HomeMy WebLinkAboutMay 24, 2011 Special MeetingBOARD OF COUNTY COMMISSIONERS
ST. LUCIE COUNTY, FLORIDA
SPECIAL MEETING
Date: May 24,2011 Convened: 9:05 a.m.
Adjourned: 10:09 a.m.
Commissioners Present: Chris Craft, Chairman, Chris Dzadovsky, Paula A. Lewis, Frannie
Hutchinson, Tod Mowery (absent)
Others Present: Faye Outlaw, County Administrator, Lee Ann Lowery, Asst. County
Administrator, Dan McIntyre, County Attorney, Heather Lueke, Asst. County Attorney, Debra
Brisson, Parks and Recreation Director, Roger Shinn, Central Services Manager, Millie Delgado-
Feliciano, Deputy Clerk
PARKS, RECREATION AND FACILITIES
Bid Protest -Bid # 11-023 Renovation of Floors 3 and 4 of the Old Clerk of Court Building
The Parks and Recreation Director provided the following background information.
In September 2004, during Hurricanes Frances and Jeanne, the (Old) Clerk of Court building
experienced significant water intrusion primarily through the windows. Damage was to
extensive that all four floors of the building had to be gutted. Working in conjunction with
FEMA, in January 2007, the County proceeded with renovation of the 1St and 2"d floors of the
building. In May 2009, renovations of the 1St and 2"d floors were completed.
In March 2011, the Federal Emergency Management Agency (FEMA) stated that it would
reimburse St. Lucie County for the cost of completion of interior renovations to floors one, two
and three and four of the Old Clerk of Court building, less any insurance reimbursement, if the
County completes the construction of floors three and four by December 31, 2011. On April 12,
2011, the Board approved Resolution No. 11-081, declaring this project an emergency and
authorizing the expedited solicitation of bids.
On April 27, 2011, an Invitation to Bid was issued for Bid No. 11-023- Renovation of Floors 3 & 4
of the Old Clerk of Court building. Bids were due on May 10, 2011. Paul Jacquin & Sons, Inc.,
(hereafter referred to as "Jacquin") of Ft. Pierce was the lowest bidder at $1,980,000. Compass
Construction (hereafter referred to as "Compass") of Okeechobee was the second lowest
bidder at $1,996,044. (A difference of $16,044.00 from the low bidder). David Brooks
Enterprises, Inc., (hereafter referred to as "Brooks") of Palm Beach Gardens was the third
lowest bidder at $2,190,500.00 (a difference of $210,500.00 from the low bidder).
On Tuesday, May 17, 2011, the Board of County Commissioners approved award to Jacquin
conditioned on Jacquin executing the county contract form, as sent out to all bidders in
Addendum # 3, within the time required by the bid and without modification and should
Jacquin refuse to execute the county contract form without modification, the Board approved
award to the next responsible, responsive bidder (Exhibit A).
At noon on Tuesday, May 17th, Brooks emailed to the County Administrator a formal bid protest
of the award to Jacquin (Exhibit B). On Thursday, may 19th, the County Administrator formally
denied Brooks' protest (Exhibit C). On Friday, May 20th Brooks, through counsel, filed a "Bid
Protest, Notice of Appeal, and Demand for Administrative Review (Exhibit D).
Section 11.3 of the Purchasing Manual requires that the County shall not proceed further with
the award of a contract pending resolution of a bid protest or the determination by the Board
that award of the contract must be made without further delay in order to protect the
1
substantial interests of the County. The execution of the contract for this project is therefore
on hold pending resolution of Brooks' bid protest.
The Assistant County Attorney addressed the Board and provided the following argument as
noted by Brooks.
Brooks raises two issues in his bid protest. First, that Jacquin's bid is non-responsive and it has
received a competitive advantage. Second, that Compass's bid is non-responsive and it is non-
responsible.
On page three of Jacquin's bid, the following language was included:
Please note Paul Jacquin & sons, Inc. may or may not agree to all terms and conditions
of the contract with St. Lucie County. The contract will be reviewed, modified and
agreed to by both parties prior to being executed (Exhibit E).
The Assistant County Attorney indicated the following:
As noted above, the Board approved the award of the contract to Jacquin conditioned on
Jacquin executing the county contract form, as sent out to all bidders in Addendum # 3, within
the time required by the bid and without modification. Therefore, if Jacquin executes the
county contract form, it will essentially waive the language it inserted into the bid, language
which the County never accepted. Jacquin will have been given the same opportunity as any
other bidder: the opportunity to sign the County's contract form as-is. Therefore, any
deviation of Jacquin's bid would be nonmaterial and Brooks' argument that Jacquin was
nonresponsive would be without merit.
Alternatively, if Jacquin refuses to execute the contract, it will be considered non-responsive
and the County will award to the next responsive, responsible bidder. By refusing to sign the
contract, Jacquin will be in breach of the bidding requirements, thereby triggering the liability
of its bid bond surety. Therefore, as has been explained to Jacquin and its counsel (Exhibit F), if
Jacquin refuses to execute the contract, the County has a right to make a claim on Jacquin's bid
bond for the difference between Jacquin's bid and the bid of the successful bidder. Refusal to
sign a County contract is also a cause for Debarment under the Purchasing Manual. Therefore,
Brooks' argument that Jacquin would suffer no consequences for refusing to execute the
contract is without merit.
The Assistant County Attorney indicated there is a lose end that being they are not sure if Mr.
Jacquin can sign and bond the contract. If they knew the answer they would be able to move
forward. This would solve quite a bit of the problem. A construction bond is required and he
must provide insurance execute the contract and bond the job and to date they do not know if
any of things will happen. She has been trying to work with Mr. Jacquin and his attorney and
she informed them it was imperative that they had a decision this. morning if they were going to
execute the contract and she has not received a reply from Mr. Jacquin or his attorney.
Mr. Jacquin indicated they are under review at this point and he has been advised not to
comment on this and he does not wish to say anything that maybe used by Mr. Brooks.
Com. Dzadovsky questioned if he in fact had the intent to sign the contract.
Mr. Jacquin gave an affirmative by providing a head nod.
The Assistant County Attorney addressed Compass' Bid and indicated the following:
Brooks argues that Compass is nonresponsive because it used a different bid bond form than
the one provided by the County. Compass submitted an A1A Bid Bond Form (Exhibit G). The
terms of this form are virtually identical to the terms of the County's bid form (Exhibit H). Any
deviations between these two forms are minor and technical in nature and would not give
2
Compass any unfair advantage not enjoyed by the other bidders. It would not render Compass'
bid nonresponsive.
Brooks also argues that Compass is nonresponsible because it has a "significant lack of
experience with the type of construction needed to build the Project." Compass' project
manager for this project worked for Brooks and was its project manager during the
construction of the St. Lucie County Clerk of Court building and during the renovations of Floors
1 and 2 of the Old Clerk of Court Building. Brooks' argument is therefore without merit.
She indicated they did not have prequalification requirements for this project that they must
have a certain level of experience in this type of work. She also received a letter from Mr.
Brooks attorney which raised a couple of issues, one being that both bidders did not sign their
bid documents as required. She does not believed this to be factual: She also reviewed case
laws presented and indicated she believed they did not apply to what Mr. Brooks was
protesting.
Staff recommends: denial of the bid protest of David Brooks Enterprises, Inc. and permission
for staff to proceed with execution of the contract for the Old Clerk of Court building floors 3
and 4 as previously approved by the Board on May 17, 2011.
Mr. Adam Linkhorst, Linkhorst & Hockin, P.A. attorney for Mr. Brooks addressed the Board and
stated he believed Brook's bid should be the one considered as the lowest, most responsive,
responsible bidder and should be awarded the project. He advised the Board why they felt
Jacquin's bid should be considered non-responsive and summarized what was indicated in
Exhibit D. He also cited case law he had sent to the county's Assistant Attorney with regard to
deviations.
In recapping his comments he indicated that Jacquins did the following:
Improperly included conditional language
Changed bid form in violation of the bid instructions
Failed to sign bid in violation of the county's purchasing manual and bid instructions
Failed to submit the bid bond in the required amount
He believes these errors are not immaterial and should not be considered waivable by St. Lucie
County.
Mr. Linkhorst proceeded to addressed Compass' not being a responsive or responsible bidder
as provided in Exhibit D also.
Com. Craft questioned if they would determine a company as a nonresponsible bidder because
they did not have prior experience in remodeling and building.
The Assistant County Attorney stated they would not.
Mr. Linkhorst stated if it was not important, the question would not have been asked.
Mr. Linkhorst stated in conclusion the questions are why did Jacquin add the language if it did
not mean something to them? He believes Compass' bid should be considered nonresponsive
and nonresponsible, because they did not sign the bid in violation of the purchasing manual and
the bid documents, did not properly tally its bid, did not answer all the qualifications properly
or answers the degree of responsibility.
He respectfully submitted that David Brooks Enterprises is the lowest most responsive,
responsible bidder and should be awarded the bid.
Com. Dzadovsky asked if it was his position that Brooks has all employees under roof or do they
use sub-contractors.
3
Mr. Linkhorst stated Brooks will contract out specialty work contractors. What he does have is
a full time project manager, full time project coordinator all with building experience and
infrastructure.
Com. Dzadovsky asked if all contractors in the State are required to be licensed.
The Assistant County Attorney indicated yes.
Com. Dzadovsky indicated his issue was mute and requested Mr. Linkhorst provide case laws on
such issues.
Mr. Linkhorst provided case law issues as requested by Com. Dzadovsky.
Com. Craft requested information on or if any of these case laws differ from what is being
presented today.
The Assistant County Attorney indicated the case laws presented by Mr. Linkhorst are state
division of administrative hearing and they are not binding to the county. The language placed
by Mr. Jacquin was not a counter offer, she believes it was giving them a heads up that he may
or may not be able to sign the contact as is. She stated they were telling him that he was the
low bidder and they would award to him only if he was going to sign the contract as is. Because
he used the words "maybe "they could not bounce him for being non responsive because he
did not indicate he was not going to sign the contract, he said he did not know
Com. Hutchinson stated she believed every bidder has that option, he just stated it.
The Assistant County Attorney stated this was true; however, they would have to be willing to
accept the consequences of being debarred for refusing to sign a contract or pay the difference
between the first and second low bidder.
Mr. Linkhorst addressed the principals of contract formation. The simple fact is the county has
rules that states bids are not to be altered. Jacquin typed this language below and if someone
had not noticed it, it may have slipped through. All bidders knew the rules of the contracts that
were set.
Mr. Daniel Hampton representing Compass Construction addressed the Board and advised
them he has confidence they can provide the bond and he is a licensed contractor.
Com. Dzadovsky addressed the monetary difference in the bond amount.
The Assistant County Attorney stated the difference between the amount in Jacquin's bid bond
and the total amount of his bid, what he did not count in his bid bond was the amount of his
construction bond. The others put in 5% of the total, where Mr. Jacquin placed in an actual
figure. Staff is not sure what the 5% indicates.
Com. Dzadovsky asked Mr. Jacquin what his intent was in the change of the language.
Mr. Jacquin indicated that in the contract documents there is a clause where it states they can
fire the contractor without cause and they would be responsible for the additional cost incurred
of the other contractor coming in and this was their concern. He stated they would be signing
the contract as he indicated earlier and it is not an issue any more and they will be moving
forward. The clause changed, when they did prior projects this clause was not in the contract
and this was their concern.
Mr. Jacquin expressed his apologies for this issue getting to this point.
4
It was moved by Com. Hutchinson, seconded by Com. Lewis, to deny the bid protest, and; upon
roll call, motion carried unanimously.
Com. Craft addressed a request from staff to deal with the June informal meeting.
It was the consensus of the Board to have the opportunity to review their calendars and
provide the information bye-mail.
There being no further business to be brought before the Board, the meeting was adjourned.
Chairman
Clerk of the Circuit Court
5