manager Robert Campbell, P.E. •AMERICAN DUCTILE IRON PIPE AMERICAN DUCTILE IRON PIPE •AMERICAN DUCTILE IRON AND CAST IRON FITTINGS •AMERICAN-DARLING VALVES O A DIVISION OF AMERICAN CAST IRON PIPE COMPANY AND HYDRANTS DISTRICT OFFICE•2301 MAITLAND CENTER PARKWAY,SUITE 430•MAITLAND.FLORIDA 32751 P.O.BOX 940310•MAITLAND,FLORIDA 32794-0310 TEL:407/660-8786•FAX:407/660-1851 C.E.HOGUE,MANAGER DEPOT&SALES OFFICE—POMPANO SUSAN BRAITHWAITE JERRY D.SMITH JOHN E.HAGELSKAMP GARY R.SPICE DONALD L.HUFFSTICKLER LABRIEL E. YNN VEENSCHOTENO September 16 , 1991 JOHN B.WALSH MARIJANE WISE Mr. James E. Shira Director of Utilities City of Ocoee 150 Lake Shore Dr. Ocoee, Florida 32761 Clark Road Improvements Bid: August 12 , 1991 Dear Mr. Shira: We have been advised that on the above bids , the two (2) low bidders failed to list material suppliers and sub-contractors that they would use in the performance of this contract. This omission is contrary to the bidding documents and as a result, is irrigular and the purpose of this letter to to ask that these two (2) bids be rejected. We have promoted for some time, to engineers and owners, that it would be to their benefit to include the listing of suppliers and sub-contractors in their proposal. This requirement allows suppliers and sub-contractors to quote the lowest possible price prior to bids to the contractors so that they, in turn, can submit the lowest possible prices to the owners. If this requirement is not included, there is a likelihood, particularly in todays economic environment, that the successful contractor could ask suppliers and sub-contractors to re-submit lower prices for their own financial benefit, not the owners . If these requirements are not followed, then the suppliers and sub-contractors may not submit their lowest prices prior to bids, but would be prepared to negotiate following bids. It would not be to the owners advantage to have this occur. Our position is not to be a reflection on the two (2) lowest bidders involved on your particular project, however, is a statement of philosophy that is very real in our industry. Jt District Sales Offices in Atlanta,Birmingham,Chicago,Dallas,Kansas City,Minneapolis,New York,Orlando,Pittsbu h,and Sacramento Depot Stocks in Birmingham,Dallas,Kansas City,Minneapolis,and Pompano Beach r A Y+ r n I do ask that you give this letter serious consideration and if you have any questions or should further information be required, please call me. Yours very truly, AMERICAN CA T IRON PIPE CO. C. E. Ho CEH/mew cc: Mr. Ellis Shapiro City Manager City of Ocoee 150 Lake Shore Dr Ocoee, Florida 32761 Mr. Tom Kelly Professional Engrg Consultants 200 E. Robinson St, Ste 1560 Orlando, Florida 32801