Board Members present: Dorothy Anderson, Peter Bartel, and Sandra Bishop. Commissioner Patrick Lanning was excused.
Others present: Randy Berggren, JoAnn Andersen, Tom Buckhouse, Ed Case, Dick Helgeson, Roseanna McArthur, Jim Origliosso, Jim Wiley, and Krista Hince of the EWEB staff; Eric DeFreest, EWEB's General Counsel; and Kim Young, City of Eugene Minutes Recorder..
Board President Dorothy Anderson called the Contract Review Board meeting of the Eugene Water & Electric Board to order.
CONSIDERATION BY THE BOARD, ACTING AS ITS OWN CONTRACT REVIEW BOARD, TO REVIEW THE BID PROTESTS IN CONJUNCTION TO THE CONFLUENCE WELLFIELD PROJECT
General Manager Randy Berggren stated that the Contract Review Board had been requested to review an appeal to the decision he had made that Jensen Drilling was not a responsive driller to the utility's confluence wellfield project. Staff was present to assist the Board in making that determination. He deferred to Eric DeFreest, EWEB's General Counsel, regarding the relevant point of the appeal.
Mr. DeFreest noted that the Board had received all the relevant written materials. He reviewed a decision tree related to the decision. The decision tree included the following questions: 1) was Jensen Drilling a responsive bidder; 2) did the firm submit all the information required to make that determination; and 3) was the firm in substantial compliance with the specifications. He said that technical staff was available to answer questions.
Vice President Bartel asked staff why the firm was not considered a responsible bidder. Mr. DeFreest responded that bid specifications were prepared by the utility's contract engineers and bids were solicited. An opportunity to protest those specifications was given to bidders. The protests were entertained, addendums were issued, and the bids opened. EWEB received four bids. The low apparent bidder was Jensen Drilling, followed by GeoTech, Polk Drilling, and Synder Equipment. The offers were evaluated by the consulting engineers, who recommended that the contract be issued to Jensen Drilling. That intent was issued, and EWEB received a protest from GeoTech's attorney.
Continuing, Mr. DeFreest, said that upon review of the submittal of Jensen Drilling, staff found that two of the arguments made by GeoTech were substantiated and Jensen was found to be nonresponsive. Mr. DeFreest said that Jensen Drilling did not submit a required statement as to whether the company had been terminated from any contracts in the last five years, and failed to submit required information about the project that would qualify the firm for the project.
At the request of Vice President Bartel and using the Jensen Drilling submittal, Mr. DeFreest pointed out the elements of the submittal that were in question.
Mr. Berggren noted that Jensen Drilling had acknowledged in its appeal that the data it submitted for Well 20 pump test data was for the exploratory well. The firm thought the production well had been drilled in the same location as the exploratory well but was now aware that the exploratory well was 100 feet away from the production well, so it was not the same well test.
Responding to a question from Commissioner Bishop, Mr. Berggren said that it could be stated that EWEB made an error when it first awarded the contract because of the wrong information it received from the consultants. Commissioner Bishop questioned whether the omissions were sufficiently material to justify the bid protest. Mr. DeFreest indicated that the lack of signatures on the bid legally illustrated nonresponsiveness. There was also nothing to indicate whether the firm had or had not been terminated, and nothing to indicate the information was accidentally omitted or was forthcoming.
Mr. DeFreest noted that the protesting party must make their protest in writing and state all facts on which they rely. He said that the Board can refer to that document when making its decision.
Commissioner Bishop asked about next steps should the Board determine that the firm was not responsive. Mr. DeFreest said that if the Commissioners agreed that Jensen Drilling was nonresponsive, the firm's protest would be dismissed. The Board of Commissioners would later reconvene and consider the intent to award the contract to GeoTech. He emphasized that the Commissioners were wearing two "different hats" and acting in two arenas, as the Contract Review Board and as the EWEB Commissioners.
Vice President Bartel indicated that, based on the lack of information, he was inclined to reject the appeal.
Commissioner Bishop asserted that there were errors made by EWEB in the process, and she did not think that the firm had received clear directions. For that reason, she felt "awkward" holding the firm to a "letter of the law" process. She suggested that the bid process be reopened.
The Board reviewed the decision tree and concluded that 1) Jensen Drilling was not a responsive bidder; 2) the firm did not submit all the information required to make that determination; and 3) the firm was not in substantial compliance with the specifications.
Vice President Bartel, seconded by President Anderson, moved that pursuant to EWEB Division 30 rules, 030-104, the local Contract Review Board has reviewed the documentation presented by the protester Jensen Drilling to the EWEB Purchasing Manager. Based upon a review of such materials, the Board finds that Jensen Drilling submitted a nonresponsive bid package because it failed to submit material documentation that required ITB 00-02-2002 in the following regard, and we believe that the specific percentage of unconsolidated materials was not provided with a bid response for wells 20 and 22; no well log was provided for Well 20; no pump test was provided for Well 20, and no statement was provided regarding previous determinations for nonperformance on well-drilling projects. These omissions were material in that Jensen Drilling failed to fully submit documentation required by ITB 002-2002, which consequently affected EWEB's ability to compare the bid submitted to other bids of competing bidders.
President Anderson asked Commissioner Bishop what mistakes EWEB staff made to put Jensen Drilling at a disadvantage and caused the firm to fail to submit a responsive bid. Commissioner Bishop said that she did not think that the Contract Review Board could talk about the issues at this point. She said the Commissioners could discuss it when they convened as the EWEB Commissioners as she did not consider the topic relevant to the issue at hand.
Vice President Bartel called the question. The vote to call the question was unanimous, 3:0.
The motion passed unanimously, 3:0.
Mr. DeFreest asked the Board to determine whether Holt Drilling was a responsive bidder. He reviewed the firm's submittal and noted omissions. He indicated, in response to a question from Vice President Bartel, that if the firm had not submitted a responsive bid it had no standing to make a protest.
At the request of Vice President Bartel, Mr. DeFreest reviewed the materials submitted by the firm's legal counsel. He noted the lack of rebuttal from the firm regarding the information not submitted. Instead, the firm's focus was on the insufficiencies of other bid submittals.
Vice President Bartel, seconded by President Anderson, moved that pursuant to EWEB Division 30 rules, 030-104, the local Contract Review Board has reviewed the documentation presented by the protester Holt Drilling to the EWEB Purchasing Manager. Based upon a review of such materials, the Board finds that Holt Drilling submitted a nonresponsive bid package, and because it failed to submit material documentation as required by ITB 002-2002 in the following regard, and the Board believes that no Oregon monitor well constructor license provided per Addendum 1; no statement regarding termination for nonperformance within the past five years; no well logs provided for the four monitoring wells listed on Table 2; and did not write a percentage of unconsolidated materials on its production roll logs per Addendum 1. These described omissions were material in that Holt Drilling failed to comply to submit documentation as required by ITB 002-2002, which consequently affected EWEB's ability to compare the bid submitted to other bids of competing bidders.
Vice President Bartel called the question. The vote to call the question was unanimous, 3:0.
The motion passed unanimously, 3:0.
President Anderson adjourned the meeting of the Contract Review Board.
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Assistant Secretary President