Kenai Peninsula Borough

Special Assembly Meeting Minutes

January 18, 2005 - 10:00 a.m. Special Meeting - Soldotna, Alaska

CALL TO ORDER

A Special Meeting of the Kenai Peninsula Borough Assembly was held on January 18, 2005, in the Assembly Chambers, Borough Administration Building, Soldotna, Alaska. President Superman called the meeting to order at 10:00 a.m.

PLEDGE OF ALLEGIANCE AND INVOCATION

The Pledge of Allegiance was recited.

There were present:

Gary Superman, Presiding

Dan Chay

Paul Fischer

Betty Glick

Ron Long

Milli Martin

Grace Merkes

Chris Moss

Pete Sprague

comprising a quorum of the assembly.

Also in attendance were:

Dale Bagley, Borough Mayor

Kevin Koch, Attorney for the Assembly

Linda Murphy, Borough Clerk

Sherry Biggs, Deputy Borough Clerk

APPROVAL OF AGENDA (10:02:45)

MOTION TO APPROVE AGENDA: Moss moved for the approval of the agenda.

President Superman called for additions, corrections or deletions to the agenda.

MOTION: Moss moved to allow discussion regarding the motion to allow the late-filed affidavit of Roberta Wilfong as the first item of business.

MOTION PASSED: Without objection.

AGENDA APPROVED AS AMENDED: Unanimous.

President Superman read the statement of proceedings regarding hearing procedures. Mr. Stefanski asked for additional presentation time. President Superman granted an additional 10 minutes of presentation time to the appellant and the borough.

President Superman noted the borough had filed a motion to allow a late-filed affidavit from Roberta Wilfong. The appellant, John Stefanski, submitted a written letter of objection. President Superman granted each party five minutes to present their arguments.

(10:09:02)

Borough Attorney Colette Thompson stated the Spruce Bark Beetle Program Manager, Roberta Wilfong, was out of town during the time period for filing an affidavit. Ms. Wilfong was still on the east coast due to a family emergency. Attorney Thompson requested the assembly adopt the doctrine of substantial compliance and accept the late-filed affidavit of Ms. Wilfong. Attorney Thompson said allowing the late-filed affidavit would not prejudice the appellant's case.

Assembly Member Merkes asked about contacting Ms. Wilfong. Attorney Thompson said Ms. Wilfong had left town for a family emergency and did not provide any contact information prior to leaving.

Assembly Member Long asked for the specific code provision to allow for the late-filed document. Attorney Thompson said there was no specific language in the Borough Code.

Assembly Member Sprague asked if Ms. Wilfong was aware of the filing deadline when she left town. Attorney Thompson was not certain.

Assembly Member Martin asked if Ms. Wilfong had received the certificate of mailing dated December 29, 2004. Attorney Thompson could not answer on Ms. Wilfong's behalf.

(10:17:50)

John Stefanski of Skookum Construction & Tree Service said he was required to meet all deadlines and felt the borough should be held to the same standards.

Assembly Member Moss asked if severe weather conditions would warrant issuing an extension to a contract. Mr. Stefanski said an existing contract could be amended due to an act of God, but a bid was a different matter. Mr. Stefanski said in his dealings with both state and federal agencies neither accepted late-filed bids.

(10:21:08)

MOTION: Moss moved to accept the late-filed affidavit of Ms. Wilfong as presented by the borough.

MOTION: Long moved to recess into adjudicative executive session.

MOTION PASSED: Unanimous.

[Clerk's Note: The assembly recessed into executive session at 10:26 a.m. and reconvened at 10:32 a.m.]

MOTION: Sprague moved to reconvene the special assembly meeting.

MOTION PASSED: Unanimous.

(10:34:36)

VOTE ON MOTION TO ACCEPT AFFIDAVIT:

Yes: Merkes

No: Chay, Fischer, Glick, Long, Martin, Moss, Sprague, Superman

Absent: None

MOTION FAILED: 1 Yes, 8 No, 0 Absent

APPEAL HEARING (10:35:55)

Appeal of Mayor's Decision regarding award of a contract for the following Spruce Bark Beetle Mitigation Projects:

PRESENTATION BY THE APPELLANT [25 Minutes] (10:35:55)

John Stefanski, owner of Skookum Construction & Tree Service , referred to Mayor Bagley's letter (Page 239) which said the due date was extended to November 30 only after multiple requests had been made. Mr. Stefanski received a phone call after the bids were submitted and received by the first due date and was told an addendum was to be expected. Mr. Stefanski said he phoned the Spruce Bark Beetle (SBB) office prior to submitting his bid and asked if there were any addenda to be aware of. He was told there were no addenda. Mr. Stefanski said all the contractors had two weeks to prepare bids and the original due date should stand.

Mr. Stefanski requested a new quote form from the SBB office but never received anything. Mr. Stefanski acknowledged the fact his fax machine was busy on November 23, but not on November 29, 2004. Mr. Stefanski referred to Page 208 and said the quote tabulation sheet did not show that addenda had been acknowledged by the bidders. Mr. Stefanski said he did not have the new quote forms to submit by November 30, as the original request for bids was cancelled. Mr. Stefanski did not see any management plans from the bidders in the evidence submitted. Mr. Stefanski had also asked the borough clerk to supply a copy of the low bidder's contract.

Mr. Stefanski said the letter from Ms. Wilfong (Page 113) showed that the projects were available for quotes beginning November 12 and the last day to submit quotes was November 22. Ms. Wilfong noted one contractor had complained that he did not have sufficient time to bid as he may not have received all the bid documents via fax. Mr. Stefanski had spoken with Mark Fowler after the deadline had been extended.

Mr. Stefanski said one of his bids was stamped November 23, 2004 (Page 215) and did not understand as his other bids were correctly stamped November 22, 2004. Mr. Stefanski had a copy of the bid sign up sheet and said there were plenty of contractors who responded and took out bids.

Mr. Stefanski did not see what the borough gained by extending the bid to allow one contractor additional time for submittal. Mr. Stefanski said he was the second place bidder on some of the projects and felt that the low bidder had not submitted the proper documents. Mr. Stefanski said he should be awarded the projects.

(10:51:43)

Assembly Member Moss asked about Addendum #1. Mr. Stefanski said the addendum changed the bid due date and said to submit a new quote form if you were changing your bid. Mr. Moss asked if a party could resubmit a bid before the due date-if a math error was noticed. Mr. Stefanski said on some jobs it could be done but he did not know on the SBB projects.

Assembly Member Long asked Mr. Stefanski if he was the low bidder on any of the projects. Mr. Stefanski said he was not and stated the low bidder had not submitted a management plan or acknowledged the addendum. Mr. Long asked Mr. Stefanski if he knew this was a quote and not a formal bid process. Mr. Stefanski did not know the difference between informal and formal bids.

Assembly Member Sprague said the date stamp shown on Page 215 appeared to read November 22, 2004. Mr. Stefanski compared the date stamps on Pages 227 and 215. Mr. Sprague asked for clarification from Mr. Stefanski on his statement that the bid for November 22 was cancelled. Mr. Sprague thought the deadline was simply extended. Mr. Stefanski said bids were accepted and stamped on November 22 and an addendum was issued after that on November 23. Mr. Sprague asked again if the bid was cancelled or extended. Mr. Stefanski said he understood the bid to be cancelled. Mr. Sprague referred to the mayor's letter (Page 239) which stated, "...no contractor was given an unfair competitive advantage due to its issuance." Mr. Stefanski said one of the inspectors had two brothers also bidding on the jobs and wondered who had access to bids faxed to the SBB office.

Assembly Member Fischer noted Mr. Stefanski's original bid, date stamped November 23, still qualified as a bid for the November 29 deadline. Mr. Stefanski said he never received new quote forms.

Assembly Member Martin said the date stamps on Pages 215 and 233 appeared to read November 22. Ms. Martin asked if Mr. Stefanski intended to resubmit a new quote. Mr. Stefanski replied in the affirmative. He understood, according to Addendum #1, that a new quote was required.

Assembly Member Long asked about the references to dishonored borough employees. Mr. Stefanski said bids were faxed to the SBB office and wondered if bids were properly handled. Mr. Stefanski again said he did not receive the additional items he requested in order to submit a new quote. Mr. Stefanski did not believe he needed to make a follow-up phone call to see if his written request was received. Mr. Stefanski stressed the addendum acknowledgment was required by all bidders.

Assembly Member Glick asked about the comment that the low bidder did not submit a management plan. Ms. Glick asked Mr. Stefanski if he offered a management plan. Mr. Stefanski replied in the affirmative.

Assembly Member Chay referred to Pages 215 and 228 and discussed the poor quality of the date stamps. Mr. Stefanski said that was not a big issue. Mr. Stefanski said the biggest issue was that he did not receive the documents to submit a new bid. Mr. Chay asked if a "new bid" was the same as a revised quote mentioned on Page 192. Mr. Stefanski referred him to the wording in the contract. Mr. Chay asked about Mr. Stefanski's references to $100,000 and $1,000,000 damages due. Mr. Stefanski stated $100,000 was three times the contract amount and if commerce was impeded the fine was $1,000,000 per day. Mr. Stefanski said his intent was not to go to court, but to go to work.

(11:08:17)

Assembly Member Moss asked about Mr. Stefanski's experiences with bid extensions due to addenda. Mr. Stefanski said addenda were always issued before the due date, not after.

PRESENTATION BY THE BOROUGH [25 Minutes] (11:14:14)

Colette Thompson, Borough Attorney, said the SBB office simply extended the deadline to receive quotes under the informal Request for Quotes (RFQ) process. Attorney Thompson said reasonable steps were taken to ensure a fair process and to solicit numerous quotes. East Road Services had complied with all requirements of the solicitation.

Ms. Thompson stated on November 11 , 2004, the SBB office issued faxed notices to 27 contractors of three pending RFQs. The documents were to be available on November 12 with a due date of November 22, 2004. Ms. Thompson said a management plan was not required per the terms of the RFQ. There was reference to a required management plan (Page 31) for working on multiple project lots concurrently. It did not refer to working on several projects at once. The RFQ did address such situations for allowing one contractor to work on several projects by stipulating the project end dates (Page 30).

Ms. Thompson noted the RFQ was an informal process under KPB 5.28.270 for projects under $15,000. This allowed the borough to solicit quotes without the requirement to advertise or follow other code requirements for formal. Ms. Thompson stated no competitive advantage was given to any single contractor.

Ms. Thompson referred to Pages 80 and 81, which showed nine contractors requested quote documents. On November 19, 2004, one contractor notified the SBB office that he did not received the complete documents via fax. The documents were faxed again to that contractor; he phoned back and said he did not have enough time to prepare the quotes. The SBB office wished to comply with the principles of the purchasing code and wanted to solicit as many quotes as possible without violating the competitive bid process. The deadline was extended to November 30. The SBB office attempted on contact all bidders on November 23 regarding Addendum #1. Ms. Thompson said nothing in Borough Code prohibited issuing an addendum and the SBB program director was within her rights to extend the deadline.

Attorney Thompson said when Mr. Stefanski called the SBB office and asked if there were any addenda, it was very likely the addendum had not yet been discussed. The SBB office attempted 11 times to fax Mr. Stefanski the notice of the addendum. SBB personnel phoned Mr. Stefanski and told him they were trying to send an addendum and explained the difficulty with his fax machine. Mr. Stefanski told them to keep trying and eventually the fax connected.

After the addendum had been faxed, Mr. Fowler spoke with Mr. Jones of East Road Services and Mr. Stefanski. Both bidders expressed their displeasure with the extension. Mr. Fowler explained to them that another contractor was told there would be an extension and chose not to file his bid by the original deadline.

Ms. Thompson noted that Mr. Stefanski filed numerous documents with the SBB office objecting to the extension and seeking additional information. There were many faxes and phone calls between Mr. Stefanski and the SBB office. Attorney Thompson said it appeared that Mr. Stefanski thought the first RFQ was cancelled and that a second request was issued. There was only one Request for Quotes and the deadline was simply extended. The original quote or a revised quote were acceptable.

Ms. Thompson stated there was no dishonorable conduct by the SBB staff. Mr. Stefanski requested copies of information while the quote process was still open and was told it violated competitive bidding principles. Information was made available after the quotes were opened and awarded.

Ms. Thompson referred to Mr. Stefanski's memo on Page 121 dated November 22, but submitted to the SBB office on November 26. The SBB office did open and accept his original bids following the November 30 deadline. Attorney Thompson said reasonable efforts were made by the SBB office to respond to Mr. Stefanski's questions. Ms. Thompson said perhaps Mr. Stefanski was confused with the informal and formal bid process. Ms. Thompson said there was only one bid opening.

Ms. Thompson discussed Mr. Stefanski's memo (Page 174) in which he believed his quotes had not been considered. Ms. Thompson said there was no basis for claimed damages. Mr. Stefanski was not the low bidder on any of the projects. No other contractors had trouble understanding that the addendum was only an extension of time.

(11:39:25)

Assembly Member Long asked why there was no information regarding the addendum acknowledgment check off list (Page 154). Attorney Thompson said most of the bids were submitted and received prior to the issuance of the addendum and it was not required. Mr. Long asked if a bid revision form was required to make any changes to a submitted bid. Attorney Thompson said the same form was required but was to be marked "Revised Quote." Mr. Long asked if Mr. Stefanski's earlier bids were accepted without an acknowledgment to the addendum. Ms. Thompson replied in the affirmative. Mr. Long asked if any revised quotes were submitted. Ms. Thompson said there were two revised quotes, but the results of the awards did not change.

Assembly Member Sprague asked about the bidding process in relationship to the purchasing office and the SBB office-why was Mr. Fowler concerned about the extension. Mr. Fowler was concerned that someone could have received an unfair advantage and was trying to preserve the integrity of the process. It was learned that an SBB staff member told a contractor that an extension was forthcoming. Ms. Wilfong had granted the extension on her own accord without consulting the legal department or the purchasing officer. Mr. Fowler said it was well within her authority as this was an informal process. Mr. Sprague asked in light of the SBB office contacting over 45 contractors and receiving only one complaint regarding lack of quote documents, was it desirable to issue an extension. Attorney Thompson replied in the affirmative.

Assembly Member Glick asked about the addendum issued after the original due date. Attorney Thompson said it was not normal but was allowed under the informal quote process. Ms. Glick sought clarification on the contractor who asked for the extension. Attorney Thompson confirmed he was not the winning bidder. Ms. Thompson responded to the discussion of faxing in quotes and said it was allowed under the informal process.

Ms. Glick also asked about change orders to quotes. Mr. Fowler said bids typically went to the lowest qualified bidder. There was a potential for a change in conditions or scope of work and change orders could occur. Ms. Glick referred to Page 216 and realized it reflected unofficial results but expressed her concern that there were no check marks throughout the document regarding tax compliance, business license and bid signing. Attorney Thompson said the official result documents were not available when the record was submitted. Ms. Glick said it appeared there were misunderstandings by both Mr. Stefanski and Ms. Wilfong.

Assembly Member Fischer asked about the differences in the bid amounts shown on Page 226. Mr. Fowler said on bid tabulations with large disparities he contacted the bidders personally and did contact Mr. Jones. Mr. Jones indicated he was comfortable with his numbers and had visited the site. Mr. Fowler again stated change orders would occur only if the scope of worked changed.

Assembly Member Merkes asked about the numerous faxes and phone calls to Skookum Construction on November 23. Ms. Thompson said it was her understanding that Mr. Stefanski was informed that the SBB office was trying to fax an addendum extending the deadline.

Assembly Member Moss asked if a bidder could submit a sealed bid under an informal bid process. Attorney Thompson replied in the affirmative.

PRESENTATION BY SUCCESSFUL BIDDER (12:04:22)

Buck Jones, Vice President of East Road Services, Inc. had prepared the bids and understood that tabulation would occur after November 22. Mr. Jones received a fax on November 23 advising him the deadline had been extended to November 30. Mr. Jones said he was upset and called Ms. Wilfong. He felt it was favoritism toward a bidder who could not submit in time. Mr. Jones also spoke with Mr. Fowler who explained the difference between the formal and informal process. Mr. Fowler also told him of the contractor who learned of the extension and chose not to submit his bid on November 22. Mr. Jones called his attorney and asked about his recourse. Mr. Jones learned that since it was an informal Request for Quotes the borough was not held to competitive bid standards. In fact, a quote was not a bid. Mr. Jones would have to show financial harm for any recourse. Mr. Jones asked for a list of all contractors who submitted quotes by November 22. Ms. Wilfong informed him the information could not be released until the bid process closed on November 30. Mr. Jones accepted the advice of his attorney.

Mr. Jones noted he submitted signed addendum acknowledgments (Pages 259, 260 and 261). Mr. Jones said no management plans were required. Mr. Jones said his bid amounts were based on the fact the Lower Kenai Peninsula had little snow and the ground was frozen solid, making it very easy to log in such conditions.

(12:11:33)

Assembly Member Long asked Mr. Jones if he had difficulties understanding the quote process. Mr. Jones said he read the documents carefully and fully complied with all requirements. Mr. Jones understood the intent of the addendum. Although he did not agree with it, he signed the acknowledgment.

Assembly Member Sprague asked about Mr. Jones' conversation with Ms. Wilfong. Mr. Jones was told the SBB office had been having trouble with their fax machine and a contractor informed the office on November 19 that he did not receive the complete information for bidding the project. Ms. Wilfong had stated her reason for extending the deadline was to allow the contractor the opportunity to submit a quote. Ms. Wilfong's day off was Monday, November 22, and so the addendum was issued the following day after the original submittal date. Mr. Jones did not agree with her actions but stated Ms. Wilfong was well within her right to issue the addendum.

QUESTIONS BY ASSEMBLY (12:14:55)

Assembly Member Chay asked about the "cancelled" bid. Mr. Stefanski stated he had asked for the documents to rebid, but nothing was sent and the bid was cancelled. Mr. Stefanski sent his written questions to the SBB office by noon on November 29 but did not receive an answer. Mr. Stefanski never received information to submit a revised quote. He received the addendum which extended the bid time but did not get the specific documents he requested.

Assembly Member Glick asked Ms. Thompson if the acknowledgment was an absolute requirement. Ms. Thompson said it was a waiveable requirement by the purchasing officer.

ASSEMBLY DELIBERATIONS AND DECISION (12:20:15)

MOTION: Moss moved to recess and deliberate in executive session.

MOTION PASSED: Unanimous.

[Clerk's Note: The assembly recessed into executive session at 12:20 p.m. and reconvened at 1:30 p.m.]

MOTION: Moss moved to reconvene the special meeting.

MOTION PASSED: Without objection.

(1:30:52)

MOTION: Long moved to uphold the mayor's bid award to East Road Services, Inc. for the Sterling Highway NE #1, #2 and #4 Right of Way Projects in the Anchor Point area.

MOTION TO UPHOLD AWARD PASSED: Unanimous.

President Superman stated a written decision with findings would be available in the Clerk's Office in ten days.

ADJOURNMENT (1:31:33)

President Superman adjourned the special meeting at 1:31 p.m.

I certify the above represents accurate minutes of the Kenai Peninsula Borough Special Assembly meeting of January 18, 2005.

 


Linda S. Murphy, Borough Clerk

Approved by Assembly: