HomeMy WebLinkAboutSpecial Meeting 05-24-2011~~
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May 24, 2011
9:00 A.M.
SPECIAL MEETINQ
BOARD OF COUNTY COMMISSIONERS
AGENDA
WELCOME
ALL MEETINGS ARE TELEVISED.
ALL MEETINGS PROVIDED WITH WIRELESS INTERNET ACCESS FOR PUBLIC CONVENIENCE,
PLEASE TURN OFF ALL CELL PHONES AND PAGERS PRIOR TO ENTERING THE COMMISSION CHAMBERS,
PLEASE MUTE THE VOLUME ON ALL LAPTOPS AND PDAS WHILE IN USE IN THE COMMISSION CHAMBERS,
GENERAL RULES AND PROCEDURES -Attached is the agenda, which will determine the order of business conducted
at today's Board meeting.
CONSENT AGENDA -These items are considered routine and are enacted. by one motion. There will be no separate
discussion of these items unless a Commissioner so requests,
REGULAR AGENDA -Proclamations, Presentations, Public Hearings, and Department requests are items, which the
Commission will discuss individually, usually in the order listed on the agenda.
PUBLIC HEARINGS -These items may be heard on the first and third Tuesday at 6:00 P.M. or as soon thereafter as
possible, or on a second or fourth Tuesday, which begins at 9:00 A.M., then public hearings will be heard at 9:00 A.M. or
as soon thereafter as possible. These time designations are intended to indicate that an item will not be addressed for to
the listed time, The Chairman will open each public hearing and asks anyone wishing to speak to come forward, one at a
time. Comments will be limited to five minutes.
As a general rule, when issues are scheduled before the Commission under department request or public hearing, the
order of presentation is: (1) County staff presents the details of the Board item (2) Commissioners comment (3) if a public
hearing, the Chairman will ask for public comment, (4) further discussion and action by the board.
ADDRESSING THE COMMISSION -Please state your name and address, speaking clearly into the microphone. If you
have backup material, please have eight copies for distribution.
NON-AGENDA ITEMS -These items are presented by an individual Commissioner or staff as necessary at the conclusion
of the printed agenda,
PUBLIC COMMENT -Time is allotted at the beginning of each meeting for general public comment, Please limit
comments to five minutes.
DECORUM -Please be respectful of others' opinions.
MEETINGS -All Board meetings are open to the public and are held on the first and third Tuesdays of each month; the
first Tuesday at 6:00 P.M. and the third Tuesday at 9:00 A.M., unless otherwise advertised. ,Meetings are held in the
County Commission Chambers in the Roger Poitras Administration Annex at 2300 Virginia Ave., Ft. Pierce, FL 34982,
The Board schedules additional workshops throughout the year as necessary to accomplish their goals and commitments,
Notice is provided of these workshops. Assistive Listening Device is available to anyone with a hearing disability, Anyone
with a disability requiring accommodation to attend this meeting should contact the St. Lucie County Community Services
Director at (772) 462-1777 or TDD (772) 462-1428 at least forty-eight (48) hours prior to the meeting.
May 24, 2011
9:00 A. M.
BOARD OF COUNTY COMMISSIONERS
www. co. st-I u c i e.f I. u s
www.stlucieco.org
IllllCllllllllllflllllllilll~llililllllllllllllllll~li~lllllllllllillillillllill~lll(III11111111111111111111111111117t111~111i1111111(III(III(Illlllilllllllllll~l(If(Iilfllllllllllllllltlilihlllllllllliillillllll
Chris Craft, Chairman District No. 5
Chris Dzadovsky, Vice Chairman District No.1
Tod Mowery District No. 2
Paula A. Lewis District No. 3
Frannie Hutchinson District No. 4
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INVOCATION
II. PLEDGE OF ALLEGIANCE
REGULAR AGENDA
III. PARKS, RECREATION & FACILITIES
Bid Protest -Bid #11-023 -Renovation of Floors 3 & 4 of the Old Clerk of Court Building
Consider staff recommendation to approve to deny the bid protest and uphold the
decision to award Bid #11-023 -Renovation of Floors 3 & 4 of the Old Clerk of Court
Building to Paul Jacquin & Sons, Inc., as previously approved by the Board on May 17,
2011.
NOTICE: All Proceedings before this Board are electronically recorded, Any person who decides to appeal any action taken by the Board at
these meetings will need a record of the proceedings and for such purpose may need to ensure that a verbatim record of the proceedings is
made. Upon the request of any party to the proceedings, individuals testifying during a hearing will be sworn in, Any party to the proceedings
will be granted the opportunity to cross-examine any individual testifying during a hearing upon request, Anyone with a disability requiring
accommodation to attend this meeting should contact the St. Lucie County Community Services Director at (772) 462-1777 or TDD (772) 462-
1428 at least forty-eight (48) hours prior to the meeting.
ITEM NO. III
DATE: 05/24/11
AGENDA REQUEST .REGULAR (X)
PUBLIC HEARING ( )
LEG. ( )
QUASI-JD ( )
CONSENT ( )
TO: BOARD OF COUNTY COMMISSIONERS PRESENTED BY:
Debra Brisson
SUBMITTED BY: Parks, Recreation and Facilities Director
SUBJECT: Bid Protest -Bid #11-023 -Renovation of Floors 3 & 4 of the Old Clerk of Court
Building
BACKGROUND: See attached memorandum.
FUNDS AVAILABLE: N/A
PREVIOUS ACTION: N/A
RECOMMENDATION: Board approval to deny the bid protest and uphold the decision to award Bid #11-
023 -Renovation of Floors 3 & 4 of the Old Clerk of Court Building to Paul Jacquin
& Sons, Inc. as previously approved by the Board on May 17, 2011.
COMMISSION ACTION: CONCURRENCE:
( ) APPROVED ( ) DENIED
( ) OTHER
Faye W. Outlaw, MPA
County Administrator
Coordination/Si4natures
County Attorney (X) OMB Director (X) `~~
Daniel McIntyre Purchasing Marie Gouin
Desiree Cimino
Originating Dept. (X)
De ra Brisson
MEMORANDUM
TO: Board of County Commissioners ~~~
~C ~ .
FROM: Marie Gouin, Management and Budget Director ~'`°,
Debra Brisson, Parks, Recreation and Facilities Director
Cc: Faye Outlaw, County Administrator
DATE: May 24, 2011
SUBJECT: Bid Protest, Notice of Appeal, Demand for Administrative Review for Bid No. 11-
023 -Project: Renovation of Floors 3 & 4 of the Old Clerk of Courts Building
Backaround:
In September 2004, during Hurricanes Frances and Jeanne, the (Old) Clerk of Court building
experienced significant water intrusion primarily through the windows. Damage was so extensive that
all four (4) floors of the building had to be gutted. Working in conjunction with FEMA, in January
2007, the County proceeded with renovation of the 15` and 2"d floors of the building. In May 2009,
renovations of the 15' and 2"d floor 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 (1 ), two (2), three (3)
and four (4) of the Old Clerk of Court Building, less any insurance reimbursement, if the County
completes the reconstruction of floors three (3) and four (4) by December 31, 2011. On April 12,
2011, the Board approved Resolution 11-081, declaring this project an emergency and authorizing the
expedited solicitation of bids.
On April 17, 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.
(hereinafter referred to as "Jacquin") of Ft. Pierce was the lowest bidder at $1,980,000.00. Compass
Construction (hereinafter referred to as "Compass") of Okeechobee was the second lowest bidder at
$1,996,044.00 (a difference of $16,044.00 from the low bidder). David Brooks Enterprises, Inc.
(hereinafter 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 17`h, Brooks emailed to the County Administrator a formal bid protest of the
award to Jacquin (Exhibit "B"). On Thursday, May 19`h, the County Administrator formally denied
Brooks' bid 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 substantial interests of the
County. The execution of the contract for this project is therefore on hold pending resolution of
Brooks' bid protest.
Argument:
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.
Jacquin's Bid:
On page three of its bid, Jacquin included the following language:
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").
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 the 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.
Compass' Bid:
Brooks argues that Compass is nonresponsive because it used a different bid bond form than the one
provided by the County. Compass submitted an AIA Bid Bond Form (Exhibit "G"). The terms of this
form are virtually identical to the terms of the County's bid bond form (Exhibit "H"). Any deviations
between these hvo forms are minor and technical in nature and would not give Compass any unfair
advantage not enjoyed by the other bidders. It would not render Compass' bid non-responsive.
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 renovation of Floors 1 & 2 of the Old Clerk of Gourt Building. Brooks'
argument is therefore without merit.
Recommendation:
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 & 4, as
previously approved by the Board on May 17, 2011.
EXHIBIT
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DATE: 05/17/11
AGENDA REQUEST
PUBLIC HEARING ( )
LEG. ( )
QUASI-JD ( )
CONSENT (x }
TO:
SUBMITTED BY:
SUBJECT:
BACKGROUND:
FUNDS AVAILABLE:
BOARD OF COUNTY COMMISSIONERS
Parks, Recreation & Facilities
ITEM NO. VI-F3
Revised
REGULAR ( )
PRESENTED BY:
Debra Brisson
Director
Award of Bid No. 11-023 -Renovation of Floors 3 & 4 of the Old Clerk of Court
Building.
See attached memorandum.
001-1930-562000-FE003C General Fund-Hurricane Frances-Courthouse
PREVIOUS ACTION: April 12, 2011 - BOCC approved Budget Resolution No. 11-081 expediting
solicitation of competitive bids, and waiving the bid process for the direct purchase
of materials.
RECOMMENDATION: Board approval to award Bid No. 11-023 to Paul Jacquin & Sons, Inc., conditioned
on Paul Jacquin & Sons, Inc. 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 .Paul Jacquin & Sons,. Inc. refuse to execute the county
contract form without modification, Board approval to award to the next
responsible responsive bidder and authorization for the Chairman to sign
documents as approved by the County Attorney and outlined in the agenda
memorandum.
COMMISSION ACTION:
( ) APPROVED ( )
( ) OTHER
CONCURRENCE:
Faye W. Outlaw, MPA
County Administrator
Coordination/Signatures
County Attorney (x) OMB Director (x) ,~ . ~~
L. Budget Manager ~
an McIntyre Contract Coordinator Marie Gouin
~_ .. ~,~ Jennifer Hill ~ ~'c~
Originating Dept. (x) ~~'~ ( )
Roger A. Shinn (Name)
DENIED
PARKS, RECREATION
AND FAGILITIES
MEMORANDUM
TO: Board of County Commissioners
FROM: Debra Brisson, Director (~""
DATE: May 17, 2011
SUBJECT: Award of Bid No. 11-023 -Renovation of Floors 3 & 4 of the Old Clerk of
Court Building
ITEM NO. VI-F3 (Revised)
Backaround:
In September of 2004, during Hurricane Frances and Jeanne, the (Old) Clerk of Court building
experienced significant water intrusion primarily through the windows. Damage was so extensive
that all four (4) floors of the building had to be gutted. Working in conjunction with FEMA, in
January of 2007, the County proceeded with renovation of the 15t and 2"d floors of the building.
May of 2009, renovations of the 1 Sc and 2"d floors were completed.
Invitation to bid went out April 17, 2011 for Bid No. 11-023 -Renovation of Floors 3 & 4 of the Old
Clerk of Court Building. Bids were due May 10, 2011. Per Demandstar.com, 526 companies were
notified, 32 bid documents distributed and five bids received (Attachment 1). Paul Jacquin & Sons
of Ft. Pierce (St. Lucie County) was the lowest bidder at $1,980,000.
Recommendation:
Board approval to award Bid No. 11-023 to Paul Jacquin & Sons, Inc., conditioned on Paul Jacquin
& Sons, Inc. 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 Paul Jacquin & Sons, inc. refuse
to execute the county contract form without modification, Board approval to award to the next
responsible responsive bidder and authorization for the Chairman to sign documents as approved
by the County Attorney and outlined in this agenda memorandum.
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ENTERPRISES .
vvwvv.dbraoksge.eorn Quality • Reputation • Experience Since 1991
X000 Burma Road, Suite 101 Palm Beach Gardens, FL 33403 561.626.9960 Fax: 561.626.9980 CGC050899
May 17, 2011
Ms.~Fa-veal-1l. U.utlaw Via email & US Mail
County Administrator, St. Lucie County
2300 Virginia Avenue
Fort Pierce, FL 34982
Re: Protest of Intent to Award
Bid No. 11-023
Renovation of Floors 3 &.4 of the Old Clerk of Courts Building
Dear Ms. Outlaw:
Please consider this letter as a formal protest in compliance with the requirements of paragraph 11.1
of St. Lucie County's Purchasing Manual. Specifically we protest the County's intent to award the
referenced project to Paul Jaquin & Sons, Inc. The Jaquin bid must be considered non-responsive
due to the fact that, at a minimum, it contained. a qualification which rejected. the language of the
proposed contract agreement included in the bidding documents, language that all other bidders
accepted and reflected in their bid price.
Offering to modify the contract language would provide Jaquin the opportunity to negotiate more
favorable terms than those anticipated by all of the other bidders. This would be patently unfair.
What contractor wouldn't like to have the opportunity to negotiate more favorable terms post bid?
There is little doubt that any of the other bidders would be able to meet Jaquin's price, given the
benefit of more favorable contract language.
The prospect of offering Jaquin the contract now as per the bidding documents is likewise unfair to
the other bidders. It provides Jaquin an opportunity to sign an agreement or not, take it or leave it.
This option is available a week after he has seen all other bids and had an opportunity to evaluate
the quality of his own bid. Any contractor would be able to bid a more competitive price if they knew
that they would be given an opportunity to sign the contract or walk away without consequence after
having received such critical information.
In closing, we submit that the low bid (Jaquin's) must be rejected for the above outlined reasons.
We further submit that the second low bidder, established as a paving and utilities contractor, must
be seriously scrutinized. in terms. of the. experience. in. similar projects.. With the. considerable
financial consequences at risk to the County, we believe that we represent the low, responsible and
responsive bidder.
Sincerely
David Brooks rprises, inc.
David Brooks, Presr ent
Cc Dan McIntyre, Gounty Atty.
EXHIBIT
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General Contractors • Construction Management
Offices in Palm Beach Gardens & Okeechobee, Florida
EXHIBIT
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COUNTY
CoMM155toN~RS
CoU~iTY
A.DM[NISTRATC)I~
FAYE W. OUTL4W, MPA
May 19, 2011
David Brooks
David Brooks Enterprises
900 Burma Road, Suite 101
Palm Beach Gardens, FL 33403
Dear Mr. Brooks:
This letter is in response to your formal protest of the County's Intent to Award Bid No. 11-023,
dated May 17, 2011.
Please be advised that I have reviewed the basis of your protest and consulted with County staff.
Having done so, I have determined that your protest is without merit and is therefore denied.
Your letter makes two arguments as to why Paul Jacquin & Sons, Ina (hereinafter referred to as
"Jacquin"} should be found non-responsive. First, you state that any offer by the County to
modify the contract language would be unfair to the other bidders. This first argument is without
merit because the County has not and will not offer Jacquin the opportunity to modify the
contract language. On May 17th, the Board of County Commissioners approved. award to
Jacquin on the condition that Jacquin execute "the county contract form, as sent out to all bidders
in Addendum #3, within the time required by the bid and without modif cation."
Second, you state that offering Jacquin the opportunity to sign the contract now is likewise unfair
because it gives him the opportunity to walk away without consequence. This second argument
is also without merit. The decision as to whether Jacquin is awarded this bid lies with the
County, not with Jacquin. The language to which you refer in Jacquin's bid is a deviation from
the bid farm. The Invitation to Bid includes the following language:
The Board of County Commissioners reserves the right to waive any informalities or mirror
irregularities; reject any and all bids/proposals whicli are incomplete, conditional, obscure, or
which cotztain additions not allowed for; acceptor reject any proposal in whole or part with or
without cause; and accept the proposal which best serves the County.
Per consultation with the County Attorney, it is a longstanding legal principle that public owners
can and do have the right to waive any non-material deviation in a bid. The Supreme Court of
Florida decision in Dept. of Transportation v. Groves-Watkins Constructor, 530 So. 2d 912 (Fla.
1988) clarified that in the event of a bid protest, the hearing officer's sole responsibility is to
ascertain whethex the public agency acted fraudulently, arbitrarily, illegally or dishonestly in
connection with determining the lowest responsive or responsible bidder. In Liberty City v.
Baxter Asphalt & Concrete, Inc., 421 So. 2d SOS (Fla. 1982}, the Florida Supreme Court ruled:
CHRIS DZADOVSKY, Disrrlcr No. 1 70D MOWERY, District No. 2 PAULA A. LEWIS, District No. a fRANNIE HUiCHINSON, District No. 4 CHRIS CRAFT, Disrrlcr No. 5
County Administroror - Foye W. Ouriow, MPA
2300 Virginio Avenue Fart Pierce, FL 34982-5b52 Phone (772) 462-1453 TDD (772) 462-1428
FAX (772) 462-2131 • email: outlowf@stlucieco.org
web site: www.stlucieco.org
A public body has .wide discretion in soliciting and accepting bids for public
improvements and its decision; when based on an honest exercise of this
discretion, will not be overturned by a court even if it may appear erroneous and
even if reasonable persons may disagree.
Liberty City, supra at 507. See also Overstreet Paving Co. v. State, Dept. of Transportation, 608
So. 2d 851 (Fla. 2d DCA 1992}; Hubbard Construction Co. v. Dept. of Transportation, 642 So.
2d 1192 (Fla. 1st DCA 1994); Baxter's Asphalt & Concrete, Inc. v. Dept. of Transportation, 475
So. 2d 1284 (Fla. 1st DCA 1985) and Tropabest Foods, Inc, v. State Dept. of General Services,
493 So. 2d 50 (Fla. 1 st DCA 1986}, wherein the First District held as follows:
Although a bid containing a material variance is unacceptable, not every deviation
from the invitation to bid is material. It is only material if it gives the bidder a
substantial advantage over the other bidders and thereby restricts or stifles
competition ...A minor irregularity being a variation which does not affect the
price of the bid or give the bidder an advantage or'benefit not enjoyed by the
bidders or does not adversely impact the interests of the agency.
Tropabest, supra at 52.
Tf Jacquin signs the contract that was provided to all bidders in Addendum #3, he will essentially
waive his own proposed condition precedent which wad nevez accepted by the County.
Therefore, any deviation with respect to the bid submitted to the County would be non-material.
Jacquin is being given the same opportunity That any other bidder would have been given: the
opportunity to sign the County's contract documents as-is. if Jacquin does not sign the contract,
the County will consider the deviation in his bid materials to be material and will therefore
consider him nonresponsive. In that case, the County will award the bid to the next responsive,
responsible bidder. Y would note that, as indicated in your letter, you are the third low bidder, not
the second low bidder.
Should you wish to pursue adrxunistrative review, please let me know within 24-hours of receipt
of this letter in accordance with the County's Purchasing Rule 11.2 (c).
Sincerely,
Faye Outlaw, MPA
County Administrator
ce: County Attorney
MAY. 20. 2011 9: 26AM L I NKHORST & HOCK I N , P. A. N0.
LINIIORS'~' & HaG~~.I1`~, P..t~.
Attorneys of Lazo
06 EXHIBIT
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1 ~vww.t]oridahardhatlaw.com ~,~'ORID~~
Adam C, Linkhorst ~ ~
jahnA. Hockin Lz ~'
H ^`~
Ryan V, Kcutyszewski '
Jason P. Blez~zns ~~9~o cEx~c~~~'
Jason C.1Vlaier 1 CONSTRUCTION
Jared S. Cri llman , LAW
a Aiso Admitted in Georgia
May 2d, 2011
VIA U.S. MAIL 8~. FACSIMII_>= 772-462-2131
& E-MAIfL outlawf stlucieco.or
Ms. Faye W. Outlaw
County Administrator, St. Lucie County
2300 Virginia Ave.
Ft. Pierce, FL 34982-5652
Re: Notice of Appeal re: county's Intent to Award Contract
Bid No. 11-023
Project: Renovation of Floors 3 8~ 4 of the Old Clerk of Courts Building
St. Lucie County, Florida ("Project")
David Brooks Enterprises, Int.'s Bid Protests
Notice Qf A eel and Qemand for Administrative Review
Dear Ms_ Outlaw:
This law firm represents David Brooks Enterprises, Inc. ("Brooks") in connection with its
protest of St. Lucie County's ("county") award of the contract for the Project to apparent low
bidder, Paul Jacquin & Sons, Inc. ("Jacquin") or to apparent second low bidder Compass
Construction, LLC ("Compass"). This letter is intended to serve as Brooks' notice of appeal
furnished pursuant to St Lucie County Purchasing Rule 11.2(c). We are also requesting an
administrative review of this matter.
While Brooks was the apparent third low bitlder,~ Brooks was in fact the low responsive
and responsible bidder and should be awarded the contract for the Project.
Jac uin's~ Bid is Non-Res onsive
Jacquin's bid is non-responsive because it was not submitted in an unqualified manner.
Specifically, Jacquin's bid included a letter which sought to condition Jacquin's acceptance of
the contract for the Project on being able to further negotiate the contract's terms. Such
qualification: (a} is not allowed by the Bid Package or County Procurement Regulations, (b) is
not allowed by State. or Federal law, (c) constitutes acounter-offer to the County's bid offer and
4495 Military Tzail, Suite 106, Jupiter, Florida 33458 - ~ ...
Office 561.626-8880 /Office 954.776.5990
Facsimile 561.626.8885 !''t{~'~` ~`
ivinr. [u. cu i i y. LDHIYI L11V~t1Ul(JI ac nu~nliu , r. H. ivu uo~y r. ~
not an acceptance of the same, (d) provides Jacquin a material advantage over any other
prospective bidders and (e) violates the tenets upon which competitive bid process is based_
The inclusion of the qualification by Jacquin demonstrates that Jacquin did not intend to
agree to the terms of the contract offered by the County. Rather, Jacquin submitted a price and
essentially said - ") will do the work for X price, if the contract is Changed to the way I want it;
but, "rf the contract isn't changed, I will just walk away, and get my bid bond back." The ability for
Jacquin to walk away from its bid and not be in jeopardy of losing its bid bond creates a
substantial, material advantage in favor of Jacquin over all other bidders. Jacquin was free to
submit a low bid and then decide after it could see: (a) what all other bidders submitted and (b)
whether it could wrangle any contract changes, whether to actually sign the contract.
Further, given that Jacquin conditioned its bid on changes to the contract being made, it
stands to reason that Jacquin's bid price assumed that the risk Jacquin would undertake to
construct the Project would be something less than the risk which would be undertaken by any
bidder who proposed to accept the scope and obligations of an unmodified contract. However,
the fact is, even jf the County were to only offer to allow Jacquin to sign the contract "as is,"
Jacquin still had the opportunity (an opportunity that no other bidders were afforded) to decided
to "take or leave" the contract.
By accepting Jacquin's Bid, but excluding the proposed qualifications, the County is
essentially treating Jacquin's bid as two bids. Section 19.0 of the Instructions to Bidders
specifically precludes the submittal by one party of more than one bid. The County violated this
requirement by even accepting Jacquin's bid.
Finally, the last paragraph of section 2.0 of the Instructions to Bidders indicates that by
submitting a bid, a bidder makes an incontrovertible representation that the bidder has
"complied with all requirements in the 'bid package and that the Contract Documents are
sufficient in scope and detail to indicate and convey understanding of all terms and conditions
for performance of the work." Given that Jacquin qualified its bid, how then could Jacquin have
also made the foregoing cett~cation? The answer is that Jacquin cannot "have its cake and eat
it too." Jacquin's bid is non-responsive and should be disregarded.
Jac uin Received a Com etitive Advanta a Because Its Bid Bond Is Not At Risk - An
Advantage Nat Afforded to the Other Bidders
By the language approved at the May 17, 2011 Commission meeting, the only
consequence of Jacquin refusing to sign the contract will be that the County will award the
contract to the next responsive responsible bidder_ However, any other bidder refusing to sign
the contract risks losing the value of his bid security. This constitutes a competitive advantage
in favor of Jacquin not enjoyed by the other bidders.
Jacaufn Received a Competitive AdvantatlQ Because Jac uin Has Seen The Other Bids
and Has Had Time to Shop The Gontract Buv-Out and Evaluate His Option To AGCept the
Work Without Risk - An AdvantaS~e Not Afforded to the Other Bidders
In the last paragraph of your letter dated May 19, 2011, you indicate that the County
intends to determine the responsiveness of Jacquin's bid solely on whether or not he agrees to
sign the contract. "If Jacquin does not sign the contract, the County will consider the
deviation in his bid materials to be material and will therefore consider him
nonresponsive." This position clearly indicates that the County has not yet made a
2
` MAY. 20. 2011 9:27AM LINKHORST & HOCKIN , P. A. N0. 0679 P. 3
determination whether Jacquin's was responsive_ We won't know until Jacquin either signs the
agreement (responsive bid) or refuses to sign (nonresponsive bid). He controls his own destiny.
Unlike all other bidders, Jacquin has enjoyed the benefit of several days (thus far) to evaluate
his hid, shop for more favorable prices and then decide if it is his best interest to sign the
proposed agreement. Unlike all other bidders, Jacquin (by virtue of the County's position) may
choose to decline the contract without penalty of forfeiting his bid security.
We submit that whether or not Jacquin's bid was responsive lies in determining whether
Jacquin's bid qualification gave him a material advantage, not whether or not he ultimately signs
the proposed agreement. The ability to bid a lower price in anticipation of more favorable
contract language, the benefit of not risking his bid security, plus seeing all competitor's bids
and having time to evaluate your own bid before deciding whether to sign the contract are alt
considerable advantages enjoyed by Jacquin and no other bidder_
Gpm ass is nat a Res onsive or Res onsible Bidder
Brooks protests any award of the contract to Compass on the basis of both a lack of
responsiveness and responsibility. With regard to responsiveness, Compass failed to properly
complete the Bid Form. Specifically, Compass failed to attach the bid bond form mandafied by
the Bid Form. The Bid Form requires that a Section 00300 Bid Bond Form be used; the bid
bond submitted by Compass was on a different form_ Compass also failed to accurately answer
certain questions on the Bid Form. The inaccurate responses render Compass' bid non-
responsive and the actual answers given demonstrate Compass' lack of responsibility.
Section 00270 seeks to elicit information about bidders' qualifications. Compass'
responses to the certain questions were non-responsive and underscore Compass' lack of
responsibility. For example, question 6 requests that Bidders identify the last project of the
same nature as the instant Project that it completed. In response, Compass advised that an
employee had worked on the Okeechobee Court House and the Clerk of Court's Building in St.
Lucie County. Such response is non-responsive and demonstrates a lack of responsibility. The
fact that an employee had worked on certain projects while employed by other contractors has
no bearing on Compass' capabilities. Such question is intended to elicit whether Compass has
the experience, infrastructure, financial ability and competence to not only construct the bones
of the Project, but to also manage the construction in the manner needed to achieve completion
in a significantly compressed timeframe, be able to handle the financial stresses of the Project
and prRperiy rnan the Project.
Similarly, Compass' response to Question 10 underscores Compass' significant lack of
experience with the type of construction needed to build the Project. This question asks bidders
to list three significant projects completed within the past three years. In response, Compass
listed the Immokalee Casino, Leilani Heights and Silver Palms RV Resort projects. Each of
these three projects were also listed on the resume Compass submitted with its bid under the
°Recent Projects" heading. The price for the lmmokalee Casino project was $129,750, for the
Leilani Heights project was X370,000 and for the Silver Palms RV project was $837,000.
Simple math reveals that the aggregate of the contract prices for Compass' three "significant
projects" is more than $500,000 less than Compass' bid for this Project. That resume also
identifies that the largest project Compass performed was the Scott Driver Park project for
$1.5m, which involved site work and not vertical construction and was approximately $500,000
less than Compass' bid amount for this Project. All of this is highly suggestive that Compass
simply does not have the requisite experience and therefore responsibility to be able to
3
IYIfST. [v. [ui i 7:~rnm L1IVMVRJI a nwniiu , r n irv vur7 i ~
successfully complete the Project, particularly given the highly compressed schedule and
access restrictions imposed by the contract.
Accordingly, Compass should be deemed anon-responsive and non-responsible bidder
and should not be awarded the contract for the Project.
Gone
This letter is intended to provide the County with notice of the appeal and a demand for
administrative review as required by the County's Purchasing rule 11.1(c). Brooks intends to
supplement this letter with a memorandum outlining its claims and supporting facts and law prior
to the administrative hearing on this protest. Please direct future communications concerning
this matter to the attention of the undersigned attorneys on behalf of Brooks.
Also, we understand that this Project is for emergency repairs and that there is a
compressed construction schedule and therefore we are willing to work with you to expedite any
hearings on this matter as may be reasonably coordinated between our offices.
Thank you for your attention to this matter. We look forward to hearing from you shortly
to coordinate a hearing on this matter.
r
JCM/jl
cc: David Brooks Enterprises, Inc,
Dan McIntyre, County Attbmey (via Email @ mcintyred(c~,stlucieco.orq and US Mail)
4
EXHIBIT
Paul Jacquin & Sons, Inc
in numbers)
SUMMARY
ITEM TOTAL AMOUNT
TOTAL. BASE 811) + LUMP SUM ALLOWANCES $ S
TOTAL COST OP PUBLIC CONSTRUCTION BOND $ .24 0~0
TOTAL 81D Lum Sum $ ~O p~
NOl'1;: It is the intent of the owner to award only one (1) contract For work bid in this advertisement. The award
will be made to the lowest responsive, responsible and qualified bidder based on the total sum amount bid for the
Base Bid. The owner reserves the right to select any combination of the Base Bid.
Dated and signed at 7348Commeraial Circle, FP, FL 34951this 10 day of May
201
NOTE: The contractor should field verify fhe actual site conditions prior to time of bidding
and before submitting the bid proposal. The contractor should read the special
conditions and the requirements for insurance before submitting a bid proposal.
The contractor should verify the quantities to be included in the construction
contract upon notice of anticipated award. The contractor shat{ furnish St. Lucie
County with a Public Construction Bond• in 100% of the total estimated amount of
the contract. The Public Construction Bond shall continue in effect for one (1 }year
after completion and acceptance of the work as guarantee against construction
defects. The contractor in his bid shall include the cost of said bond. Density
testing shall be at the expense of St. Lucie County, except for failing tests, which
shall be charged tv fhe contractor.
I have attached the required 5% Bid Security to this Bid.
Contact Person Michael Jacquin - President
Business Address 7348 Commercial Circle
City, State, zip Code Fort Pierce, FL 34951
Business Phone
Number 772-465-2475
Fax Number 772-466-2806
Cell Phone Number
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.
EXHIB~lT
Heather Lueke ~ ~~
From: Heather Lueke
Sent: Friday, May 20, 2011 11:12 AM
To: 'Douglas W. Ackerman'
Cc: 'Alexander, Bruce G. ;Daniel McIntyre
Subject: RE: David Brooks Bid Protest
Attachments: SKMBT_60111052010500brooks.pdf; Jacquin Old Clerk of Court.pdf
Mr. Ackerman,
In light of David Brooks' demand for administrative review (attached again here), it is imperative that the County know
as soon as possible whether your client intends to sign the contract for this project. Mr. Jacquin informed me on
Wednesday that he was sending the contract to you for review, but it is also attached here. If your client does not
intend to sign the contract, the County reserves the right to make a claim on your client's bid bond for the difference
between his bid and the bid of the second-low bidder, which is $16,044.00. Please contact me as soon as possible to let
me know what your client intends to do. My.office number is 772-462-1421 and my cell phone number is 772-828-9136.
Thanl<you,
Heather Lueke
From: Douglas W. Ackerman (mailto:dwaCa~kirwinnorris.coml
Sent: Thursday, May 19, 2011 10:31 AM
To: Heather Lueke
Cc: michael.jacquin@pjsi.com
Subject: David Brooks Bid Protest
Good morning, Ms. Leuke
I represent Paul Jacquin & Sons, Inc. If you could please send me a copy of (1) David Brooks protest letter, (2)
the County's response and (3) the County's current administrative procedure, I would be very grateful. Thank you.
S -.
~.
.i'
Douglas W. Ackerman
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This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney-client confidential and/or privily
message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited. If you have received this emai
sender by reply email and destroy all copies of the original message including attachments. Thank you.
Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not ii
purpose of avoiding tax penalties that maybe imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or
entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and i
avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by
should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
EXHIBIT
D (~{h)
V
THE AMERICAN INSTITUTE 4F ARCHITECTS
AIA Document A310
Bid Bond
KNOW ALL MEN BY THESE PRESENTS, that we
Gompass Construction, LLC, 1450 86th Ave, Okeechobee, FL 34972
as Principal, hereinafter called the Principal, and
The Gray Insurance Company, PO Bax 6202, Metairie, LA 7000t3~6202
a corporation duly organized under the laws of the State of Louisiana as Surety, hereinafter caked the Surety, are held and
firmly bound unto
5t. Lucie County, 2300 Virginia Avenue, 2nd Floor Annex, Room 228, Fort Pierce, FL 34982
as Obligee, hereinafter called the Obligee, in the sum of FIVE Percent of the amount bid _
Dollars ($ )
for the payment of which sum well and truly to be made, the said Principa! and the said Surety, bind ourselves, our heirs,
executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has submitted a bid for
Renovation of Floors 3 and 4 of the Old Clerk of Gourts Building
NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the
Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or
Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment
of labor and material furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract
and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between
the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party
to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and
effect.
Signed and sealed this 10th day of- May .2011 .
(Wlfiess)
~~ ~/~
(1N'iE ess) l
~41A DOCUMENT A310 -BID BOND -AIA -FEBRUARY 1970 ED -THE AMERICAN INSTITUTE OF
ARCHITECTS 1735 N. Y. AVE. N. W. WASHINGTON, D. C. 20DD8
IG-23248-A
~ Florida Licensed Resident Agent
THE GRAY INSURANCE COMPANY ~ 4 ~ o ~ O
THE GRAY CASUALTY & SURETY COMPANY GENERAL POWER OF ATTORNEY O
KNOW ALL BY THESE PRESENTS, THAT The Gray Insurance Company and The Gray Casualty & Surety Company, corporations duly
organized and existing under the laws of Louisiana, and having their principal offices in Metairie, Louisiana, do hereby make, constitute, and appoint
Benjamin H. French, Dale Waldorff, Kenneth Wayne Walker, Pamela L. Jarman and Paul A. I,ocascio, of Mary Esther, Florida jointly or
severally on behalf of each of the Companies named above its true and lawful Attorneys}-in-Fact, to make, execute, seal and deliver, for and on its
behalf and a5 its deed, bonds, or other writings obligatory in the nature of a bond, as surety, contracts of suretyship as aze•or may be required or
permitted by law, reguiation, contract or otherwise, provided that na bond or undertaking or contract of suretyship executed under this authority shall.
exceed the amount of $10,000,000.
This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of
Directors of both The Gray Insurance Company and The Gray Casualty & Surety Company at meetings duly called and held on the 26'~ day of June,
2003
"RESOLVED, that the President, Executive Vice President, any Vice President, or the Secretary be and each or any of them hereby is
authorized to execute a power of Attorney qualifying the attorney named ~in the given Power of Attomey to execute on behalf of The Company
bonds, undertakings, and all contracts of surety, and that each or any of them is hereby authorized to attest to the execution of such Power of
Attomey, and to attach the sea] of the Company; and it is
FURTHER RESOLVED, that the signature of such off cers and the seal of the Company may be affixed to any such Power of Attorney or
to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall
be binding upon the Company now and in the future when so affixed with regard to any bond, undertaking or contract of surety to which it is
attached.
IId WITNESS WHEREOF, The Gray Insurance Company and The Gray Casualty & Surety Company have caused their official seals to be hereinto
affixed, and these presents to be signed by their authorized officers this 7th day of July, 2004. %f,, l~
B ~-~y Attest: ~7'~~+~~N~" ~P~ ~•,,•V 6hgwR~
s ~ a.!~,N Y' ~/ / e ~
`~ ~"" ^..CF. ! ~i''~~~..~~ "~'~~~ ^ u •- is
SEAL .~ Michael T. Gray Mark S. Mangano
~ti -..• " ' ~ President, The Gray Insurance Company Secretary, 3 f.,~^' ~~~
~~ .
y f~,_y~.~,,,.~ and The Gray Insurance Company, y *~
'` Vice President, The Gray Casualty & Surety Company
The Gray Casualty & Surety Company
State of Louisiana
ss;
Parish of Jefferson
On this 7th day of July, 2004, before mc, a Notary Public, personally appeared Michael T. Gray, President of The Gray Insurance Company and Vice
President of The Gray Casualty & Surety Company, and Mazk S. Mangano, Secretary of The Gray Insurance Company and The Gray Casualty &
Surety Company, personally known to me, being duly sworn, acknowledged that they signed the above Power of Attorney and affixed the seals of the
companies as officers o!, and acknowledged said instrument to be the voluntary act and deed, of their companies.
{ ~UTA4 ~, @ ~.~..
„~ ~-;~
~*? i*~ L-sa S. Millar, Notary Public, Parish of Orleans
~, State of Louisiana
k„ 9P~`~ My Commission is for Life
SwF °~:~~' "•~
I, Mark S. Mangano, Secretary of The Gray Insurance Company and The Gray Casualty & Surety Company, do hereby certify that the above and
forgoing is a true and correct copy of a Power of Attomey~given by the companies, which is still in full force and effect.
IN WTFNESS WHEREOF, T have set my hand and affixed the seals of the Companies this 10th /,(] day o~fy~May 2011
r ~ .... 'tn " ~
°`= S E AL ~ ~ 'S EAL ~ Mark S. Mangano, Secretary
3'a The Gray Insurance Company
"'y~.,, """'-,,,.~~ ~yr~ .............~'~ The Gray Casualty & Snrety Company
r .. *..
pDA100D1 Rev 6/IS120D7
svloa rn/zoon
BID BOND
EXHIBIT
KNOW ALL MEN THESE PRESENTS, THAT WE as
Principal, and as surety, are firmly bound
unto the Board of County Commissioners, St. Lucie County, Florida, hereinafter called the Owner in
the sum of dollars
($ )being 5% of the attached maximum bid amount of
dollars
($ )the payment of which sum well and truly to be made,
the said Principal and the said surety, bind ourselves, our heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these presents.
Whereas the Principal has submitted a bid for
based on the plans and the contract documents
prepared by the St. Lucie County Purchasing Department.
NOW, THEREFORE, if the Owner shall accept the bid of the Principal and the Principal shall enter
into a contract with the owner in accordance with the terms of such bid, and give such 100% Bond
as specified in the Contract Documents with good and sufficient surety for the faithful performance
of such Contract and for the prompt payment of labor and materials furnished in the prosecution
thereof, or in the event the Principal fails to enter such contract and give such bond or bonds, if the
Principal shall pay to the Owner the difference not exceeding the penalty hereof between the
amount specified in said bid and such larger amount for which the Owner may in good faith
contract with another party to perform the work covered by said bid, then this obligation shall be null
and void, otherwise to remain in full force and effect.
Signed and sealed this
20
FOR CORPORATE BIDDERS:
rc11"iilClr}cil.~ I,~cc3i1
`~;e,,r~~:arvi
WITNESS:
By
Title
Surety
By
Typed
Name
Address
day of
(S a ret~,r;
~ N~1lT~l~ ~~:l:..ll l_h Gi~t~
FOR NON-CORPORATE
BIDDERS:
li~ril~:;ipal; (~eai}
WITNESS:
WITNESS:
By
Title
Surety
By _
~:ttf)rll~:V-Ill-r~Ct)
Typed
Name
Address
IMPORTANT -Surety companies executing bonds must appear on the Treasury Department's
most current list (Circular 570 as amended) and be authorized to transact business in the state
where the project is located.