Full Text
memo Page 1 of 8 TO: Bruce Bender – Chief Administrative Officer Steve King – Director of Public Works Jim Nugent – City Attorney Starr Sullivan - Wastewater Superintendent FROM: Nancy Granger Cormier – Project Manager DATE: September 2, 2010 JOB NO.: 1657.005.04 RE: Missoula WWTP Headworks and Odor Control Project Protest of Low Bid by Sletten Construction Company CC: Scott Murphy – Project Principal Urgent For Review Please Comment Please Reply For Your Use The bids for the Missoula WWTP Headworks and Odor Control Improvements project were opened on August 3, 2010. Ten responsive bids were received. The three apparent low bids are summarized as follows: Bidder Certified Bid Amount Dick Anderson Construction $7,768,475.00 Sletten Construction $8,480,000.00 Johnson-Wilson Constructors $8,489,200.00 Engineer’s Estimate $9,094,000.00 In a letter dated August 24, 2010, and received electronically by the City the same day, Sletten Construction protested the low bid submitted by Dick Anderson Construction. Their letter provides two reasons in support of their assertion that the Dick Anderson bid is non-responsive. Those reasons were summarized on page 8 of Sletten Construction’s letter as follows: 1. Dick Anderson Construction does not have experience in successfully completing projects of a similar size, with similar complexity. 2. Sletten asserts that Dick Anderson Construction’s project experience does not include water and/or wastewater mechanical treatment plants with a capacity greater than 3 million gallons per day. In their letter, Sletten Construction included numerous partial excerpts from the bid documents, particularly from Section 00100 - Invitation to Bid and Section 00200 - Instructions to Bidders. In most instances, Sletten Construction presented only portions ---PAGE BREAK--- memo Page 2 of 8 of the contract documents, which may be taken out of context. For reference and to provide context, the relevant paragraphs in their entirety from these two sections of the contract documents are provided at the end of this Memorandum in Attachment A. Key wording has been highlighted. This memorandum addresses both points in the following pages and provides information which was included in the contract documents, the Dick Anderson Construction bid, and supplemental information submitted by Dick Anderson Construction during Morrison-Maierle’s bid responsiveness review. Response to Point 1. Dick Anderson Construction experience with projects of similar size and complexity. The Headworks and Odor Control Improvements project has multiple elements of complexity including: • Sheeting and shoring of a 36-foot deep excavation in close proximity of existing structures, • Dewatering requirements, including pouring an underwater concrete seal at the bottom of the excavation, • Large concrete structures including the entire lower level of the Headworks Building and two grit basins, and • Placement of large mechanical equipment. This point was discussed in detail at the mandatory Pre-Bid Meeting. In our responsiveness review, Morrison-Maierle has verified that Dick Anderson Construction (DAC) has completed at least 15 projects over the last 10 years that have a dollar value greater than $7.6 million. They include two projects in excess of $20 million and one in excess of $30 million. DAC projects of similar complexity include the Canyon Ferry Dam Spillway, MSU Chemistry Building, Carroll College Fortin Science Center, St. Peter’s Hospital Expansion, and the Central Montana Surgical Center. DAC has proposed to use Goebel Construction based in Spokane, Washington for installation of the sheeting and shoring as well as the seal slab. Goebel Construction has completed more than 24 projects with similar size and complexity, including numerous bridges and deep lift stations. Based on our review of DAC’s project experience and that of their subcontractors, we believe that DAC has demonstrated successful completion of numerous projects of a similar size and with similar complexity compared to the Headworks and Odor Control Improvements project. ---PAGE BREAK--- memo Page 3 of 8 Response to Point 2. Dick Anderson Construction’s project experience does not include water and/or wastewater mechanical treatment plants with a capacity greater than 3 million gallons per day (mgd). The contract documents do not state that the Contractor must have experience at mechanical treatment plants with a capacity greater than 3 mgd. Article 3 of Section 00200 – Instructions to Bidders states that four elements will be considered in determining the lowest responsible bidder (See Attachment The four elements are: 1. The Bidder maintains a permanent place of business; 2. The Bidder has adequate plant and equipment to do the work properly and expeditiously; 3. The Bidder has a suitable financial status to meet obligations incident to the work; and 4. The Bidder has appropriate technical experience with at least three comparable projects within the last 10 years involving rehabilitation or modification of water and/or wastewater mechanical treatment plants with a capacity greater than 3 mgd. Our review confirmed that DAC meets without exception items 1, 2 and 3 of the bidder qualifications. With regard to item 4, it was noted that DAC has completed at least ten water and/or wastewater projects in the last 10 years including the following: Plant / Facility Average / Peak Capacity Hamilton WWTP 1.9 mgd / 3.0 mgd Livingston WWTP 2.0 mgd / 5.0 mgd Great Falls WTP 12.3 mgd / unknown West Side Lift Station, Deer Lodge 1.8 mgd / 3.0 mgd Carras Lift Station, Missoula 2.6 mgd DAC lists one project at a mechanical treatment plant with a capacity greater than 3 mgd. While the plant capacities of the remaining DAC projects may not be greater than 3 mgd, they are close to that capacity. In preparing the contract documents, the 3 mgd criterion was used in only one sentence, noted above. In all other references to bidder qualifications, the phrases “similar projects with similar complexity” or “appropriate technical experience” were used (See Attachment Where the 3 mgd criterion was used, it was a descriptor of convenience as a way of approximating project size and complexity for purpose of giving potential bidders a target level of experience and to allow the City to exclude potentially non-responsible bidders from contract award. Our detailed review of DAC’s experience included their plants of similar capacity, but also focused more closely on their overall level of experience with projects involving similar complexity as the construction of the Headworks project. ---PAGE BREAK--- memo Page 4 of 8 On page 4 of Sletten Construction’s letter, reference is made to the information presented at the mandatory pre-bid meeting. The letter incorrectly describes what was presented. Following is a transcript from a recording of what was said at the meeting regarding bidder qualifications: Nancy Cormier, Morrison-Maierle: “What I’d like to emphasize is that this project… when I say “appropriate technical experience”, this project isn’t just a building with equipment, this project has quite a bit of excavation, it’s got sheeting and shoring, it’s got a lot of concrete work. So “appropriate technical experience” isn’t just the fact that you built a Headworks project before. Feel free to list those projects that have both kinds of similarities. If you don’t have a lot of Wastewater Treatment Plant work, that’s not necessarily going to red flag you as being non-responsive. Is that clear?” Bidder: “So what is the criteria?” Nancy Cormier: “The criteria we are looking for is experience and we are looking for experience in similar type projects, but this project happens to include a lot of earthwork, a lot of concrete and a lot of equipment. So I want to see experience in those items.” We believe that DAC’s project experience meets the intent of the qualifications requirements in the contract documents. Sletten Construction Conclusion. On page 9 of their letter, Sletten Construction states, “The best interests of the public are served by following the terms and conditions of the Contract Documents. The terms and conditions of these contract documents clearly warrant a finding that the bid of Dick Anderson Construction, Inc. is non-responsive and must be rejected. No other conclusion would be consistent with upholding the integrity of the public bidding system.” This point falls outside the realm of engineering expertise and requires a response from the City Attorney regarding Montana’s competitive bidding statute and relevant Montana case law. However, it should be noted that Article 19 of the Instruction to Bidders clearly states that the OWNER reserves the right to waive all informalities not involving price, time, or changes in the Work (paragraph 19.01) and consideration factors for Award will include conformance with all material terms and conditions of the Contract Documents, Bid price, and other appropriate factors (paragraph 19.06). R:\1657\005.01 WWTP Headworks\Bidding Docs\Corresp\Client\Sletten Rebuttal memo.docx ---PAGE BREAK--- memo Page 5 of 8 ATTACHMENT A RELEVANT SECTIONS OF THE CONTRACT DOCUMENTS IN THEIR ENTIRETY (Note: Key portions of the following sections have been highlighted for the purpose of this memo. Original contract documents do not contain highlighting.) ---PAGE BREAK--- memo Page 6 of 8 Section 00100 - Invitation to Bid: There will be a Mandatory Pre-Bid conference at the Wastewater Treatment Plant at 10:00 a.m., local time (Mountain Time Zone), on Tuesday, July 13, 2010. Interested CONTRACTORS and Subcontractors are required to attend. Bids from CONTRACTORS not in attendance will not be considered for this specific project. It is the CONTRACTOR’s responsibility to be familiar with the Treatment Plant site and any constraints material to his bid. A tour of the project site will be conducted after the meeting. Actual prior experience performing the type of work in this project is an important factor for performance of this project. The Bidder is required to submit, with the bid proposal, proof of experience performing work of a similar nature. Lack of experience in successfully completing projects of a similar size, with similar complexity, at water or wastewater treatment facilities may be construed as constituting a non-qualified bidder as determined by the City. Section 00200 - Instruction to Bidders: ARTICLE 3 - QUALIFICATIONS OF BIDDERS 3.01 To demonstrate Bidder’s qualifications to perform the Work, the Bidder shall submit written evidence such as financial data, previous experience in performing comparable work, business and technical organization, present commitments, and such other data as may be called for below or in the Supplementary Conditions. A form entitled “Information Required of Bidders” is included with the Bid Form documents for the purpose of the Contractor furnishing this information. A. Each Bid must contain evidence of Bidder's qualification to do business in the state where the Project is located or covenant to obtain such qualification prior to award of the contract. No Bidder will be acceptable if he is engaged in any other work which impairs his ability of meeting all requirements herein stipulated. B. In determining the lowest responsible bid, the following elements will be considered; whether the Bidder involved: 1. maintains a permanent place of business; 2. has adequate plant and equipment to do the work properly and expeditiously; 3. has a suitable financial status to meet obligations incident to the work; and ---PAGE BREAK--- memo Page 7 of 8 4. has appropriate technical experience with at least three comparable projects within the last 10 years involving rehabilitation or modification of water and/or wastewater mechanical treatment plants with a capacity greater than 3 mgd. C. Each Bidder may be required to show that former work performed by him has been handled in such a manner that there are no just or proper claims pending against such work. No Bidder will be acceptable if he is engaged on any other work which impairs his ability to finance this contract. The Bidder shall demonstrate his ability by meeting all requirements herein stipulated, if asked for them. Lack of experience in successfully completing projects of a similar size with similar complexity may be construed as constituting a non-qualified bidder as determined by the OWNER. 3.02 Bidder is advised to carefully review those portions of the Bid Form requiring Bidder’s representations and certifications. ARTICLE 19 – EVALUATION OF BIDS AND AWARD OF CONTRACT 19.01 OWNER reserves the right to reject any and/or all Bids, including without limitation, nonconforming, nonresponsive, unbalanced, or conditional Bids. OWNER further reserves the right to reject the Bid of any Bidder whom it finds, after reasonable inquiry and evaluation, to be non-responsible. OWNER also reserves the right to waive all informalities not involving price, time, or changes in the Work and to negotiate contract terms with the Successful Bidder. OWNER also reserves the right to reject the Bid of any Bidder if OWNER believes it would not be in the best interest of the Project to make an award to that Bidder, whether because Bid is not responsive, or the Bidder is unqualified or of doubtful financial ability, or fails to meet any other pertinent standard or criteria established by the OWNER. 19.02 More than one Bid for the same Work from an individual or entity under the same or different names will not be considered. Reasonable grounds for believing that any Bidder has an interest in more than one Bid for the Work may be cause for disqualification of the Bidder and the rejection of all Bids in which that Bidder has an interest. 19.03 In evaluating Bids, OWNER will consider whether or not the Bids comply with the prescribed requirements, and such alternates, unit prices and other data, as may be requested in the Bid Form or prior to the Notice of Award. ---PAGE BREAK--- memo Page 8 of 8 19.04 In evaluating Bidders, OWNER will consider the qualifications of Bidders and may consider the qualifications and experience of Subcontractors, Suppliers, and other individuals or entities proposed for those portions of the Work for which the identity of Subcontractors, Suppliers, and other individuals or entities must be submitted as provided in the Bid Form or Supplementary Conditions. 19.05 OWNER may conduct such investigations as OWNER deems necessary to establish the responsibility, qualifications, and financial ability of Bidders, proposed Subcontractors, Suppliers, individuals, or entities proposed for those portions of the Work in accordance with the Contract Documents. 19.06 If the Contract is to be awarded, OWNER will award the Contract to the responsible Bidder whose Bid is in the best interests of the Project. Consideration factors will include conformance with all material terms and conditions of the Contract Documents, Bid price, and other appropriate factors. 19.07 If the Contract is to be awarded, OWNER will give the Successful Bidder a Notice of Award within the time the Bid is to remain open as stated in the Bid form. 19.08 The OWNER reserves the right to accept or reject the Bids, or portions of Bids if denoted in the Bid as separate schedules, and to award more than one Bid or schedule for the same Bid if any of the aforementioned combination of Bids or schedules will be in the best interest of the OWNER. 19.09 The OWNER reserves the right to cancel the award of any Agreement at any time before the complete execution of said Agreement by all parties without any liability against the OWNER. 19.10 If, at the time this Contract is to be awarded, the total of the lowest acceptable Bid Proposal exceeds the funds then estimated by the Owner as available, the Owner may reject all Bid Proposals or take such other action as best serves the Owner’s interests.