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HomeMy WebLinkAboutRESOLUTION 1985-108!' ,q moo. _ -- _ Suggested by: Administration CITY OF KENAI RESOLUTION N0. 85-108 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ACCEPTING A BID FROM HUTCHINGS CHEVROLET FOR iW0 POLICE CARS. WHEREAS, on October 31, 1985 at 10:00 a.m. bids were opened for two police cars, as follows: Bidder Total Amount Hutchings Chevrolet $25,087.36 Peninsula Ford $25,473.20 Craycroft Chrysler $24,654.90 WHEREAS, the bid from Craycroft Chrysler was received after the deadline of 9:00 a.m. on the bid day, and therefore is not considered a valid bid; and WHEREAS, the remaining two bids both meet the specifications, and Hutchings Chevrolet is the lowest responsible bidder. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that the bid from Hutchings Chevrolet for two police cars in the amount of $25,087.36 be accepted. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this 20th day of November, 1985. ` ~ f/~ Tom Wagoner, or ATTEST: Q~~ ~ J~fet Whelan, City Clerk Approved by Finance: _ q~ 11/15/85 - - _ ,~~r~ ~~, -. ,, . r .~ ~i { MEMO T0: Renai City Council { FROM: Charles A. Brown, Finance Director ~,G~ DATE: November 14, 1985 - : . f SUBJECT: Palice Car Bids ' ~ Attached are a memo from Rick Ross and an opinion from the --'-~ City Attorney. The Chief's recouanendation is to award the '- ',""f bid to Craycroft Chrysler. The Attorney's opinion is, essentially, that it is within our discretionary powers to waive the irregularity of late filing by Craycroft. Note that it is not the Attorney's opinion that we must waive ~- ~-; this irregularity. ,`~~ While I am unable to challenge the opinion on legal grounds, I do feel I am able to challenge the policy of waiving such ,, ~ ~ irregularities. --.-- The City has in the past rejected bids that were received u late. I have done it and Jack LaShot has told me that Public '; Works has done it. The notice that all bids must be received .: by 9:00 am on 10-31-85 to be considered was advertised and . i included is the bid package. Z believe it is bad policy ~ to consider a late bid. In my mind, it is no bid at all. i I have drafted the resolution awarding the bid to Hutchings Chevrolet. .> :; - ,t ~, ;~t '' 4~ . ~ ~~?: ,~ "~ ~ ~. i 4 f .'{ 1 $" .r . ; ---- f1 .i; - =~; ~~' "- "E •. f" ~'•~ " . (, 1. ~: i i ;: r' '. ii t,.~ 1 ~~~ W : '~ ~; ~: 4. ~~ "~ s' ~~: : ' I I , ,~;,• ,:'~ f ~~, 4 ~. ,. KENAI POLICE DEPT. ~, 107 SOUTH WILLOW 8T., KENAI, ALASKA 99611 TELEPHONE 283-7879 To: William Brighton, City Manager From: Richard Ross, Chief of Police Subject: Award of Police Car bid Date: 11-14-85 Request a resolution be prepared awarding the purchase of two (2) 1986 police cars to Craycroft Chrysler. Craycroft Chrysler was the lowest bidder and their bid, as well as the other two l~tds, did meet the specifications advertised. The bids received were as follows: Bidder Total Bid (2 cars) 1. Craycroft Chrysler 24,654,90 2. Hutchings Chevrolet 25,087.36 3. Peninsula Ford 25,473.20 In awarding the bid to Craycroft Chrysler, it is being recommended that two minor irregularities be waived. 1. Craycroft Chrysler's bid was received at 9:SOam and not at 9:OOam as was advertised. The bid was received prior to the 10:00am advertised bid opening, (see attached Invitation to Bid advertisement). All three bids were rhea opened at the 10:00am advertised opening time. 2. Craycroft Chrgsler'sbid was not signed. Mr. Craycroft signed the bid on 11-13-85 at 2:20pm. The signing was delayed until then pending receipt of a legal opinion on this matter. Having been advised of the Iate bid reception, I advised City Clerk Whelan, and Communications Supervisor Ruesch to open aII bids, including Craycroft Chrysler's. After opening, the bid package was then submitted to the City Attorney for review. Attached is a copy of the legal opinion submitted by the City Attorney on this matter. Based on the circumstances cited and review of the City Attorney's legal opinion, (copy .. attached), it is reccmmended that the bid be awarded to Craycroft Chrysler. The waiving of these two minor deficiencies does not result in unfair advantage to Craycroft Chrysler nor disadvantage to the other two bidders. Sincerely, "% i `'. , ~,•~ Ricfiar A: Ro s'~ Police RAR:kh Attachements: a) Bid Opening Tabulation b) Advertisement for Bid c) City Attorney opinion, dated 11-12-85 i a -~rare~r~....~._ _ ..~. :; ~ ATTACHMENT "A" 13ID OPl•NING :fAUULATION ,~ $id Item: _~ c~~, _ 'I'imc: 1D ' U O)"~ Location: ____C.(. i Datc: / D - 3~ -" ~ 5~ 0 iA1PANY AND RI;PR$SIiNTATIVR SID PRICE ~~ /a 73.6, 6 0 a y y73, a 0 1 ~ ~~y3, 68 ~~i~~w~ ~ a ~ a s> o ~ ~ 3 ~ ~ I /a 3a 7 i/~ i i ;~ ~ ;q~~R 1 „ot .re ~ ~ 9 '~ sti R-M b;dt s o~~ to~'Q° ~~ ~ -- I ," , i .-~ , ~ ATTGNdIItG: 1 ~L i s .::- INVITATION TO BID ATTACHMF,NT "B" i The Citq of Kenai is soliciting bids for two (2) 1986 4-door police j Package sedans. Bid specifications are available through the City Clerk's office at Kenai City HaII, or can be obtained by writing to the City Clerk at 210 Fidalgo Street, Kenai, Alaska 99611. Bid opening is scheduled for 10:00 a.m., October 3lst, 1985. Sealed bids, marked "Police Car Bid" on outer envelope, must be received at the City Clerk's office bq 9:00 a.m., October 3I st, 1985 ~ in order to be considered. ' •ti'-,+ -` ' }~" .M)YfTAiiON TO B)D ' -~ 4 7 1 1'hs CRy c? Kenai is pbids for two (2) 1x88 4~door• ) ~ Ups C,~y-CieAc'a oifke at ~ ar° avauaDte tlv'°uph I CdY HaU, a can bo obtahed by ~ . ; •weaoa to ar ~ t~«tc at x1o Fiaatpo se-~eeb Kenstl, ~. t 99811 _8id b . ~ -.1988~~;~~~..yyp.~~~ ~ed~l/a~d~lor tO:OC~aytn~., Octo_ber3Ut. '~ ~ • ~~swRt !"{IwY \Iff ~QA W\~f •~ ~• µ ' - j~ 1 berooNwdattneC~ytXerk'sollloepy9cooam.,p3~ 1 t 198b to ender to a oonsideed• - ! PususH: tor9, la ~, t9aa., -;> • _. X11 I' ~. ATTACHMENT "C" CITY OF KENAI Z10 FlCALQO KENAI, ALA8KA DD611 TELEPHONE283.7636 MEMORANDUM FRO ~ Tim Rogers, Attorney City of Kenai T0: Linda Ruesch, Dispatch Supervisor City of Kenai GATE: November 12, 1985 RE: Police Car Bid BACKGR0l1ND Recently, the City put out to bid a contract for two new police cars. The three bids received were from Peninsula Ford, Hutchings Chevrolet, and ~ray~roft Chrysler. Craycroft Chrysler was the low bidder with $12,327.45 per unit. There were some irregularities in Craycroft's bid. The bid was not signed and it was receivtgd ten minutes before the time Lhe bids were opened (SO minutes late). The question presented is whether the City may waive the defects in Craycroft's bid and accept them as the low bidder or whether the City must accept the second lowest bidder. POINTS AND AUTHORITIES The first point of inquiry is the Kenai Municipal Code (KMC). KMC 7.15.040 controls competitive bidding. Subparagraph (e) of this ordinance provides: "that the purchasing authority may repeatedly reject all bids and again may submit to the same or other persons, firms, or corporations, a request for quotation (or invitation to bid) and/or again publish notice of the proposed purchase." 1 ~.s~ _ - _ _._~ _ I The ordinance does not provide for waiver of defects in the bidding process, aside from this complete rejection of all bids. Because the KMC does not provide for waivers, one must look to Federal, State or common law to see whether waivers of defects may be acceptable. The general rule is that when a bid does not conform to the specifications, the bid is non-responsive. The U.S. Comptroller General has expressed a rule of responsiveness in these terms: "the test to be applied in determining the responsiveness of the bid is whether the bid is submitted as an offer to perform, without exception, the exacting thing called for in the invitation, and upon acceptance will bind the contractor to perform in accordance with alI the terms and conditions thereof. Unless something on the face of the bid, or specifically made a part thereof, either limits, reduces or modifies the obligation to perform in accordance with the invitation, it is responsive." 49 Comp.Gen. 553, 556 (1970). An important exception to the above rule is that minor irregularities and formalities in a bid will not render it non-responsive. FPR 1-2.405 far example, defines the parameters of this rule: "A minor informality or irregularity is~one which is merely a matter of form and not of substance or pertains to some immaterial and consequential defect or variation of a bid from the exact requirement of the invitation for bids, the :' correction or waiver of which would not be prejudicial to other•bidders. Defect or variation in the bid is immaterial and inconsequential when its significance as to price, quantity, quality, or delivery is trivial or negligible, one contrasts it with the total cost or scope of the supplies or services being procured." ~~~; The contracting officer shall either give the bidder an '" opportunity to cure any deficiency resulting from a minor informality ar irregularity in a bid or waive such deficiency, whichever is to the advantage of the government. °~> ; Under FOR 1-2.405, examples of minor informalities or j:1 ;, irregularities include: A failure of a bidder to sign his bid, but only if, 1) the unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned bid ~. document, such as the submission of a bid guarantee or letter signed by the bidder with the bid referring to and clearly identifying the bid itself; or 2) the firm submitting the bid has :_~t-r formally adopted or authorized, before the date set for opening of bids, the execution of documents by typewritten, printed, or ~~ stamped signature and submits evidence of such authorization and ~ `-. the bid carries such a signature. 2 ~; f; k~ -~ • _ These are federal opinions. The State of Alaska has also had an opportunity to address minor technical defects fn bids. It is generally been held in Alaska that a minor technical defsct or irregularity which does not and could not affect the substance of a low bid in any way does not justify the rejection of that bid on the ground that it is non-responsive, when the agency is required by law to award the contract to the lowest responsible bidder. Chris 8er Inc. v. State De artment of Trans ortation and Public facilities, 6 P.2d. 93 Alaska 1984 . It was also noted in the Chris Berg case that the determination by the public agency of the responsiveness of the bid is usually within the agency's discretion and subject to ,judicial review only to ascertain that there is a reasonable basis for the agency's action. Cases outside the State include a Washington court which ruled that where there was an omission of a signature on the bid proposal but the signature was included on the bid band submitted as part of the bid, the City could waive the defect. East Side Disposal Company v. Mercer Island, 513 P.2d 1047 (WA 1973 . It is s:sa been held that a municipal body may waive minor irregularities in submission of bids in furtherance of his duty to secure the lowest responsible offer. Bryan Construction Com an Inc. v. Board of Trustees of Free Public Librar of the Town of Montclair, 106 A.2nd 303 JN 1954 In Interstate Power Company v. Incorporated Town of Metre or, 296 N.W. 770 Iowa it was held that an improperly signed bid could be disregarded. But in the Pe~neylvania case, White Marsh TP Authorit v. Fineili Bros., Inc'., 184 A.2nd 512 PA 1962 , an unsigned bid of a corporation was declared void, but only after the bidder refuseu to perform. The Court noted that there was not mutuality of obligation, hence no contract. ~) DISCUSSION . ~ ( The instant problem can be separated into the two irregularities: `~ 1) the failure to sign, and 2) the failure to submit on time. • The latter is the simpler of the two and will be addressed ~; first. ;~ E' 1. May the City waive the technical der'ect that the bid was not timely filed? Clearly, this is a minor irregularity because the bids were all ;` opened at the same time. If the other bids had been opened first, that would have given the low bidder an advantage which __,~_ would compel rejection of the low bid on fairness grounds. This 3 ~~ F 1 ll, ~ . defect does not affect the substance of the bid. I would conclude that this defect may be waived because to do so does not affect the substance of the bid or raise questions of unfair advantage. 2. May the City xaive this technical defect that the bid was unsigned? This is a more difficult question. as suggested in the Finelli case, an unsigned bid does not impart mutuality of obligation and hence may not result in an enforceable contrr t, especially fn. this case where no bid bond or anything else _ndicates an intent to bind the parties. In a large construction project, this may be a problem, but in this case the City could simply r~-bid the contract if Craycroft refused to perform. From a legal standpoint, however, ft would seem that this irregularity would be unable to be waived absent more facts. If the City were to follow the Federal example, the City would be able to obtain the best deal from the City. Under ti~3 Federal model, the bidder is given a chance to correct the minor irregularity. Because this does not go to the substance of the contract, it cannot be said that any one bidder has obtained an advantage over the other. Keeping in mind that the City has a duty to obtain the best value for its citizens, the Federal approach, which would allow Craycroft a chance to sign the bid, would appear to provide the best solution. The bottom line as pointed out in the Chris Ser case, is judicial review. Because the City has a reasonable basis far allowing Craycroft to cure its one defect and waive the other, and because the action is discretionary, a reviewing court will be unlikely to overturn the City's decision. Even if the Court did re3ect.the City's actions, the disappointed bidder would probably only be awarded the costs of preparing the bid, which in this case likely did not run too high. CONCLUSION Federal, State and Common Law alI provide for waivers of minor irregularities in bids which da not affect the substance of the bids. In this case, a waiver of the failure to timely file is permissible. In addition, the bidder should be allowed to cure the lack of signature absent other documents indicating an intent to be bound. Finally, and most importantly, such actions are within the City's discretionary powers and not likely to be overturned by a reviewing court. TJR/clf 4