HomeMy WebLinkAboutFinance May 30 20001
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WHATCOM COUNTY COUNCIL
Finance and Administrative Services Committee
May 30, 2000
The meeting was called to order at 12:00 p.m. by Committee Chair L. Ward
Nelson in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Robert Imhof
Absent:
Sam Crawford
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 2.130,
CREATING THE WHATCOM COUNTY RURAL COUNTY SALES AND USE
TAX ADVISORY COMMITTEE (AB2000 -195)
Imhof moved to recommend approval.
Motion carried unanimously.
2. ORDINANCE AMENDING THE 2000 BUDGET, REQUEST #7 (AB2000-
196)
Imhof moved to recommend approval. These items have already been
discussed in prior committee meetings.
Motion carried unanimously.
Dewey Desler, Deputy Administrator, stated the adjustments to the contract
with Paul Koontz will be brought before the Council at its next meeting.
3. DISCUSSION WITH POSSIBLE ACTION ON THE IMPLEMENTATION OF
THE FLOOD CONTROL MAINTENANCE PROGRAM IN COASTAL AREAS
(AB2000 -202)
Finance and Administrative Services Committee, 5/30/2000, Page 1
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Paula Cooper, Special Projects Engineer, stated there was some confusion
about why they were looking at coastal issues. There was an application for
bulkhead repair in Point Roberts. This went to the Flood Control Zone District
Advisory Committee's Project Review subcommittee, who recommended that it
move forward for funding. There are two recommendations the committee wanted
to address that are outlined in her memo. One is an issue of whether bulkhead
protection is the best type of protection, and they suggested addressing these
matters in a more comprehensive planning mode, similar to what they do for the
lower Nooksack River. They thought developing sub -zones would be an appropriate
mechanism. Another item was how they prioritize the projects. Under the Flood
Control Maintenance Program in sections A through E, guidelines for prioritization of
projects, there are general guidelines to direct them. They recommended to her to
get more detailed interpretation of the five items. The mechanism they use to
prioritize will have more defensibility.
Nelson questioned whether establishing priorities for funding would be added
the current priority positions to determine all the types of programs that would
come forward regarding flood mitigation or problems. Cooper stated they wanted
more detail. She would break the items down and provide more detail.
Nelson questioned whether it would be scoped over all elements of storm
management. Cooper stated it would apply to all potentially damageable areas and
projects.
Imhof asked if Cooper would develop those. Cooper stated she would.
Imhof questioned when this would come back to the Council. Cooper stated
it would have to be scheduled with the subcommittee and full flood committee.
Imhof agreed to take it to the full flood committee.
Cooper questioned whether it was okay to spend money on the Point Roberts
coastal project.
The committee concurred.
COUNCIL "CONSENT AGENDA" ITEM
1. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONSULTANT SERVICES AGREEMENT BETWEEN WHATCOM COUNTY
AND STEWART AND KING PARTNERSHIP FOR PREPARATION OF A
PRE - DESIGN STUDY FOR HEALTH CENTER BUILDING IMPROVEMENTS
IN AN AMOUNT NOT TO EXCEED $21,000 (AB2000 -203)
Imhof moved to recommend approval.
Motion carried unanimously.
Finance and Administrative Services Committee, 5/30/2000, Page 2
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Brenner requested a presentation.
Dewey Desler, Deputy Administrator, stated the County purchased the Civic
Center Building. The County has to finalize analysis of the building in preparation
of consulting for the Health Department. This work analyzes electrical, mechanical,
civil, and structural components; they must work with the staff of the Health
Department to design the space that will meet its needs. The County selected a
local provider through a competitive bid process.
Brenner questioned the amount the County has spent to date on the
building. Desler stated the County purchased the building and made some
improvements, as the owners, that are necessary.
Brenner stated she originally understood that there would not be a significant
amount spent after the purchase. She believes there has been a significant amount
spent.
Desler stated they could provide a listing of the maintenance and repair work
that has been done.
Brenner stated work has been done to change some components of the
building. Desler stated they did work on heating, ventilation, and air conditioning
(HVAC) system and the windows. They are waiting for the tenants to depart.
Imhof questioned when the tenants are moving out. Desler stated some are
moving out now, and some are moving out at the end of the year. They are
maintaining an ongoing relationship with Hizzoner's restaurant, which is located in
the basement.
Nelson stated this is basically to look at the needs of the Health Department.
Desler stated recommendations would come back to the Council.
Motion carried unanimously.
2. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD BID #00-
32 TO THE LOWEST RESPONSIVE BIDDER, VALLEY FREIGHTLINER,
INC., FOR THE PURCHASE OF A FIVE YARD 4X4 DUMP TRUCK IN THE
AMOUNT OF $89,769.37 (AB2000 -204)
Dick Prieve, Assistant Director of Administration and Operation, stated this
would replace an older vehicle. Its year is 1987. It is located in Point Roberts.
They have a 4x2 with a sander they still have to lift, which is dangerous in a
snowstorm. Every time there is a snow event, it always gets stuck. The new one
will be equipped with a tank for de -icer. They have been using salt and sand to use
on the bus routes and in the Lake Whatcom watershed. There is a more
environmentally friendly de -icer than salt.
Finance and Administrative Services Committee, 5/30/2000, Page 3
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Imhof moved to recommend approval.
Nelson stated they already appropriated for this in the 2000 budget.
Motion carried unanimously.
3. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD BID #00-
47 TO THE LOWEST RESPONSIVE BIDDER, HARDWARE SALES, INC.,
FOR SUPPLY OF ADS N -12 CULVERT, IN THE AMOUNT OF $39,005.85
(AB2000 -205)
Nelson questioned whether this is the 12 -inch.
Dick Prieve, Assistant Director of Administration and Operations, stated it is
for all sizes, but they need a particular type of culvert. There were two other
bidders, but they did not bid to specifications. The County wants this bidder
because, if they have to add to it or damage it in the middle, then the bands will fit.
Otherwise, they have to replace the entire culvert.
Imhof moved to recommend approval.
Motion carried unanimously.
4. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD BID #00-
53 TO THE LOWEST RESPONSIVE BIDDER, WASHINGTON CULVERT,
FOR SUPPLY OF GALVANIZED CULVERT, IN THE AMOUNT OF
$59,032.30 (AB2000 -206)
Nelson questioned whether there were other bidders on this bid.
Dick Prieve, Assistant Director of Administration and Operations, stated there
was one other bidder.
Imhof questioned when they would use the galvanized and when they would
use ADS types of culverts.
Prieve stated that if the Council approves this tonight, they won't order them
until they are sure they have all the permits in place. These were for fish passage
culverts. Right now, they are working with the Corps of Engineers. If they don't
get approval, they won't order the parts.
Brenner questioned why there is a difference in the price. Prieve stated they
ordered three separate pipes. It is an arched galvanized pipe. This one bidder's
total was lower than the other.
Brenner questioned where Washington Culvert is located. Prieve stated they
are in Arlington.
Finance and Administrative Services Committee, 5/30/2000, Page 4
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Imhof moved to recommend approval.
Motion carried unanimously.
S. AWARD OF BID AND AUTHORIZATION FOR THE EXECUTIVE TO ENTER
INTO A CONTRACT WITH THE BELLINGHAM HERALD AS WHATCOM
COUNTY'S OFFICIAL NEWSPAPER (AB2000 -207)
Imhof moved to recommend approval.
Motion carried unanimously.
6. RESOLUTION SETTING A HEARING AND NOTICE OF HEARING ON
SALE OF COUNTY TAX TITLE PROPERTY (AB2000 -208)
Imhof moved to recommend approval.
Motion carried unanimously.
7. RESOLUTION TO CANCEL THE UNCOLLECTIBLE WELCOME CEMETERY
FLOOD CONTROL ASSESSMENT FOR PARCEL NO. 390527 400102
0000(AB2000 -209)
Barbara Cory, Treasurer, stated they have been assessing Welcome
Cemetery for the flood control fee since the initiation of the fee. She is unable to
locate anyone from the association to pay the fees. Everyone who is listed as a
member of the association is dead. It is an abandoned cemetery and is not within
any current cemetery district.
Nelson stated someone is taking care of the cemetery. It has been mowed.
Cory stated it is abandoned.
Dawson asked if they will sell the property. Cory stated the property is
exempt from property taxes, but they tax most exempt properties for the flood fee.
Nelson questioned whether there was an election that was held for the
district. Cory stated this cemetery is not within the bounds of any cemetery
district. It is just a cemetery association.
Imhof moved to recommend approval.
Motion carried unanimously.
9. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY HEALTH AND
HUMAN SERVICES DEPARTMENT AND WHATCOM COMMUNITY
HEALTH PARTNERSHIP FOR DEVELOPMENT AND IMPLEMENTATION
Finance and Administrative Services Committee, 5/30/2000, Page 5
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OF COMMUNITY HEALTH IMPROVEMENT INITIATIVES AS DELEGATED
TO THE LOCAL HEALTH DISTRICTS IN THE AMOUNT OF $37,500
(AB2000 -211)
Imhof moved to recommend approval.
Chuck Benjamin, Health and Human Services Director, stated they've been
funding this with St. Joseph's Hospital since 1996. They have been doing good
things with mammography rates, childcare providers, and domestic violence. They
have picked up more sponsors, including the United Way. The partnership has
become sophisticated enough to form a 501C3, and can pursue other grants and
funding. This is in conjunction with the Washington State Health Plan from 1993.
Nelson asked for a presentation before the Board of Health. Benjamin stated
he would set it up. They restructured the partnership. Eighty five percent of the
community members were asked for a one -year membership, but signed up for
three years.
Motion carried unanimously.
8. RESOLUTION ESTABLISHING COUNTY ROAD PROJECT NO. 992224
AND THE AWARD OF CONTRACT FOR YEW STREET ROAD
IMPROVEMENTS (AB2000 -210)
Bruce Mills, Assistant Director of Engineering, stated they set forth a
recommendation and then a revised recommendation. He referenced Council
packet page 151, item number one, which is Friberg's bid. Friberg crossed out the
1,000 hours for traffic control labor, and put in 4,600 hours. There is a reference to
schedule A in a footnote on page 151 of the Council packet. There are two
schedules in this contract. Schedule A is roadway work for the County in redoing
Yew Street Road. Schedule B is sanitary sewer work for the City of Bellingham.
The City of Bellingham has joined the County for this project. On packet page 145,
the item is for traffic control roadwork for 4,600 hours. At the bottom of that page,
there is a footnote that refers the bidder to the special provisions. The special
provisions say that the unit price on bids for flagging hours on schedule A regarding
roadwork will be the same unit contract price for schedule B. In this case, Friberg
bid $27 per hour for traffic control for the roadwork. They also bid $27 per hour for
traffic control for the sanitary sewer job. The question is whether the bid was
altered. They scratched out the 1,000 hours and replaced it with 4,600.
Imhof stated schedule B specifies the amount of bid for this item shall be the
same amount bid in schedule A. He questioned how one would get the same
amount without the same hours. The bid didn't specify the unit price. Mills stated
it did specify the unit price elsewhere, but not on here.
Imhof stated there is a bit of ambiguity.
Finance and Administrative Services Committee, 5/30/2000, Page 6
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Mills stated that in reviewing the bid, it was found that Friberg altered a bid
quantity amount for traffic control labor, apparently due to misinterpreting a
footnote in the bid proposal form. There are two different ways to look at this. A
section of the standard specifications says that a proposal form will be considered
irregular and will be rejected if the authorized proposal form, furnished by the
contracting agency, is not used or is altered. Another part of the specifications also
says that the right is reserved by the contracting agency (the County) to waive
informalities in the bidding. When staff initially brought the recommendation
forward to contract with Friberg, they were waiving that informality. Upon further
review and receipt of other information that came to the County's legal counsel,
they decided to reverse the recommendation. An alteration is an alteration.
Nelson stated the recommendation is to reject the bid due to the alteration.
Mills stated that is correct.
Dan Gibson, Senior Civil Deputy Prosecutor, stated two tracks need to be
explored. One track is whether this is a material irregularity that cannot be waived,
and would therefore require the rejection of the bid. That is the position of
Colacurcio, because it places Friberg in the position of having a material advantage
if it were waived. The argument is that a contractor could structure a bid in such a
way that, if the contractor didn't like the outcome, a material irregularity would
allow him or her to back out. That is a material irregularity that requires rejection.
Friberg is arguing that they couldn't back out. This is immaterial and they can be
held to the contract. The second line of analysis is whether the irregularity should
be waived. The question is whether the County should begin changing additions
and deletions to form the County's best estimate of what the bidder was thinking.
The questions are whether it can it be waived and whether it should it be waived.
Dawson questioned the definition of informality. Gibson stated informality
refers to a change or error that is not material. Something that is immaterial is not
quite right, but can be overlooked. The issue is whether an alteration is an
informality.
Brenner stated the councilmembers are not legal minds. This is not her
expertise. She questioned the County's legal opinion.
Gibson stated the recommendation from staff is to accept Colacurcio's bid.
His personal opinion is that this is an irregularity that can be waived but should not
be waived.
Steve Meekham, Friberg Construction representative, stated this can be
waived, but disagreed that it should not be waived. If the decision is appealed, the
Superior Court will side with the decision made by the County, no matter which way
the County decides. It is case law that the County is given a great deal of
discretion in making a determination. The answer to the question of whether the
irregularity should be waived is that it should be waived because of the ambiguity
within the specifications. The specifications on bid schedule A stated that the bid
amount shall be the same as on schedule A. The term "bid amount" is a
Finance and Administrative Services Committee, 5/30/2000, Page 7
1 terminology used frequently in bids. There is a distinction between a bid amount
2 and a unit price. A bid amount is an extension of the quantity over the unit price.
3 Friberg submitted the correct unit price. They didn't extend it because the bid
4 amount in schedule B was to be the same as in schedule A. They followed what
5 was set forth on the bid form. They didn't deviate from that. They did exactly
6 what was requested. The contract is a unit price contract, which means the County
7 will pay based on the unit price. The County will pay more to enter into a contract
8 with Colacurcio than with Friberg, based on the unit prices because Friberg bid
9 higher on the unit prices. Specifications allowing the County to correct the
10 extension using the unit price that Friberg submitted gives Friberg a lower bid,
11 which would correct and lower the total base bid amount. When they compare
12 apples to apples, Friberg has the lower bid. The legal counsel would like to hold
13 Friberg to a higher standard when they are not accepting responsibility for the
14 ambiguity that is set forth in the bid proposal. It is his position that the County
15 should waive the irregularity because of the County's role in creating the ambiguity.
16 Had the County not created the ambiguity, Friberg would have submitted its bid
17 based upon 1,000 hours multiplied by the unit price, which was the same. Friberg
18 did exactly what was called for in the bid proposal. Friberg submitted both the
19 same unit price and the same bid amount. That is why the irregularity should be
20 waived.
21
22 The engineer's initial determination was that the irregularity should be
23 waived. Friberg relied upon that representation. The agency requested that
24 Friberg prepare a schedule. Friberg prepared a schedule and applied for grading
25 permits and infill permits. Friberg proceeded, based upon the County's initial
26 waiver of that irregularity. Friberg expended funds since the bids were first
27 opened. It is unjust to have Friberg expend those kinds of resources, and then let
28 the County change its mind in the twelfth hour. As of last Wednesday, Friberg met
29 with the engineer's office, who was going to recommend that the Council accept
30 Friberg's proposal and waive the irregularity. On Friday night, Friberg received a
31 letter indicating otherwise, after they performed certain work and functions in
32 accordance with the engineer's directives. Friberg's position is that the County
33 should waive the irregularity and can waive the irregularity. If the decision is
34 appealed to the Superior Court, the County's decision will be upheld.
35
36 Bob Marconi, Colacurcio Construction, stated his position is that there is no
37 discretion to waive this as some type of minor irregularity. Furthermore, they
38 would agree with the decision that it should not be waived, even if it was minor.
39 Fundamentally, they agree with the supplemental memo when it says the County is
40 best served by applying the rules in a simple, straightforward fashion. The rules
41 are set forth in the bid documents. All the bidders have to live or die by the rules.
42 Sometimes it may seem, at first blush, to be unfair. That is simply the way the
43 bids are administered throughout the state, and the way the bids are considered
44 whenever they are brought forward for judicial determination. Friberg submitted an
45 altered bid. There is no dispute about that. Friberg's bid was altered. The bid
46 documents unambiguously say that an altered bid must be rejected. There is no
47 discretion. Consequently, as a result of submitting an altered bid, they don't even
48 get to the question of irregularity or informality. The bid documents tell the bidders
Finance and Administrative Services Committee, 5/30/2000, Page 8
1 what will happen if the bid is altered. Furthermore, they violated other provisions
2 of the bid documents, but it is correct to focus on the altered bid question.
3
4 Friberg's response was that it is the County's fault, because the County
5 confused them. The County had a document that confused Friberg. As a result,
6 Friberg did what it did, and the County should waive the irregularity because it is
7 fundamentally the County's fault. The reality is that there were six bidders on this
8 project. Five of the six bidders did not cross out a quantity and write in a different
9 quantity. Five of the six bidders read all of the bid documents, considered what
10 made sense and didn't, and submitted the bid properly and legally without altering
11 the bid form.
12
13 The bid documents say what the bidder must do if there is ambiguity, which
14 there isn't. He has been involved in a lot of bids and bid protests, and he has never
15 seen a bidder cross out an estimated quantity and put in a different one. The bid
16 documents say, in two separate places, that if there is any doubt about the bid, the
17 bidder shall promptly notify the County engineer, who will issue a written
18 addendum to clarify the questions. Secondly, the standard specifications, which are
19 also a part of the bid documents, say that any prospective bidder who desires
20 explanation or interpretation of the bid documents must request the interpretation
21 or explanation in writing soon enough to allow a written reply to reach all
22 perspective bidders before the submission of their bids. Regarding the comment
23 that Friberg was confused and it is Whatcom County's fault, Friberg still didn't do
24 what the bid document said any bidder should do, which is contact the County and
25 ask the question. Bidders are required to read all of the bid documents. The
26 special provisions are absolutely clear. It says one must use the same unit price for
27 both. If someone read the special provisions as he or she was required, he or she
28 would realize that the only requirement is to use the same unit price on both
29 schedules, not to change a quantity.
30
31 A question was asked about what informality can be waived. A good
32 example is if a bidder adds up the numbers incorrectly. If that is happens, the
33 numbers are totaled properly. That can be waived as an informality. In this case,
34 an altered bid gives Friberg and advantage not enjoyed by any other bidder. If one
35 submits an altered bid, the bid documents state that the bid will be rejected. There
36 is no discretion. Friberg finds out what other bidders have bid after submitting its
37 altered bid. In this particular case, there is $10,000 or $15,000 if one corrects
38 Friberg's bid between the bidders. Friberg's advantage is that, if they bid $100,000
39 lower for instance, they can decide to pull out of the bid process because the bid is
40 altered. Friberg would then be in the position to decide if they want the job or not.
41 That is a substantial and material advantage that is not permitted, according to
42 specific cases in this state.
43
44 In summary, he requested that the County Council follow the
45 recommendation of the Public Works Department and Mr. Gibson to award the
46 contract to Colacurcio.
47
Finance and Administrative Services Committee, 5/30/2000, Page 9
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Gibson stated time is of the essence on a job like this. At this point, no bid
has been awarded. If a party does something in reliance of a bid being awarded,
that is the party's responsibility. If this goes to court, the agency wants the ability
to react as quickly as possible. He asked for wording in a motion that, if it goes to
court and the Council's decision is altered, the other party is awarded the bid with
no further ado. He asked that the Council give that power to the Executive.
Brenner questioned whether the original acceptance from engineering was on
legal advice. Gibson stated it was. The determination was made that the
irregularity should be waived. Upon further consideration, the decision was
reversed. The longer they discuss this, the more he realizes they are discussing
this at length because one of the parties didn't do the bid correctly. If the party did
the bid correctly, they would not be going through this.
Brenner questioned whether this bid was any more ambiguous than other
bids. Mills stated that if the footnote is read alone, it is. It is not a standard
footnote they put in contracts. If the footnote is read in the context of everything
in the bid, it is not ambiguous.
Brenner asked if the County has contracted with Friberg before. Mills stated
is has.
Brenner asked if it is common for companies to expend money prior to award
of an official contract. Mills stated contractors try to be ready when the award
comes. However, they don't typically order materials.
Nelson asked about the intent of the alteration.
(Clerk's Note: End of tape one, side A.)
Nelson continued to state that a statement was made that it is possible
Friberg made the alteration to protect themselves by being able to renege on the
contract. He questioned whether it is a reasonable argument about whether that
was truly the intent. Gibson stated that in suggesting a party would make an
argument like that, they are suggesting people are not of their word. In the
abstract, he questioned the price a party would have to get out of a position in
which it doesn't like what it has done to be the low bidder,.
Nelson asked if there is legal ground to withdraw from the contract. Gibson
stated it is an argument to say one can't be held to a bid because of a mistake. He
is not suggesting that is something Friberg thought about or would do. It is
conceivable that a party would make that argument.
Imhof stated it is the same argument they are making about whether the
party receives a special benefit. Gibson stated that is the question. If a party can
make that argument, with a possibility that it will prevail, he would advise to not do
the bid because they don't want to be put in the position of having to make those
arguments as a public agency. The County wants a straight clean process. His
Finance and Administrative Services Committee, 5/30/2000, Page 10
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original recommendation was with clear recollection of a discussion with Friberg a
year ago on the same matter. At that time, he told Friberg that the County is
seeking to protect the integrity of the bid process. That is why the failure to list
subcontractors is a basis for rejecting the bid.
Imhof stated that is a state law. It is automatic.
Gibson stated the position was that Friberg didn't have subcontractors. In
addition to the state law that required listing subcontractors, the County asked that
it be noted if there are no subcontractors. Friberg failed to indicate that they didn't
have any subcontractors. The County told Friberg to follow the rules or find
themselves in this position. The final recommendation now is to follow the rules so
they don't have these arguments, with all the ambiguity that attends that.
However, the County said that to Friberg before.
Dawson asked if there is a built in way to allow a company to withdraw.
Gibson stated that is the purpose of the bid bonds. If a party withdraws without
good reason, a bid bond is in place.
Imhof stated the County could do the opposite. The County could hold a
company to a bid that the company is trying to get out of. It is not a guaranteed
strategy. Gibson stated that in making the decision on whether Friberg is placed in
a material advantage, one never looks at the argument they are making at the
moment. At the moment, they are making the argument that serves their
advantage at that moment. One has to anticipate the argument that would be
made if not to their advantage and ask if there is a reasonable argument.
Imhof stated the unit price is $27 per hour. There is no material advantage.
Marconi stated one is expected to read the rules and request clarification
first. One rule is that an altered bid is rejected. Another rule is that any ambiguity
be cleared up instead of blaming the County for writing ambiguous rules. Instead,
one is to specifically inquire in writing about the rules. Friberg submitted an altered
bid. Friberg did not do what the bid documents required, which was to submit the
bid documents correctly and to seek clarification if there was confusion. Five of the
six bidders read all the documents, including the special provision that said only the
unit price should be the same. He didn't suggest or claim that there is any ill
intent. It is only a theory that such a circumstance exists. The rules were clear
and need to be followed. For those reasons, it is fair to bidders and taxpayers.
Meekham stated the position that has been taken is that the County is
required to reject the bid. However, page four of the proposal stated the County is
not required to, but may reject the bid. Also, the point was brought up about why
Friberg didn't ask for clarification. Friberg didn't ask for clarification because the
terminology was unit price versus the bid amount. If they read it in its entirety, it
says the unit price shall be the same for both schedules. It doesn't say the total
bid amount shall be the same. The specifications refer to the unit price. The note
at the bottom of the bid form does not do so. He has been in construction for 30
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years, is a professional engineer, and has worked with construction contractors and
owners. When he read the bid proposal, he believed the bid asked for the same bid
amount. Friberg submitted a bid amount of $124,000 for that amount and used the
unit price that was set forth earlier in the specification. The problem is that it
should have been 1,000. It isn't fair to Friberg for the County to take no
responsibility. The County should make the correction that is fair to the taxpayers.
There would be a savings of $20,000 in taxpayer money.
Imhof moved to recommend approval to waive the informalities and to award
the contract to Friberg Construction.
Nelson stated it is a difficult situation. He would support staff's
recommendation. The Council should not get in the habit of reviewing these each
time there is a different interpretation. If the interpretation is unclear, one needs
to contact the agency and understand the language.
Brenner stated there was a comment about the $20,000 savings to the
taxpayers. It is setting a dangerous precedent for people to do things because they
are cheaper and not how they are supposed to be done. The Council has denied
waiving other informalities. She wanted the language about waiving informalities
removed from the bid language. Friberg Construction has a good reputation, but
she didn't like any alteration. It sets up the ability for the County to play favorites.
Nelson restated the motion.
Imhof included Gibson's suggested language that if the issue goes to court,
the winner in court would be awarded a contract immediately.
Motion failed 1 -1 with Imhof in favor.
Nelson stated it would go before the full Council without a recommendation.
Jeff Nelson, Wilder Construction, stated he also participated in this bid
process. He has been through this before. Public agencies finally accepted the
Washington State Department of Transportation (WADOT) regulations, which make
it clear than any altered bid be thrown out. He has worked with both of these
contractors. He can't say anything bad about either one of these contractors.
Friberg's bid must be thrown out or it will create many problems in the future.
10. ANNUAL REVIEW OF THE WHATCOM COUNTY FERRY RATES (AB2000-
212)
Jeff Monsen, Public Works Director, stated they are required to bring the
ferry rate financial analysis forward each year. They are not asking for any action.
The rates are subject to ongoing discussion with residents on the island, including
parking, a need for new boat, labor negotiations, and other items. The
recommendation is to hold the rates to the status quo.
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Imhof stated the document policy statement says the ferry rates should
cover 55 percent of the ferry, but not maintenance and operation of the dock.
Monsen stated that is correct. That is consistent across the state. Docks are
considered bridges. Because of work they are doing on ferry operations, the 55
percent deserves a review. The state ferry system works on a 60 percent system,
and rates do not cover capital expenditure.
Imhof asked if the County would still continue under the 55 percent. The
ferry has been running more often and with additional people. He asked if that
would effect the rate. Monsen stated they are not proposing to add additional crew.
The number of runs has been the same, but they adjusted the time of the runs.
The reason they haven't changed rates for a long time is because the usage
continues to climb, which offsets any increase in operational cost. There is no way
this trend can continue, because they can't add any more riders unless they are
just passengers.
Brenner questioned when the Lummi Island Ferry Committee was formed.
Dawson stated the committee was formed recently
Brenner asked who formed it.
Nelson stated it was formed by administration due to concerns from the
islanders. That is what they said during the Public Works Committee.
Monsen stated there was no formal formation. The residents took the
initiative in pulling this together.
Dewey Desler, Deputy Administrator, stated it is more of an ad hoc
committee on the part of the islanders.
Dick Prieve, Assistant Director of Administration and Operations, stated the
islanders formed it a few months ago. Some of the residents got together. There
is probably more than one committee out there.
Brenner questioned whether this committee is something the Council was
supposed to know about and if the Council was officially involved. Prieve stated it
is not. A couple of months ago, they had a meeting with the people doing the
survey before it went public. He asked the chair of this committee to leave because
the committee doesn't have any jurisdiction. The committee is just forming. He
believed everyone received a copy of the survey, but it may have only been sent to
the Council Chair. He will make sure that each councilmember receives a copy.
Monsen stated that the staff planned this timeline to discuss the rates and
the new ferry. If the normal sequence of committee meetings was held today, it
would have made more sense.
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OTHER ITEMS
Dewey Desler, Deputy Administrator, stated that during previous Finance
Committee meeting, they discussed sending contracts to Council during
emergencies.
Imhof stated this item is on Council packet page 406.
Desler stated the County can waive the bid requirements during an
emergency, but cannot waive the contracting requirements during an emergency.
That can be difficult when minutes count. The administration advocated that the
Council waive the contract requirements when the Executive declares an
emergency, which he does about once every three years. During every other
emergency, which averages to every six years, they anticipate having to waive the
requirements.
Imhof stated alternate wording was suggested to the Council that defines the
parameters in which the Executive can call an emergency.
Nelson stated the Executive could approve the funding, not exceeding
$35,000.
Imhof stated the Executive could also award the contract.
Nelson stated he didn't have a problem with that. He suggested an
amendment that the decision be brought to the Council for review at its next
meeting.
Desler stated the administration would be happy to address that.
Brenner questioned whether the Council decided during the previous Council
meeting that this would take affect until the next Council meeting.
Imhof stated it is in effect. They can't withdraw a contract.
Brenner stated the Executive can't keep adding to it.
Nelson stated that if the review must be done, complete discussion will be
held.
Imhof stated this part of the County code specifically outlines when it can be
used. It can't be an ongoing appropriation.
Nelson stated he wanted review of the contract, regardless of the approval,
by the Council. He asked the administration to draft that language.
Desler stated he would prepare that language. The administration doesn't
want the Council to assume that the administration is seeking any additional power.
They are trying to approach this responsibly. They are concerned about going
through the normal channels during an emergency.
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Imhof stated most of state law was written for the commissioner form of
County government. Commissioners are both the legislative and administrative
branches. This puts Whatcom County into compliance with the state law.
ADJOURN
The meeting adjourned at 1:15 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
L. Ward Nelson, Committee Chair
Finance and Administrative Services Committee, 5/30/2000, Page 15