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Agenda 11/13/2012 Item #11G
11/13/2012 Item 11.G. EXECUTIVE SUMMARY Recommendation to uphold the protest decision denying Poole & Kent Company of Florida's formal protest regarding award of Invitation to Bid (ITB) #12 -5952, Aerated Sludge Holding Tank (ASHT) /Flow Equalization Tank (FET), Project 70091. OBJECTIVE: To determine the final resolution of the formal protest decision issued by the County's Purchasing Director (adopted by the County Manager), and subsequent objection by Poole & Kent Company of Florida (Poole & Kent), in order to finalize solicitation recommendation for TB #12 -5952 Aerated Sludge Holding Tank (ASHT) /Flow Equalization Tank (FET) at the North County Water Reclamation Facility (NCWRF). CONSIDERATIONS: On June 24, 2008, as Agenda Item 10G, the Board of County Commissioners (Board) adopted the 2008 Wastewater Master Plan Update that identified the requirement for upgrading the NCWRF. This project is consistent with the 2008 Wastewater Master Plan Update, Project 73950, "NCWRF Bridge the Gap — User Fee" as shown in Section 8, Table 8 -2, Page 3 of 5, Line 91; and, with the 2010 Wastewater CIP Update, Page 2 of 4, line 77, as identified in the 2011 User Fee Rate Study. Subsequently, this specific phase of the project was assigned a new project number (70091) for easier tracking and accounting purposes. The existing ASHT in the Oxidation Ditch (initial) treatment side of the NCWRF was built in approximately 1976 and is at the end of its useful life. It is a component of the current permitted 24.1 million gallons per day plant treatment capacity. It is a dilapidated, non - functioning steel ring tank that is severely rusted, has deteriorated past the point of its service life, and is thus out of service. Construction of the new ASHT /FET will allow demolition and removal of the out of service tank and associated retired appurtenances, and will provide plant operators a more reliable and sustainable means to stabilize and hold sludge until it can be returned into the process for further treatment. The new tank will aid in overcoming the hydraulic challenges that the operators face daily. The new tank can also be used for the future to equalize the incoming wastewater flows so as to not overwhelm the plant during peak flow periods. Construction of this tank is a conditional requirement of the NCWRF Florida Department of Environmental Protection (FDEP) operating permit and was a negotiations condition and regulatory commitment from the county to the FDEP to be released from the 2006 FDEP consent order. Included in the scope of this project are the replacement of equipment and appurtenances that are beyond their useful life, including a new ASHT, a new blower structure, new odor control and associated ducting, demolition and removal of the old dilapidated grit structure, demolition and removal of the old electrical building that no longer meets the electric codes and is under the flood plain, and demolition and removal of the alum tank and foundation that is no longer in use. Odor control and landscaping are included to meet the standards of, and to ensure compliance with, the good neighbor policy. The Purchasing Department certified that notification for the attached solicitation #12 -5952 NCWRF ASHT /FET was advertised to approximately 1,693 registered vendor email addresses on July 20, 2012, and closed for submittals on August 22, 2012. 85 solicitation packages were downloaded; there were two (2) submitted responses; zero (0) "no- interest" responses; and zero (0) were deemed non - responsive. The order of the contractors by lowest to highest submittal was: Firm Name Location Offer Poole & Kent Company of Florida Miami $6,307,000.00 Mitchell & Stark Construction Co. Naples $6,314,775.00 Packet Page -653- 11/13/2012 Item 11.G. The Poole & Kent Company of Florida appeared to be the lowest responsive bidder at the time of bid submittal. The firm declared themselves as a local vendor under the Board's Purchasing Policy (XI. Preference to Local Businesses in Collier Contracts). After further review by the Purchasing staff, and in consultation with the County Attorney's Office, it was determined that the Poole & Kent Company of Florida (address as identified on the affidavit as 1200 Kismet Parkway West, Cape Coral, FI 33993): • Submitted a completed and notarized Affidavit for Claiming Status as a Local Business, indicating that 128 employees are employed in Collier and Lee Counties since 2006 and 73 of those employees live in Collier and Lee Counties; • Is registered with the State of Florida Division of Corporations with their principal address in Miami, FL; • Is registered with Lee County Tax Collector (business tax receipt available) and is not registered with the Collier County Tax Collector; • Has not made payment to Lee County for real property or tangible property taxes; and • Identified a property address (on the Affidavit) owned by the City of Cape Coral. The Purchasing staff confirmed with Poole & Kent by telephone that their trailer was on the City of Cape Coral property site. The Purchasing staff determined that the Poole & Kent Company of Florida did not meet the conditions of the Board's Policy on local vendor preference based on the facts above, and the decision made by the Board on March 9, 2010 (Agenda Item 10D) where similar facts were presented. (in that instance, the apparent lowest responsive bidder [Cardinal Construction] operated a construction trailer on Marco Island, claimed "local preference," and employed Collier County residents; however, the company's registration with the State of Florida Division of Corporations demonstrated a principal address in Sarasota, FL, and the company did not provide evidence of a business tax license. In consideration of the facts that led to the final decision, the Board considered that Cardinal Construction lacked a "permanent" physical business address and that the company had not paid real property or tangible property taxes to the County. In summary, the Board determined that there was not significant evidence of a contribution to the local economy.) In this current case, the Purchasing staff offered Mitchell & Stark the "right to match" the lowest responsive non -local offered price, and received evidence of their acceptance, along with a copy of their "Drug- Free" affidavit. The Purchasing Department publicly announced the recommendation of award to Mitchell & Stark on August 28, 2012; subsequently Poole & Kent filed an award protest on September 6, 2012. The Purchasing Director considered the allegations and facts proffered by Poole & Kent's attorney (Arnstein & Lehr), including the review of each of the bidders notarized Affidavits for Claiming Local Vendor Preference. The Poole & Kent Affidavit for Claiming Status as a Local Business appears to contain false information intended to establish the company as a "local vendor" because it identified a local address of 1200 Kismet Parkway West, Cape Coral, FL 33993, which doesn't, and hasn't, had any type of structure on site; either permanently affixed, or a temporary construction trailer, from which to conduct business for a very long time. This information was obtained from the Lee County property records; City of Cape Coral Utilities department's aerial records and pictures obtained from 2008, 2010, 2011 and 2012. In a conversation with project manager Thomas Machinski (MWH Global) who was responsible for a City of Cape Coral project at this location, Mr. Machinski advised that the project "closed out" in April 2010; (as a subcontractor on that project, Poole & Kent had occupied a construction trailer at that site.) This trailer was moved from this location prior to February 2011. Packet Page -654- 11/13/2012 Item 11.G. Based upon all of those facts, The Purchasing Director opined that there was no presence of a Poole & Kent Office at 1200 Kismet Parkway West, Cape Coral, FL 33993 at the time the above mentioned bid submission was turned in, nor was there one at that location one year prior to the date of the bid submission. Accordingly, it was the decision of the Purchasing Director to disqualify Poole & Kent's bid submission for submitting false information in its notarized Affidavit for Claiming Status as a Local Business, and to direct staff to move forward with award for this solicitation to Mitchell and Stark. This decision to disqualify Poole & Kent's bid renders all remaining arguments regarding the County's Local Vendor Policy as moot. Pursuant to Section XIX.F of the Board's Purchasing Policy, on September 19, 2012, Poole & Kent's attorney issued a written objection to the Purchasing Director's decision and requested that the County Manager appoint an independent hearing officer to review the facts and conduct a hearing regarding the Poole & Kent's bid protest. The County Manager upheld the Purchasing Director's decision and denied the request. On November 1, 2012, County staff received a signed notarized affidavit from the City of Cape Coral's Chief Plant Operator since 2007, Andrew Fenske, whose office is located at the City's Treatment Plant located at 1200 Kismet Parkway West who swore, in part, that: 1. Poole and Kent had an office trailer, and other trailers sometime in 2007 for storing tools and materials for a job at the 1200 Kismet Parkway West Cape Coral job site; 2. Sometime in the fall of 2010, the office trailer was removed from the plant and never brought back, leaving only storage trailers present at the City's treatment plant; and 3. To the best of his knowledge, the City of Cape Coral does not allow private companies to conduct non -city related business to the general public on City property. A copy of Mr. Fenske's Affidavit is attached for the Board's consideration. Although the facts clearly support the conclusion that Poole & Kent is not a local vendor under the County's Purchasing Policy, a thorough analysis confirms that Poole & Kent is not even eligible for consideration under that policy. Special emphasis should be noted that the address Poole & Kent provided in its Affidavit for Claiming Status as a Local Business is located on City of Cape Coral property. After the County adopted its Local Vendor Policy, it entered into a "Local Vendor Preference Reciprocity Agreement" with Lee County on October 14, 2008. (See copy attached). Through that agreement, Lee and Collier Counties agreed to deem vendors with physical business addresses in each other's jurisdiction as "local" for preference purposes. Collier and Lee only have jurisdiction to bind the unincorporated portions of their respective counties; and not the municipalities located within their respective incorporated portions. Notably, Collier County also entered into a separate "Local Vendor Preference Reciprocity Agreement" with the City of Bonita Springs on July 28, 2009. This is consistent with the Collier County Purchasing Policy Section X1(5) that allows Collier to enter into reciprocity agreements with "Lee County, or any other Florida county or municipality ... deemed appropriate by the Collier County Board of Commissioners... [J" Collier County has not entered into a Reciprocity Agreement with the City of Cape Coral. Therefore, Collier County is not bound to grant any local vendor preference to a business (regardless whether it has a physical business address) located within the City of Cape Coral; especially involving a storage trailer actually located on City property. Packet Page -655- 11/13/2012 Item 11.G. Finally, it bears noting that although the City of Cape Coral's Purchasing Policy does incorporate a form of local vendor preference, it is not equally applied to Collier County businesses. The Code of Ordinances of the City of Cape Coral, Florida, Section 2- 144(a)(10) provides a preference for contractors submitting competitive sealed bids but it does not specifically identify Collier County businesses as an eligible "local contractor /vendor" under its policy. The Cape Coral Ordinance does incorporate a slight preference for Collier County professional firms (engineers, consultants, etc.) submitting qualification based proposals but even that benefit is limited by adding the following points or percentages to the scores: • Cape Coral professionals receive ten points or 10% • Lee County professionals receive seven points or 7% • Collier, Charlotte, Glades and Hendry County professionals receive three points or 3% Code of Ordinances of City of Cape Coral § 2- 144(h)(4)(c). By comparison, the preferential treatment Collier County provides Lee County and the City of Bonita Springs under the respective Reciprocity Agreements provides a match opportunity for their eligible competitive bid contractors and also provides 10 points or 10% to the total score of professionals submitting qualification based proposals. Collier County has no such reciprocal arrangement with the City of Cape Coral; therefore, Poole and Kent is not eligible to be treated as a local vendor under Collier County's policy. Based on all of the above reasons, Staff recommends that the Board upholds the County Manager's decision and denies the protest objection by the Poole & Kent Company of Florida in Invitation to Bid (ITB) #12 -5931 Master Pump Station 312 Rehabilitation as Project 72549. FISCAL IMPACT: Other than the costs of the Board awarding the resultant contract for ITB #12 -5952 Aerated Sludge Holding Tank (ASHT) /Flow Equalization Tank (FET), future expenses are undetermined at this time. LEGAL CONSIDERATIONS: The core issue for this protest is whether Pool & Kent qualifies as a "Local Business" under the Board's Local Business Preference Policy. The Board's review of this protest is within its legislative authority to interpret the application of its own ordinances, resolutions and policies. The Florida Supreme Court has opined that a County's interpretation of its own ordinances, resolutions and policies is entitled to great deference. See e.g., Donavan v. Okaloosa County, 82 So.3d 801 (Fla. 2012); Verizon Fla. V. Jacobs, 810 So.2d 906 (Fla. 2002). The Board may adopt the final decision issued by the Purchasing Director (and accepted by the County Manager) or receive additional argument from the protesting party limited to the content of its original written formal protest. This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —JAK. GROWTH MANAGEMENT IMPACT: There is no Growth Management impact as a result of this Executive Summary. RECOMMENDATIONS: That the Board of County Commissioners, as Ex- officio the Governing Board of the Collier County Water -Sewer District, denies the protest objection by the Poole & Kent Company of Florida regarding award of Invitation to Bid (ITB) #12 -5952 Aerated Sludge Holding Tank (ASHT) /Flow Equalization Tank (FET), Project 70091. Prepared By: Joanne Markiewicz, Interim Purchasing / General Services Director Packet Page -656- 11/13/2012 Item 11.G. Attachments: • Arnstein & Lehr's bid protest filed on behalf of the Poole & Kent Company • Purchasing Director Protest Decision • Lee County Tax Collector Information • City of Cape Coral Aerial Pictures for 2008, 2010, 2011, and 2012 • Email Statement by MWH Global Representative: Thomas Machinski • Email Statement by City of Cape Coral Representative: Wanda Roop • Arnstein & Lehr's objection of the Purchasing Director's findings filed on behalf of the Poole & Kent Company • Local Vendor Preference Policy • November 5, 2012, Correspondence from Purchasing Director to Poole & Kent's Attorneys • Executive Summary Excerpt: March 9, 2010 1 O Packet Page -657- 11/13/2012 Item 11.G. COLLIER COUNTY Board of County Commissioners Item Number: 11.G. Item Summary: Recommendation to determine final resolution of protest decision related to the Poole & Kent Company of Florida protest objection regarding award of Invitation to Bid (ITB) #12 -5952 Aerated Sludge Holding Tank (ASHT) /Flow Equalization Tank (FET), Project 70091. This is a companion to Item 11G. (Len Price, Administrative Services Administrator) Meeting Date: 11/13/2012 Prepared By Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene 10/30/2012 7:08:53 AM Submitted by Title: Manager - Purchasing Acquisition,Purchasing & Gene Name: MarkiewiczJoanne 10/30/2012 7:08:54 AM Approved By Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene Date: 10/30/2012 8:15:25 AM Name: JohnsonScott Title: Purchasing Agent, Purchasing & General Services Date: 10/30/2012 8:44:23 AM Name: pochopinpat Title: Administrative Assistant,Facilities Management Date: 10/30/2012 12:21:36 PM Name: WardKelsey Title: Manager - Contracts Administration,Purchasing & Ge Date: 10/30/2012 1:53:25 PM Packet Page -658- Name: SchaltPeter Title: Project Manager, Senior,Public Utilities Engineeri Date: 10/31/2012 9:36:24 AM Name: ChmelikTom Title: Director, - Public Utilities Engineering Date: 10/31/2012 9:45:03 AM Name: YilmazGeorge Title: Administrator, Public Utilities Date: 10/31/2012 11:00:04 AM Name: PriceLen Title: Administrator, Administrative Services Date: 10/31/2012 11:50:55 AM Name: TeachScott Title: Deputy County Attomey,County Attorney Date: 10/31/2012 3:29:02 PM Name: KlatzkowJeff Title: County Attorney Date: 11/1/2012 11:29:51 AM Name: UsherSusan Title: Management /Budget Analyst, Senior,Office of Manage Date: l 1 /2/2012 4:13:27 PM Name: OchsLeo Title: County Manager Date: 11/4/2012 3:08:02 PM Packet Page -659- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP ATTORNEYS AT LAW SINCE 1893 September 6, 2012 Ms. Joanne Markiewicz Interim Purchasing Director Collier County Government Purchasing Department 3327 Tamiami Trail East Naples, FL 34112 11/13/2012 Item 11.G. 515 North Flagler Drive • Suite boo West Palm Beach, Florida 33401 Phone 561.833.9800 • Fax 56r.655.5551 www.arnstein.com Stuart H. Sakwa 561 - 650 -8484 shsakwa@arnsteln.com Re: Solicitation #12 -5952, NCWRF Aerated Sludge Holding Tank, No. 3 Collier County Public Utilities Planning & Project Management 3339 Tamiami Trail East; Suite 303 Naples, FL 34112 Subj: Bid Protest Dear Ms, Marklewicz: The undersigned law firm represents Poole & Kent Company of Florida ( "Poole & Kent ") with respect to the Bid Protest of the above reference solicitation. This letter shall serve as Poole & Kent's Bid Protest in accordance with Collier County's Purchasing Policy procedures. Poole & Kent's principal place of business is 1781 N.W. North River Drive, Miami, Florida, 33125 and its local address is 1200 Kismet Parkway West, Cape Coral, Florida 33993. On August 22, 2012, Poole & Kent was the low responsive and responsible bidder on Solicitation #125952, NCWRF Aerated Sludge Holding Tank, No. 3, with a price of $6,307,000. In addition, Poole & Kent's bid contained the Affidavit for Claiming Status as a Local Business. On August 28, 2012, Collier County posted the Notice of Recommended Award for the Solicitation, and recommended Mitchell & Stark Construction Company ( "Mitchell & Stark) as the Awardee notwithstanding the fact that Mitchell & Stark's price was $6,314,755 or more than $7,000 higher than Poole & Kent's price. Although Poole & Kent was the low responsive, responsible bidder, and submitted the required Affidavit to demonstrate that it meets the definition of a "local business," Poole & Kent was not awarded the Solicitation. Poole & Kent protests Collier County's decision to award the solicitation to the second low bidder, Mitchell & Stark. 10348853.1 CHICAGO HOFFMAN ESTATES SPRINGFIELD MILWAUKEE FORT LAUDERDALE IMIMMI TAMPA WEST PALM BEACH BOCA BATON Arnstein & Lehr LLP is a member of the International Lawyers Network Packet Page -660- 11/13/2012 Item 11.G. A.RNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 6, 2012 Page 2 Although not included in the Notice of Recommended Award, Collier County separately posted the Bid Tabulations for the solicitation which contains the following statement: In accordance with Local Vendor Preference "Right to Match" and Florida Statute 287.087 Mitchell & Stark is given the right to match under the LVP policy of the Board of County Commissioners. Mitchell & Stark is within 10% of the lowest bidder (Poole & Kent), and Mitchell & Stark is willing to match their price of $6,307,000, and has provided a signed Drug Free Workplace affidavit. While neither the Notice of Recommended Award nor the Bid Tabulation states that Collier County has determined that Poole & Kent was not a "local business," Poole Px Kent assumes that such a determination must have been made in order for the County to proceed with the "right to match" procedure. However, as discussed below, the failure of the County to make a formal determination of whether Poole & Kent's is a "local business" is arbitrary and capricious. Collier County's determinations that Poole & Kent is not a local business acid that Mitchell & Stark is the lowest responsive, Responsible bidder are contrary to Florida law for the following reasons: 1. The Local Vendor Preference in Collier County's Purchasing Policy violates Section 255.20, Florida Statutes, which requires that the contract be awarded to the lowest qualified and responsive bidder; 2. The "local price match option" contained in the County's Purchasing Policy violates the law that a bidder is prohibited from changing its bid after the bids have been opened. See, Harry Pepper & Associates. Inc, v. City of Cape Coral, 352 So. 2d 1100 (Fla. 2" DCA 1977); 3. The Local Vendor Preference in the County's Purchasing Policy violates the law that requires that public bidding must be done in accordance with the public bidding statutes to protect, "the public against collusive contracts and prevent favoritism toward contractors by public officials" and, "to secure fair competition upon equal terms to all bidders." See, Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982); 4. The County's presumed determination that Poole & Kent is not a "local business" is contrary to the definition of a local business as set forth in the County's Purchasing Policy; and 10398853.1 Packet Page -661- 11/13/2012 Item 11.G. A.RNSTEIN & LEHR LLP Ms. Joanne Marldewicz September 6, 2012 Page 3 5. The County's presumed determination that Poole & Kent is not a "local business" is based upon unclear, and /or undefined criteria, and thus, any determination that Poole & Kent is not a `local business" would be arbitrary and capricious. See, City of Sweetwater v. Solo Construction Corporation, 823 So.2d 798 (Fla. 3 Id DCA 2002). Poole & Kent Is the lowest qualified and responsible bidder. G Collier County's Local Vendor Preference is in violation of Section 255.20(1)(d)(1), Florida Statutes, which provides: If the project is to be awarded based on price, the contract must be awarded to the lowest qualified and responsive bidder in accordance with the applicable county or municipal ordinance or district resolution and in accordance with the applicable contract documents.... Florida law requires that for competitively bid contracts, the lowest qualified, responsible bidder must be awarded the contract. See, City of Sweetwater v. Solo Construction Corporation, 823 So.2d 798 (Fla. 3d DCA 2002) and Engineering Contractors Association of South Florida Inc. v. Broward County, 789 So.2d 445 (Fla. 4 DCA 2001). While local preferences are not always prohibited under Florida law, Collier County's specific program violates the law because it allows for an entity other than the lowest responsible bidder to be awarded the contract.' Under Collier's Purchasing Policy, the procedure is set forth as: When a qualified and responsive, non -local business submits the lowest price bid, and the bid submitted by one or more qualified and responsive local businesses is within ten percent of the price submitted by the non -local business, then the local business with the apparent lowest bid offer (i.e.; the lowest local bidder) shall have the opportunity to submit, an offer to match the price(s) offered by the overall lowest, qualified and responsive bidder.... Based upon the bolded language, it is clear that the County's Purchasing Policy allows for the lowest local bidder to be awarded the project, rather than the actual lowest overall bidder. Such a procedure is not permitted under the competitive bidding requirements of Florida law. ' For instance, local preferences that allow a local bidder and the lowest bidder to engage In a second round of bidding, known as "best and final offers" are permissible because the actual lowest bidder from the best and final offers is awarded the project. 10348853.1 Packet Page -662- 11/13/2012 Item 11.G. ARNSTEIN & LEHP LLP Ms. Joanne Markiewicz September 6, 2012 Page 4 In Drywall Associates, Inc. et al. v. State of Connecticut Dept. of Education & City of DanbuN, 1993 Conn. Super. LEXIS 1688 (Super. Ct. of Conn. 1993), the Court held that a local ordinance, which was very similar to the Local Vendor Preference created in the County's Purchasing Policy, was void because it conflicted with state law. The local preference at issue stated: Provided that such city -based resident bidder shall have met all other requirements set forth in this Article, any city -based resident bidder which has submitted a bid not more than ten (10) percent higher than the low bid and has agreed to accept the award of the bid at the amount of the low bid, the lowest responsible bidder shall be that one of the city -based resident bidders which had submitted the lowest bid. Likewise, Conn. Gen. Sfaf. §90- 287(b) is similar to Section 255.20, Florida Sfafufes. The Connecticut statute provides: All orders and contracts for school building construction receiving state assistance under this chapter shall be awarded to the lowest responsible qualified bidder only after a public invitation to bid... The Court in Drywall Associates, determined that it was undisputed that the low bidders for each contract were responsible and qualified bidders. The Court further determined that it was undisputed that but for the local preference, the low bidders would have been awarded the contracts. The Court therefore concluded that the City of Danbury could not award the contracts to the city -based second low bidders even though they had offered to perform the contracts at the price of the low bidders. Based upon substantially similar facts and law in this matter, Poole & Kent should be awarded the contract as the lowest responsive and responsible bidder. it. The "Local Price Match Option" is illegal C Under Florida law, "a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities." Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2" d DCA 1977), There can be no dispute that the County allowing Mitchell & Stark to change its bid price to match Poole & Kent's bid is more than the curing of a minor irregularity, and thus impermissible. Although the "local price match option" is contained within the County's Procurement Policy, the County does not have the right to create a policy or procedure that violates Florida law, The rule prohibiting the modification of bids after opening was codified by the Florida legislature in Section 120.57 (3)(f), which provides: 10348853.1 Packet Page -663- 11/13/2012 Item 11.G. A.RNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 6, 2012 Page 5 In a protest to an invitation to bid or request for proposals procurement, no 'submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered.... In order for the County to prevail in a bid protest, the decision maker would have to consider Mitchell & Stark's statement on the Bid Tabulation sheet, which was signed on August 28, 2012, after the bid opening, Since the only way for Mitchell & Stark to be considered'" the low bidder is if It is allowed to amend its bid price, Mitchell & Stark cannot be considered the lowest bidder. Ill. The Local Vendor Preference Violates the Integrity of Public Contracting The County's Local Vendor Preference program violates Florida law is because it destroys the integrity of public contracting. The Florida Supreme Court in Liberty County v Baxter's Asphalt & Concrete, Inc.., 421 So.2d 505 (1982), citing Wester v. Belote, 138 So. 721 (1931) explained the purpose of public bid statutes as: [they] serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to ail bidders, [and] they remove temptation on the part of public officers to seek private gain at the taxpayers' expense, are of highly remedial character, and should receive a construction always which will fury effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated. While Poole & Kent is not suggesting that Collier County has actually colluded with Mitchell & Stark, the purpose of bid statutes is not only to prevent actual collusion, but also to prevent the appearance of impropriety. Harry Pepper & Associates Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977). As explained in City of Sweetwater v. Solo Construction Corp., 823 So.2d 798 (Fla 3rd DCA 2002), citing Marriott Corp. v. Metro Dade County, 383 So.2d 662 (Fla. 3rd DCA 1980): The system [competitive bidding statutes] confers upon both the contractor and the public authority reciprocal benefits, and confers upon them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed tfie contract if his is the lowest and best bid received. The principal benefit to the public authority is the opportunity of purchasing the goods and services required of it at the best price obtainable. Under this system, the public authority may not arbitrarily or 10348853.4 Packet Page -664- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewlcz September 6, 2012 Page 6 capriciously discriminate between bidders, or make the bid based upon personal preference. Furthermore, the County's Local Vender Preference program gives local bidders an unfair advantage in the bidding process, and will lead to the County ultimately paying more for goods and services than it would otherwise have to as competition in the future Is reduced, While in this case the County will not have to pay more than what Poole & Kent submitted as the low bid, in the future, the County will not have the benefit of non -local vendors bidding similar projects because the likelihood of them actually receiving an award is greatly reduced. Under the county's local preference program, the lowest local bidder gets the opportunity to find out what every other bidder's price was at the bid opening, and then decide whether or not it wants to match the low bidder's price. This allows a local bidder to submit a higher price in the hopes that it will still be the low bidder, but with the assurance that even if it is not the low bidder, it will have the opportunity to lower its price if it so chooses and be awarded the project. Allowing a local vendor to have a second chance to lower its bid price creates an unfair bidding advantage that is Illegal under Florida law. See, E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583 (Fla. 1S; DCA 1982)(Allowing a contractor to bid shop after bid opening is prohibited because it would create an unfair bidding advantage); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977)(Contractor could not be awarded contract based upon nonconforming bid because, "[ajfter everyone else's bids were opened, Gulf was in a position to decide whether it wanted the job bad enough to incur the additional expense of supplying conforming pumps "). Because of such unfairness, non -local bidders have stopped bidding to Collier County because it is costly to prepare a bid, and the likelihood of actually being awarded a project has been greatly reduced with the current local preference program in effect. Had Poole & Kent known that it would not be considered a local business, It would not have wasted its time and money preparing bids, and will not do so in the future.2 IV. Poole & Kent is a "local business" Collier County's Purchasing Policy defines a "local business" as one that has a valid occupational license, and a physical business address located within Collier County from which the vendor operates or performs business.. In addition, the Purchasing Policy allows for reciprocity with vendors from Lee County, 2 Poole & Kent has submitted at least two other bids this year to Collier County on other solicitations and included the Affidavit for Claiming Status as a Local Business. Collier County has not previously advised Poole & Kent that it did not consider Poole & Kent to be a non -local business. 10348853.1 Packet Page -665- 11/13/2012 Item 11.G. .A.RNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 6, 2012 Page 7 Poole & Kent included in its sealed bid, a copy of its Lee County Local Business Tax Receipt, along with copies of its Collier County Qualifier Certifications authorizing Poole & Kent to act as a General Contractor, Mechanical Contractor and Electrical Contractor. Poole & Kent also included Certificates of Competency issued by the City of Cape Coral authorizing Poole & Kent to act as a General Contractor, Mechanical Contractor and Electrical Contractor. Copies of the above described licenses are attached hereto. As set forth in Poole & Kent's Affidavit for Claiming Status as a Local Business, Poole & Kent's physical business address In Lee County is 1200 Kismet Parkway West, Cape Coral, EL 33993.3 Poole & Kent set up an office at that address in March of 2007, and has been operating its business in Lee and Collier County from that location ever since. Prior to that time, Poole & Kent was working in Lee and Collier County at other locations. Poole & Kent is currently performing work for the City of Naples. Based upon these two objective standards from the County's Purchasing Policy, the County should have determined that Poole & Kent is a "local business ". The County's refusal to find that Poole & Kent is a "local business," the County's failure to make a formal determination of whether Poole & Kent Is a "local business," as well as the County's failure to notify Poole & Kent of its determination are all arbitrary and capricious acts. In addition to the two above described objective standards for determining whether a vendor is a "local business ", the County's Purchasing Policy sets forth an ill - defined standard that a vendor must contribute to the, "economic development and well- being of Collier County in a verifiable and measurable way," in order to be considered as a "local business." The County's Purchasing Policy then lists a few items, as set forth below, that may be used to determine whether a vendor contributes to Collier County. In a good faith attempt to meet this undefined standard, Poole & Kent filled out the form Affidavit provided by the County, and noted that it has employed a total of 128 individuals for work in either Collier or Lee County since 2006, and that of those employees, 73 of them resided in either Collier or Lee County. In addition, although there was no space for Poole & Kent to provide additional information on the Affidavit, if the County had conducted a fair inquiry into Poole & Kent's contributions to Collier and Lee County's economic development, it should also have considered that Poole & Kent hired many local subcontractors from Lee and Collier County. Based upon the information provided by Poole & Kent in the Affidavit and in its bid, Poole & Kent meets the definition of a "local business" and therefore, Mitchell & Stark should not have been given the opportunity to match Poole & Kent's low bid. 3 A copy of the Affidavit Is attached hereto. 10348853.1 Packet Page -666- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 6, 2012 Page 8 V. The "Local Business" definition is ill- defined, and was applied in an arbitrary and capricious manner After the County decided to recommend the award to Mitchell & Stark, Poole & Kent was informed by an employee of the County that the County determines whether a vendor is a "local business" based upon several criteria, including: 1) whether the vendor has a permanent address in Collier County, 2) whether the vendor pays taxes In Collier County, 3) whether the vendor owns or leases property in Collier County; and 4) the business address from which the bid was submitted. As noted above, Poole & Kent has a permanent address in Lee County, as it has been at the same location for more than five (5) years. Similarly, Poole & Kent pays the Local Business Tax Receipt in Lee County. Poole & Kent uses the personnel from its Lee County office to not only perform work on existing projects, but also to work on bids for future work. For instance, on this solicitation, employees from the Lee County office were used to assist in the bid preparation, to conduct pre -bid investigations, to conduct site investigation, and to formulate the planned construction techniques for this project. Admittedly, Poole & Kent does not own or lease property in Collier or Lee County. However, the definition of a "local business" does not make the owning or leasing of property mandatory. instead, the definition of "local business" includes the following provision: This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. The above provision is too vague for a vendor to know what is required of it in order to meet the County's definition. First, the provision uses the term "may ", which means that compliance is optional, not mandatory. Second, the meaning of the phrase "support and increase to the County's tax base" is unclear. The term tax base can refer to sales taxes, the local business tax receipt, or as the County now apparently interprets the term, property taxes. The vagueness of the County's Purchasing Policy, as well as the way in which it was applied, renders the decision by the County that Poole & Kent was not a local business arbitrary and capricious. Poole & Kent was told that its physical address in Lee County was not accepted because the address is not located in an office park or store front. However, Collier County's Purchasing Policy does not require that the physical address be in such a locale, and therefore, it is improper for Collier County to impose such a requirement without disclosing it in the Purchasing Policy. 16348853.1 Packet Page -667- 11 /13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 6, 2012 Page 9 In City of Sweetwater v Solo Construction Corp., 823 So.2d 798 (Fla. 3" DCA 2002), the Court held, "[w]hile a public authority has wide discretion in award of contracts for public works on competitive bids, such discretion must be exercised based upon clearly.deflned criteria, and may not be exercised arbitrarily or capriciously." The Court later concluded, the City decision to award the contract to United Engineering Corporation was arbitrary and capricious and based upon criteria that were neither included in the bid documents nor clearly defined In any manner whatsoever. Id., at 802. Since the criteria for determining whether a vendor is a local business are not clearly defined, and the manner in which those criteria are undefined, the County cannot apply unclear standards in an unclear manner to determine whether Poole & Kent is a local business. The Court in City of Sweetwater concluded that the City's attempt to award the contract to United Engineering as the "most responsible bidder" was also in violation of Section 255.20, Florida Statutes. Collier County's attempt to award the contract to Mitchell & Stark based upon the Local Vendor Preference, where it has determined that Mitchell & Stark is "more local" than Poole & Kent, is analogous to the City of Sweetwater's attempt to determine that United Engineering was the "most responsible." Therefore, Collier County's actions are arbitrary and capricious, and must be reversed, For the foregoing reasons, Poole & Kent requests that Collier County take the following actions: A. Withdraw the Notice of Recommended Award for Solicitation # 12 -5952; and B. Determine that Poole & Kent is a local business in accordance with the terms of the Purchasing Policy; or in the alternative C. Determine that the Local Preference does not apply to this Solicitation, in accordance with Section XI .(3) of the Purchasing Policy; or in the alternative D. Determine that the Local Vendor Preference is illegal and void; and E. Determine that Poole & Kent is the lowest responsible, responsive bidder; and 10348853.1 Packet Page -668- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewicz September G, 2012 Page 10 F. Issue a revised Notice of Recommended Award, naming Poole & Kent as the Awardee. Respectfully submitted, Stuart H. Sakwa SHS /lkd Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (1) avoiding any tax penalties that may be Imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 10348853.1 Packet Page -669- MtnN �cOv C 'O •d U V) o � c N U O 6 O t� m Z N U v z M O z G F•' O) C O 41 m LL'D 7 ro Q U z n 0) LO N_ O z ib L U O N N o is N NN �� �M1' iii -VVV1 C aQ1 Co m o v v m d O 0 11/13/2012 Item 11.G. '7E ii�`1.i Ld`i�rt,i Y[� yc3..1:•rGt�ip:i -::. ere. 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C j s 0 'oa c'pma Ol 0.Y nr N a, .6 L ° zll v , c to a L N � 16 C Qf � a) r N � f1S Packet Page -672- 11/13/2012 Item 11.G. 11/13/2012 Item 11.G. r.Co,ny s AFFioAvrT FOR CLAIMING STATUS AS A LocAL BUSINESS SOLICITATION #:12 -5952 (CHECK APPROPRIATE BOxEs BELOW) State of Florida (Select County N Vendor is described as a Local Business ® Collier County © Lee County Vendor affirms that it Is a local business as defined by the Purchasing Policy of the Collier County Board of County Commissioners and the Regulations Thereto. As defined In Section Xl of the Collier County Purchasing Policy,, A °local business" Is defined as a business that has a valid occupational license Issued by either Collier or Lee County for a minimum of one (1) year prior to a Collier County bid or proposal submission that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier or Lee Counties from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not be used for the purpose of establishing seld physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of either Coiller or Lee County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and Increase to either Collier or Lee County's tax base, and residency of employees and principals of the business within Collier or Lee County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a'local business" under this section. Vendor must complete the following Information: Year Business Established In ElCoiller County or[) Lee County: 2006 Number of Employees (Including Owners) or Corporate Officers); 126 Total employed in Collier /Lee since 2006 Number of Employees Living In ❑ Collier County or ❑ Lee (including Owner(s) or Corporate Officers): 73 Total resided in Collier /bee since 2006 If requested by the County, vendor will be required to provide documentation substantiating the information given In this affidavit. Failure to do so will result In vendor`s submission being deemed not applicable. Company Name: Poole & Kent Company of Florida Date: 8/22/2012 Coiller or Lie C-roa Address: 1200 Signature: Pa Coral, PL 33993 Title: President & CEO Patrick H. Carr, President & CEO STATE OF FLORIDA ❑ COLLIER COUNTY ❑ LEE COUNTY S m to and Subscribed Before Me, a Notary Public, for the above State and County, on this 22nd Day of igust 20 Notary Ic Christine Mendez My Commission Expires: 10/31/2012 AFFIX OFFICIAL SEAL) , y ' CH111S1WEMENDEZ 21 MY COW40011 T DI) 808798 CoruVuc6on Services Agreemsnt for Public UbIrdes: Revised 0310112012 P eodo i+ � EXa in u9w ixrUwD s Packet Page -673- Tax Co" : for "Q1. of FI °t`bo 11/13/2012 Item 11.G. LEE COUNTY LOCAL BUSINESS TAX RECEIPT 2012-2013 ACCOUNT NUMBER: 1202799 ACCOUNT EXPIRES SEPTEMBER 30, 2013 Locallon 1781 NW NORTH RIVER DR MIAMI FL 33125 POOLE & KENT COMPANY OF FLORIDA STRICKLAND DAVID A PO BOX 420556 MIAMI FL 33242 -0558 sy engage n HIS' A111111111:111 o CERTIFIED GENERAL CONTRACTOR THIS LOCAL BUSINESS TAX RECEIPT IS NON REGULATORY Packet Page -674- THIS IS NOT A BILL - DO NOT PAY PAID 314553.21 -1 08!011/201211;33 SXP l $50.00 11/13/2012 Item 11.G. Qualifier Certification information CDPR2307 - Qualifier Certification Information Collier County Hoard of County Commissioners Printed on 8/4/2010 6:30:02PM CD -Plus for Windows ` CERT NER: 28238 QUALIFIER NBR: 27423 DAVID A. STRICKLAND CLASS CODEt 1010 GENERAL CONTR.-- CERTIkrIED STATE NBR: CGC 061808 COUNTY COMP CARD: STATE EXP LIAB EXP WC EXP ORIG ISSD RENEW 8/31/2012 10/1/2010 10/1/2010 11/21/2005 DBA: POOLE & KENT COMPANY OF FLORID WC EXEMPT: N ADDRESS: P. 0. BOX 420556 EXEMPT EXP DAT8: CITY: MIA141 FL 33242 - PRONE: (305)325 -1930 FAX: (305)324 -0522 EXPIRES 8/31/2012 OL EXEMPT, Y NOTE: It is the qualifier's responsibility to keep all business, licensing and requirements current and to provide up to date copies for Collier County files. This includes all insurance certificates and any change of address information. Collier County / Cityy aP Marco/ state Certified Contractor Licensing GENERAL CONTR. -- CERTIFIED Cart Mbr,28236 ExpJB /31/2012 StatusiACTIVE State Nbri OC 061808 Exp,8/31/2012 POOLE & KEtW cCOM,PPAAM OF FLORIDA PAvQ 9(iX 420556 MIAMI FL _33242 - Signed:y,{ Packet Page -675- 11/13/2012 Item 11.G. Qualifier cerafecatlon Information CDPR2307 - Qualifier Certification Information Collier County Board of County Commissioners Printed on 8/4/2010 6:33:37PM CD —Plus for windows CERT NBR: 28240 QUALIFIER NBR: 27423 DAVID A. STRICKLAND CLASS CODE: 1410 MECHANICAL CONTR.- CERTIFIED STATE NBR: CMC 057192 COUNTY COMP CARD: STATE EXP LIAB EXP WC EXP ORIO ISSD RENEW 8/31/2012 10/1/2010 10/1/2010 11/21/2005 DBA: POOLE & KENT COMPANY OF FLORID WC EXEMPT: N ADDRESS: P. 0. BOX 420556 EXEMPT ZXP LATE: CITY: MIAMI FL 33242 - PHONE: (305)325 -1930 SAX: (305)324 -0522 EXPIRES 8/31/2012 OL EXEMPT: Y NOTE: It is the qualifier's responsibility to keep all business, licensing and requirements current and to provide up to date copies for Collier County files. This includes all. insurance certificates and any change of address information. cit Collier County Certif l edf Marco/ State Contractor Licensing MECHANICAL CoWrR.- CERTIFIED Cert L.@r:28240 Expe8/31/2D12 Status;ACTIV$ state NbraCMC 057192 axpi &/3112012 POOLE k KEW COMPANY OF FLORIDA DAVID P. 0. A 6 S4Z0556 MIAMI FL 33242 Signed: Packet Page -676- 11/13/2012 Item 11.G. Qualifier Certification Information CMR2307 - Qualifier Certification Information Collier County Board of County Commissioners Printed on 8/4/2010 6:32 ;30PM CD -plus for Windows CERT NBR: 28242 QUALIFIER NBR: 27423 DAVID A. STRICKLAND CLASS CODE: 3010 PLUMBING CONTR.- CERTIFIED STATE NBR; CFC 057380 COUNTY COMP CARD: ' STATE EXP LIAB EXP WC EXP ORIG ISSD RENEWAL EXPIRES 8/31/2012 10/1/2010 10/1/2010 11/21/2005 8/31/2012 DBA: POOLE & KENT COMPANY OF FLORID WC EXEMPT: N OL EXEMPT: Y ADDRESS; P. 0. BOX 420556 EXEMPT HXP DATE: CITY; MIAMI FL 33242 - PHONE- (305)325 -1930 FAX; (305) 324 -0522 NOTE: It is the qualifier's responsibility to keep all business, licensing and requirements current and to provide up to date copies for Collier County files. This includds all insurance certificates and any change of address information. Collier County / City of Marco/ State Certified Contractor Licensing PLtMMBING CORTE.- CERTIFIED Cart Nbr:28242 Exp:S/31/2012 8tatua:ACTIVE State Nbr:CFC 057380 ExD- 8/31/2012 P00r.6 A KENT COMPANY OF FLORIDA DAVID A. STRIO'LAND P. 0. BOX 4205 6 MIAMI --K 3242- -,. signed; Packet Page -677- a�.r or City of Cape Coral 1015 Cultural Park Blvd. 'e 40 Cape Coral, FL 33990 3*8 ** « * * ** *+ +MIXED AADC 339 hl� ►�1(hdll ►I' ►1 ►l ►►hllp►p,lll ►I In�1111111�((11 ►I� ►lhl►h STRICKLAND DAVID POOLE & KENT COMP OP FL 1781 NW NORTH RIVER DR MIAMI, FL 33125.2311 Detach and post bottom portion OCT 3 1'QOL1; 4, KCP•vr 11/13/2012 Item 11.G. IV City of Cape Coral Certificate of Competency 10802 Date Issued: 8/2722011 PLUMBING Owner Name: STRICKLAND DAVID DBA-. POOLE & KENT COMP OF 11"L Expiration Date; 9/30/2012 CITY OF CAPE CORAL CERTIFICATE OF COMPETENCY City of Cape Coral —1015 Cultural Park Blvd —Cape Coral, Florida 33990 — (239) 574-0430 This Certificate expires 9/30/2012 Visit our website at: www.canecoral.net Certificate #: 10802 Location: 1781 NW NORTH RIVER DR CITY D F Business Phone:(305) 325 -1930 Classification: State License:CFC057380 CERTIFIED V �. PLUMBING STRICKLAND DAVID �� Date Issued: 8/22/2011 POOLE & KENT COMP OF FL G 1781 NW NORTH RIVER DR Amount: $10.00 MIAMI, FL 33125 -2311 �toRtpP Packet Page -678- C�tIY O► `'� )why' -" T w City of Cape Coral cg, ore 1015 Cultural Park BIvd. �. .'� +9, N° Caps: Coral, FL 33990 AUG 3 1 2011 Poo -I -E & 1C+EPti' 3'11 *i'• *'•'"MIXED AADC 339 �l�hlhll�l�Illu�r��llllilinhhlhl�hill�ll��tlil���h�l�q STRICKLAND DAVID POOLE & KENT COMP OF FL 1781 NW NORTH RIVER DR MIAMI, FL 331252311 Detach and post bottom portion 11/13/2012 Item 11.G. IV City of Cape Coral Certificate of Competency 10803 Date Issued: 8111/2011 MECHANICAL Owner Name: STRICKLAND DAVID DBA: POOLE & KENT COMP OF PL Expiration Date: 9/3012012 CITE' OF CAPE CORAL CERTIFICATE OF COMPETENCY City of Cape Coral — 10 15 Cultural Park Blvd — Cape Coral, Florida 33990 — (239) 574 -0430 This Certificate expires 9/30/2012 Visit our website at: www.copecoral.net Certificate #: 10803 Location: 1781 NW NORTH RIVER DR CITY OF Business Phone:(305) 325 -1930 State License:CMC057192 Classification; CERTIFIED $. MECHANICAL STRICKLAND DAVID �O POOLE & KENTCOMP OF FT Date Issued: 8/11/20] l 1781 NW NORTH RIVER DR °toR*ca MIAMI, FL 33125 -2311 Amount: $10.00 Packet Page -679- 11/13/2012 Item 11.G. City of Cape Coral 1015 Cultural Park Blvd. CITY OF� 4¢ coq Cape Coral, FL 33990 S 'o AUG 3 X 2011 O 3 *l t' " *• *• #0 **MIXED AADC 339 hill��l ►h�Illdlllhl��r1111 1111111)11111111111111111111 111101 STRICKLAND DAVID POOLE & KENT COMP OF FL 1781 NW NORTH RIVER DR MIAMI, FL 33125 -2311 Detach and post bottom portion IV City of Cape Cora! Certificate of Competency 10804 Date Issued: 811112011 GENERAL'A' Owner Name: STRICKLAND DAVID DBA: POOLE & KENT COMP OF FL Expiration Date: 9130/2012 CITY OF CAPE CORAL CERTIFICATE OF COMPETENCY City of Cape Coral — 1015 Cultural Park Blvd —Cape Coral, Florida 33990 — (239) 574 -0430 This Certificate expires 9130/2012 Visit our website at: www.cal2ecoral.net Certificate #: 10804 Location: 1781 NW NORTH RIVER DR CITY OF Business Plione:(305) 325 -1930 State License:CGC061908 Classification: CERTIFIED C► GENERAL STRICKLAND DAVID a POOLE & KENT COMP OF FL 0 Date Issued: 8/11/2011 1781 NW NORTH RIVER DR ° <DRt0P MIAMI, FL 331252311 Amount: $10.00 Packet Page -680- CAr County Adrrrriirasae saves DI sbn Pur, hasing September 13, 2012 Stuart Sakwa Arnstein & Lehr LLP 515 North Flagler Drive Suite 600 West Palm Beach 33401 Telephone: 561- 650 -8484 FAX: 561 - 655 -5551 Email: shsakwaa-arnstrin.com 11/13/2012 Item 11.G. RE: Protest Decision Regarding Solicitation 12 -5952 NCWRF Aerated Sludge Holding Tank, # 3 Dear Mr. Sakwa: I am writing in response to your formal protest letter of September 6, 2012, filed on behalf of Poole & Kent Company of Florida ( "Poole & Kent ") pertaining to the recommended award of the referenced Solicitation. The following is a summary of each of the issues raised in your protest. Poole & Kent's bid offer to the County was the low responsive and responsible bidder, and consistent with the solicitation document, County policy and Florida Statute 255.20 (1) (d) (1) should be awarded the contract: "If the project: Is to be awarded based on price, the contract must be awarded to the lowest qualified and responsive bidder in accordance with the applicable county or municipal ordinance or district resolution and in accordance with the applicable contract documents." 2. The County's "local price match option" is illegal and is contradictory to Florida Statute 120.57 (3) (F) which states: "In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered." Mitchell and Stark Construction Company ( "Mitchell & Stark ") was afforded the opportunity to modify its price six (6) days after (8/28/12) the bid opening (8/22/12). 3. The County's Local Vendor Preference Policy violates the integrity of public contracting in that it may be perceived as one bidder gaining an unfair advantage over another bidder and it gives local bidders an unfair advantage in the bidding process by affording them an opportunity to change their price in the "match" process. Public bidding laws are in place to prevent favoritism toward contractors by public officials and to secure fair competition. Furthermore, the use of this policy may ultimately raise the costs for future projects. The practice of allowing local bidders to "match" non -local bidders' prices will ultimately lead to the discontinuation of non -local bidders submitting prices on Collier County jobs. Submitting bids is a timely and costly process; Poole & Kent would not have tendered an offer if they had known they would not be considered a local vendor. 4. Poole & Kent believes that under the County's current Local Vendor Preference Policy that it is a local vendor as it has a valid occupational license and a physical business address within Collier or Lee County. Packet Page -681- 11/13/2012 Item 11.G. Furthermore, Poole & Kent believes that the application of the Local Vendor Preference Policy was applied in an arbitrary and capricious manner. In response, I have carefully reviewed all of the issues raised in your protest considered each allegation, and reviewed the facts pertaining to each allegation in great detail. Further, I have reviewed additional documentation regarding the submission of the notarized Affidavit for Claiming Local Vendor Preference presented by Poole & Kent in the bid submission for the above referenced solicitation. The Affidavit for Claiming Status as a Local Business submitted by Poole and Kent appears to contain false information intended to establish your client as a "local vendor" because it identifies a local address of 1200 Kismet Parkway West, Cape Coral, FL 33993, which doesn't and hasn't had any type of structure on site, either permanently affixed or a temporary construction trailer, from which to conduct business for a very long time. According to the Lee County property records; City of Cape Coral Utilities department aerial records and pictures obtained from 2008, 2010, 2011 and 2012; and, in conversation with project manager Thomas Machinski (MWH Global) who was responsible for the project at this location, the project "closed out" in April 2010; Poole and Kent was a subcontractor to MWH Global and occupied a construction trailer at that site. This trailer was moved from this location prior to February 2011. Based upon all of those facts, it is my opinion that there was no presence of a Poole & Kent Office at 1200 Kismet Parkway West, Cape Coral, FL 33993 at the time the above mentioned bid submission was turned in, nor was there one at that location one year prior to the date of the bid submission. Accordingly, it is the decision of this office to disqualify Poole & Kent's bid submission for submitting false information in its notarized Affidavit for Claiming Status as a Local Business, and to direct staff to move forward with award for this solicitation. This decision to disqualify Poole & Kent's bid renders all your remaining arguments regarding the County's Local Vendor Policy as moot. This determination is tentatively scheduled to be presented to the Board of County Commissioners on October 9, 2012. Under Section XVIII.0 of the County's purchasing policy, the decision of the Purchasing Director shall be considered final and conclusive unless the protestor delivers a subsequent written objection to my attention within two (2) business days from the date of receipt of this decision. Respectfully, nne rkiewicz Interim Purchasing /``General Se Lector Enclosures Lee County Tax Collector Information City of Cape Coral Aerial Pictures for 2008, 2010, 2011, and 2012 Email Statement by MWH Global Representative: Thomas Machinski 04, pu•Guarc Lkp- sNr.M• 3321 1,41 East • N:pNs, FOW4 3411? -49'1 • w+r.v. CA119- 1RVP -,h-19 Packet Page -682- 11/13/2012 Item 11.G. ter Cotirnty Admnlsuative Swvms Divismn PaM1hasft AFFIDAVIT FOR CLAIMING STATUS AS A LOCAL BUSINESS SOLICITATION # 12 -5931 MASTER PUMP STATION 312 REHABILITATION (CHECK APPROPRIATE BOXES BELOW) State of Florida (Select County If Vendor is described as a Local Business ® Collier County ® Lee County Vendor affirms that it is a local business as defined by the Purchasing Policy of the Collier County Board of County Commissioners and the Regulations Thereto. As defined in Section XI of the Collier County Purchasing Policy; A "local business" is defined as a business that has a valid occupational license issued by either Collier or Lee County for a minimum of one (1) year prior to a Collier County bid or proposal submission that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier or Lee Counties from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not be used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of either Collier or Lee County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and Increase to either Collier or Lee County's tax base, and residency of employees and principals of the business within Collier or Lee County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a 'local business" under this section. Vendor must complete the following information: Year Business Established in E)Collier County or 0 Lee County: 2006 Number of Employees (including Owner(s) or Corporate Officers): 12B Total employed in Collier /Lee since 2006 Number of Employees Living in 0 Collier County or ® Lee (Including Owner(s) or Corporate Officers): 73 Total resided in Collier /Lee since 2006 If requested by the County, vendor will be required to provide documentation substantiating the information given in this affidavit. Failure to do so will result in vendor's submission being deemed not applicable. Vendor Name: Poole & Kent Company of Florida Date: 6/21/2012 CollierorLetyAddress: 1200 Kismet Parkway West, Cape Coral, FL 33993 Signature: C Title: President & CEO Patrick H. Carr STATE OF FLORIDA: 0 COLLIER COUNTY 0 LEE COUNTY S qAA d Sub cribbed Before Me, a Notary Public, for the above State and County, on this 21st Day of t 20 2 ,j CHRISTiNEMENDEZ Christine Men Notary Publi—J *; ._ MYCOMMISSiON #DO 808798 EXPIRES: October 31,2012 My Commission Expires: 10/31/2012 pro x Bonded Thu NMW PWAo Undenv"tm (AFFIX OFFICIAL SEAL) Packet Page -683- 20 Construction Services Agreement: Revised 11112012 www.sunbiz.org - Department of State Home Contact Us E- Filing Services Previous on List Next on List Return To List No Events No Name History Detail by Entity Name Foreign Profit Corporation POOLE & KENT COMPANY OF FLORIDA Filing Information Document Number F04000003751 FEI /EIN Number 753163466 Date Flied 07/0112004 State DE Status ACTIVE Principal Address 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Mailing Address C/O EMCOR GROUP, INC., 301 MERRITT SEVEN 6TH FLOOR NORWALK CT 06851 Changed 06/30/2005 Registered Agent game & Address CORPORATION SERVICE COMPANY 1201 HAYS STREET TALLAHASSEE FL 32301 -2525 US Officer /Director Detail Name & Address Title VP STRICKLAND, DAVID A 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title VP MACCLUGAGE, BRIAN 1781 N.W. NORTH DRIVE DRIVE MIAMI FL 33126 Title PTCE CARR, PATRICK H 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title CFO 11/13/2012 Item 11.G. 1,26,- 1 Vl L Document Searches Forms Help Ent' Name Search http: / /www.sunbiz.org/ scripts /cordet.exe ?act., —T`L P"Tr kr ;— doe _number= F040000037... 8/23/2012 Packet Page -684- xwww.sunbiz:org - Department of State HARRINGTON, RICHARD 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title VPAS NEESE, CHARLES K 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Annual Resorts Report Year Filed Date 2011 05/1612011 2012 04/2312012 2012 07/1012012 Document Images 07/1012012 — ANNUAL REPORT MEN 0412312012 -- ANNUAL -REPORT 05/16/2011 —ANNUAL REPORT..,' 03/31/2011 — ANNUAL REPORT 0410812010 — ANNUAL REPORT - 4,qjw man D oaf I 04/0212009 — ANNUAL REPORT 03/1812008 — ANNUAL REPORT 0111912007 — ANNUAL REPORT 0210712006 — ANNUAL REPORT 06/3012005 — ANNUAL REPORT ie ma 07/01/2004 — Foreian Profit Note: This is not official record. See documents if question or conflict. Previous on List Next on List Return To List No Events No Name History ------------- --- --- I Home I Contact us I Document Searches I E-Filinq Services I Forms I Heir) Copyrioht@ and Privacy Policies State of Florida, Department of State 11/13/2012 Item 11.G. r-ilgcz U.L ......... ........... ...... ... ......... Entity Name Search http: / /www.sunbiz.org /scripts /cordet.exe ?act=- --""r'ITT hoc number--F040000037... 8/23/2012 Packet Page -685- — Lee County Tax Collector's Office Home • FAQ • En Espahol • Contact Us , Printable Version Search... J Vessels Driver License Hunting 8. Fishing CaC-ai-iu"Siin-as"s* Taxes— Additional Options: Payments Made Change Mailing Address 11/13/2012 Item 11.G. .L U6� I va a Copyright C 2009, Lee County Tax Collectors Office. All rights reserved. - View Site Policies - View Payment Policies http://www.leetc.com/search—detaii.asp?ac--o .... f---',)n?7009rqpprnhType=OCCLIC 8/23/2012 Packet Page -686- Business Tax Account Information Seardl ;' Business POOLE & KENT COMPANY OF FLORIDA 1781 NW NORTH RIVER DR MIAMI FL 33125 (305)325-1930 Account 1202799 Description CERTIFIED GENERAL CONTRACTOR Mailing Address PC) BOX 420556 MIAMI FL 33242-0556 Year Amount Account is paid current. Outstanding Balance Due as of 812312012 $0.00 Additional Options: Payments Made Change Mailing Address 11/13/2012 Item 11.G. .L U6� I va a Copyright C 2009, Lee County Tax Collectors Office. All rights reserved. - View Site Policies - View Payment Policies http://www.leetc.com/search—detaii.asp?ac--o .... f---',)n?7009rqpprnhType=OCCLIC 8/23/2012 Packet Page -686- Lee County Tax Collector's Office TI dtv of titrlS Home • FAQ • En Espanol - Contact Us • Printable Version ISearrh... ;1 11/13/2012 Item 11.G. L ❑.Sv 1 VA L Information Property Taxes Vetricles, f Vessels i Driver License Hunting & Fishing Loral Business Taxes Pay Online Tax Roll Search - Tangible Property y �'} �.y�/� �- To make a payment, review payment history, or find detailed information on an account, you will need to first search the tangible property records for the account in question. When searching or making a payment for an installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. errors & insoivencies (E &f), bankruptcy, litigation, issuance of warrants, etc.). N (: View Search By: Name r Save as File Tax Year: 12011 ` { Note: Current Tax Year is 2011) View file format. Name: JPooie & Kent F Extensive Search ( Note: Please use the format, Last Name First Name ) % StarSearch SCcrrcfr Tips 'i e Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http: / /www.leete.com /search — criteria .asp ?seer,a,,,, — Tp R .n= hnrge &i= 1 &page_id= searche... 8/30/2012 Packet Page -687- Lee County Tax Collector's Office Home • FAQ • En Espahol • Contact Us • Printable Version ,Search... Information Property Taxes Vehicles [ Vessels Driver License Huftfirlg&rlsbing Local Business Taxes Pay Online 11/13/2012 Item 11.G. —E,- — . VrU�' ,, W! Page of 0 Show me r _71-1-- 0 matches per page Account Tax Name/ Status/ Real Property Account Year Address Outstanding Balance Sorry, we could not find any matches for your search... 'Y'A N®R, Page Of 0 Show me 20 G T. 0 matches per p age Copyright Q 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http://,A,ww.leetc.com/s--a.rch—results.asp 8/30/2012 Packet Page -688- Lee County Tax Collector's Office 1 ter' Y Home • FAQ • En Espanol - Contact Us • Printable Version Search.-- 11/13/2012 Item 11.G. ....6.,. , .. Information Property Taxes Vehicles f Vessels ! Driver License + Hunting & Fishing Local Business Taxes ` 4.._...... s.,.. - .,v.,- . -.-. -. _ -....- - -_ .. -_ ..., .......: ?ay Online Tax Roll Search - Tangible Property To make a payment, review payment history, or find detailed information on an account, you will need to first search the tangible property records for the account in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadabie data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. errors & insolvencies (E &I), bankruptcy, litigation, issuance of warrants, etc.). View Search By: I Address r Save as File Tax Year: 12011 ( Note: Current Tax Year is 2011) View file format. Address: Fi-200-1.lKismet PKWY W aExtensive Search Number Street Unit seerch-ai Tips Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies littp:/ /www.leetc.comisearch_Criteria. asp ?sea rr.litvnp= TPk�r.= taxes &i =25 &page —id= search... 8/23/2012 Packet Page -689- Lee County Tax Collector's Office si r Home • FAQ • En Espafiol - Contact Us • Printable Version FS-ea Information ' Property Taxes Vehicles 1 Vessels Driver License H;Unting, & Fishing �Local Business Taxes Pay Online 11/13/2012 Item 11.G. .–t, —.-- Show me Page Of 20 fit,.. ea a 0 matches per page Account( Tax Name/ Status/ Real Property Account Year Address Outstanding Balance Sorry, we could not find any matches for your search... Page [a] of 0 Show me 0 matches per page Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. -View Site Policies - View Payment Policies http: / /www.Icetc.com/search resiAts.asp 8/23/2012 — Packet Page -690- Lee County Tax Collector's Office .r Y 11/13/2012 Item 11.G. . -r" . — . Home • FAQ • En Espafiol • Contact Us Y Printable Version search... �trtfotmat fora Property Taxes uehicies t Vessels aciver License Hunting .& Flshting Local .Business. Taxes Pay Online Tax Roll Search -Real Property To make a payment, review payment history, or find detailed information on a parcel, you will need to first search the tax roll for the parcel in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. tax certificate sale, tax deed application, county held tax certificates, errors & insoivencies (E &Q, bankruptcy, litigation, etc.) (: View Search By: IName *- r: Save as File Tax Year. 12011 ` ( Note: Current Tax Year is 2011) View file format. Name: JPoole & Kent I ©Extensive Search ( Note: Please use the format, Last Name First Name ) Seoroh^r,� Tips U3 Copyright O 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http: / /`,Awt,w.leetc. comisearch_Criteria. asp ?searchtvoe =RP &c= taxes &r =24 &page _ id = search... 8/23/2012 Packet Page -691- 11/13/2012 Item 11.G_ Lee County Tax Collector's Office 04 n Home ` FAQ 'EnEspuho ^ Contact Uu^ Printable Version - Infortnation �, Property Taxes. 1 veillcles iYessels , Driver Licem.se Hurftig & Fishing Locaf Business Taxes Pay Online Copyright C2809. Lee County Tax Collector's Office, All rights reserved. ' View Site Policies ' View Payment Policies http://www.lef,tc.com/scarch—results.asp 8/23/20I2 Packet Page '69Z- Page [:a Of 0 Show me KIE4 0 matches per page Account Tax Namel Year Address Status/ Outstanding Balance Sorry, we could not find any matches for your search... ir Page[3 Of 0 Show me LL 0 matches ge Copyright C2809. Lee County Tax Collector's Office, All rights reserved. ' View Site Policies ' View Payment Policies http://www.lef,tc.com/scarch—results.asp 8/23/20I2 Packet Page '69Z- Lee County Tax Collector's Office �1 i'4efS Home • FAQ • En Espanol • Contact Us • Printable Version (Search,,, 11/13/2012 Item 11.G. -6, 1 - 1 Information property Taxes : Vehicles[ Vessels Driver License Hurting Fishing Local Busiriess Taxes Pay online ' Tax Roll Search - Real Property To make a payment, review payment history, or find detailed information on a parcel, you will need to first search the tax roll for the parcel in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. tax certificate sale, tax deed application, county held tax certificates, errors & insolvencies (E &I), bankruptcy, litigation, etc•) (:. View Search By: Address �^ Save as File Tax Year: 12011 ( Note: Current Tax Year is 2011) View file format. Address: 1200 1 r E xtensive Search Number Street searches - rips = .,;a,;f Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http : / /www.leetc. Contilsearch_criteiia. asp ?searchtvne.=R P R:c-- taxes &r =24 &page —id= search... 8/23/2012 Packet Page -693- Lee County Tax Collecn?S'Office J 017-00%-ei(5f, Home • FAQ - En Espafiol • Contact Us • Printable Version ISearch... Dtiver License Hunting & Fishing information Prope!M,Taxes Vehicles f Vessels Local Business Taxes Pay Ordine 11/13/2012 Item 11.G. --I- - -- - IS I% Page = Of I Show me LW I match per page Tax Name/ Status/ Account Year Address Outstanding Balance 34-43,23-CI-02969.000D 2011 CITY OF CAPE CORAL ZEROTAX jlt : r. REAL ESTATE DIVISION 1200 KISMET PKWY W . . . . EE Page Of I Show me . . . . . I match per page Copyright 0 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http://wvv,A,.Ieetc.com/search—results.asp Packet Page -694- 8/23/2012 Lee County Tax Collector's Office �6- -10 Home • FAQ - En EspaW • Contact Us • Printable Version Isearch... I Infornution Propetty Taxes Vehicles I Vessels Driver License Hunting& Fts-hinq Local Business Taxes P. y Online Real Property Information -Ai Account Tax Year Status 34-43-23-Cl-02969.0000 2011 ZEROTAX Original Account Instrument No 34-43-23-Cl-02969.0000 2007000284059 Owner CITY OF CAPE CORAL REAL ESTATE DIVISION Physical Address Mailing Address 1200 KISMET PKWY W CAPE CORAL FL 33993 PO BOX 150027 CAPE CORAL FL 33915 USA Legal Description CAPE CORAL UNIT 42 BLK 2909 PB23/96 BLK 2964 PB23/97 BLK 2968 PB17139 BLK 2969A + 2969B PB17/39 BLK 2974 PB17/42 BLK 2987 P623/97 BLK 2988 PB23/97 BLK 12989 PB23/95 + VAC 2006000412737 I Outstanding Balance as of 8123/2012 $0.00 Additional Options: Tax Detail Payments Made All Unpaid Taxes Tax History Link tc Property Appraiser's Tax Estimator See also: 11/13/2012 Item 11.G. . -I- - -- - Copyright Q 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http : / /www.ltetc.com/search_detail. asp ?account= 344323Ci 029690000&SearchType=RP... 8/23/2012 Packet Page -695- Lee County Property Appraiser - Online Parcel Inquiry 11/13/2012 Item 11.G. Lee County Property Appraiser Tax Year F— a Next Lower Parcel Number Next Higher Parcel Number Tangible Accounts Tax Estimator Cape Coral Fees Tax Bills Print Property Data for Parcel 34- 43- 23 -C1- 02969.0000 i Owner Of Record [ Tax Map Viewer ] Image of Structure CITY OF CAPE CORAL c/o REAL ESTATE DIVISION PO BOX 150027 O O�pe [ Pictometry Aerial Viewer j < Photo Date February of 2010 k Exemptions Homestead / Additional 3ust 6,770,875 Widow / Widower Assessed 6,770,875 Disability Portability Applied 0 Wholly Cap Assessed 6,770,875 Senior Taxable 0 Agriculture Cap Difference 0 + Taxing Authorities Attributes I 0 /0 Land Units Of Measure SF j 0 /0 Units 4295042.00 0 Frontage 0 6,770,875 Depth 0 0 Total Number of Buildings 5 ' 0 Total Bedrooms / Bathrooms 0172.0 Total Living Area 70,614 1st Year Building on Tax Roll 2010 f � I Historic District No j + Sales / Transactions i + Building/ Construction Permit Data + _ - — Parcel Numbering History + Solid Waste (Garbage) Roll Data + Flood and Storm Information + Appraisal Details TRIM (proposed tax) Notices are available for the following tax years [ 2007 2008 2009 2010 20112012 Next Lower Parcel Number Next Hloher Parcel Number New Ouery Search Results Home http : / /www.Ieepa. orgIDisplayIDisplayPareel .aspx ? &BuildingDetail =ON &STRAP = 3443 23... 9/23/2012 Packet Page -696- + Sales / Transactions i + Building/ Construction Permit Data + _ - — Parcel Numbering History + Solid Waste (Garbage) Roll Data + Flood and Storm Information + Appraisal Details TRIM (proposed tax) Notices are available for the following tax years [ 2007 2008 2009 2010 20112012 Next Lower Parcel Number Next Hloher Parcel Number New Ouery Search Results Home http : / /www.Ieepa. orgIDisplayIDisplayPareel .aspx ? &BuildingDetail =ON &STRAP = 3443 23... 9/23/2012 Packet Page -696- @ G dq f,.- n7f R =2 - , sr R �q P1 - '. i 1 ,t , [ .., •-tee i [ a{A. �"F le.r `� � '� } � �r�F�s4 � 11 /13/2012 Item 11.G. Packet Page -698- 11/13/2012 Item 11.G. Packet Page -699- v N m h MI ml C m m - N ❑] ED Packet Page -699- v 11 /13/2012 Item 11.G. Packet Page -700- Co 0 ,, .. w 1 1 P -, 0 S . y Lj ow, a i IF kaw. iRtr1d� _ nL t. 3 -rm- }. r l t 3 ?!q—• � 6 1` 1P 4 1" N Packet Page -700- .. 11 /13/2012 Item 11.G. y LLI .G X X E b 2-1 7 N m m m R1 Q% m z (D C] UaM I o U0¢1 I ■ .. 11 /13/2012 Item 11.G. Packet Page -701- LLI z W.') Bar, z a LL Packet Page -701- 11/13/2012 Item 11.G. Packet Page -702- 11/13/2012 Item 11.G. Packet Page -703- 11/13/2012 Item 11.G. MarkiewiczJoanne Front: Thomas Machinski [Thomas.G.Machinski @us.mwhglobal.com) Sent: Wednesday, September 12, 2012 5:10 PM To: MarkiewiczJoanne Subject: Poole & Kent Cape Coral Office Trailers Joanne, It was a pleasure chatting with you today. I did some research on your query concerning P &K`s project office trailers located at our Cape Coral Program project sites. The last office trailer they had in Cape Coral was at the North Cape RO WTP site, and it was removed in April of 2010. They do have personnel that live in the area, and I cannot say for certain that they do not have an office in the area, however, they no longer have an office trailer at any of the Cape Coral project sites (Everest WRF, 5W WRF, or North Cape RO WTP). Please feel free to contact me at 239 - 825 -0665 (my cell phone) with any additional questions. Best Regards, Tom Machinski, MWH Project Director Packet Page -704- 11/13/2012 Item 11.G. C: olC�er' Co�urcty AdminiWative Senecas Division Purchasing AFFIDAVIT FOR CLAIMING STATUS AS A LOCAL BUSINESS SOLICITATION 0 12 -5931 MASTER PUMP STATION 312 REHABILITATION (CHECK APPROPRIATE BOxES BELOW) State of Florida (Select County if Vendor is described as a Local Business ® Collier County ® Lee County Vendor affirms that it is a local business as defined by the Purchasing Policy of the Collier County Board of County Commissioners and the Regulations Thereto. As defined in Section XI of the Collier County Purchasing Policy; A "local business" is defined as a business that has a valid occupational license issued by either Collier or Lee County for a minimum of one (1) year prior to a Collier County bid or proposal submission that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier or Lee Counties from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not be used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of either Collier or Lee County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to either Collier or Lee County's tax base, and residency of employees and principals of the business within Collier or Lee County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a 'local business" under this section. Vendor must complete the following information: Year Business Established in E]Collier County or ❑ Lee County: 2006 Number of Employees (Including Owner(s) or Corporate Officers): 128 Total employed in Collier /Lee since 2006 Number of Employees Living in x] Collier County or ® Lee (Including Owner(s) or Corporate Officers): 73 Total resided in Collier /Lee since 2006 If requested by the County, vendor will be required to provide documentation substantiating the information given in this affidavit. Failure to do so will result in vendor's submission being deemed not applicable. Vendor Name: Poole & Kent Company of Florida Date: 8/21/2012 Collier or Lee ountyAddress: 1200 Kismet Parkway West, Cape Coral, FL 33993 Signature: '�Gr .—, Title: President & CEO Patrick H. Carr STATE OF FLORIDA: ❑ COLLIER COUNTY ❑ LEE COUNTY S om o nd Sub cribed Before Me, a Notary Public, for the above State and County, on this 21st Day of A T t , 20 2 Christine Mend CHRISTINE MENDEZ Notary Pubic) MY COMMISSION # DO 806798 10/31/2012 ' EXPIRES: October 31, 2012 �� ,. Bonded PubhoUndarwrters c?.: My Commission Expires: �`�_. , Notary (AFFIX OFFICIAL SEAL) Packet Page -705- 20 Construction Services Agreement: Revised 1/1/2012 www.sunbiz.org - Department of State 11/13/2012 Item 11.G. Home Contact Us E- Filing Services Document Searches Forms Help Previous on List Next on List Return To List jEntity Name Search No Events No Name History Submit Detail by Entity Name Foreign Profit Corporation POOLE & KENT COMPANY OF FLORIDA Filing Information Document Number F04000003751 FEI /EIN Number 753163466 Date Filed 07/01/2004 State DE Status ACTIVE Principal Address 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Mailing Address C/O EMCOR GROUP, INC., 301 MERRITT SEVEN 6TH FLOOR NORWALK CT 06851 Changed 06/30/2005 Registered Agent Name & Address CORPORATION SERVICE COMPANY 1201 HAYS STREET TALLAHASSEE FL 32301 -2525 US Officer /Director Detail Name & Address Title VP STRICKLAND, DAVID A 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title VP MACCLUGAGE, BRIAN 1781 N.W. NORTH DRIVE DRIVE MIAMI FL 33126 Title PTCE CARR, PATRICK H 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title CFO Packet Page -706 - http: / /www.sunbiz.org /scripts /cordet.exe ?a(,LIUII— I-,l;.1 11J X.11l%.Ldoc_number--F040000037... 8/23/2012 www.sunbiz.org - Department of State HARRINGTON, RICHARD 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Title VPAS NEESE, CHARLES K 1781 N.W. NORTH RIVER DRIVE MIAMI FL 33126 Annual Reports Report Year Filed Date 2011 05/16/2011 2012 04/23/2012 2012 07/1012012 Document Images Note: This is not official record. See documents if question or conflict. Previous on List Next on List Return To List No Events No Name History I Home I Contact us I Document Searches I E- Filinq Services Forms I Heir CopvrightC and Privacy Policies State of Florida, Department of State 11/13/2012 Item 11.G. Entity Name Search Submit• Packet Page -707- doe_ number= F040000037... 8/23/2012 http: /h�vww.sunbiz.orc, /scripts /cordet.exe ?acLi. ll LL 11 1-1-1 Lee County Tax Collector's Office iY' Home • FAQ • En Espahol • Contact Us • Printable Version ISearch... Inforinatiun Property Taxes Vehicles i Vessels Driver License Hunting & Fishing Local Business Taxes Pay Online Business Tax Account Information IleYr Search Business POOLE & KENT COMPANY OF FLORIDA 1781 NW NORTH RIVER DR MIAMI FL 33125 (305)325-1930 Account 1202799 Description CERTIFIED GENERAL CONTRACTOR Mailing Address PO BOX 420556 MIAMI FL 33242-0556 Year Amount Account is paid current. Outstanding Balance Due as of 8123/2012 $0.03 Additional Options: Payments Made Change Mailing Address 11/13/2012 Item 11.G. Copyright @ 2009, Lee County Tax Collector's Office, All rights reserved. - View Site Policies - View Payment Policies Packet Page -708- http: / /wv�wv.leetc.com /search detail.asp ?accvuL.L ...,,,,-.,,archType=OCCLlC 8/23/2012 Lee County Tax Collector's Office r -, Nome • FAQ • En Espanol • Contact Us • Printable Version Search... CCY 11/13/2012 Item 11.G. Information Property Taxes Vehi le,s d Vessels Driver License Hunting & Fishing Local Business Taxes Pay Online Tax Roil Search - Tangible Property " y To make a payment, review payment history, or find detailed information on an account, you will need to first search the tangible property records for the account in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. errors & insoivencies (E &I), bankruptcy, litigation, issuance of warrants, etc.). {; View Search By: Name - {� Save as File Tax Year: 12011 - { Note: Current Tax Year is 2011) View file format. Name: Poole & Kent I Fr--]Extensive Search ( Note: Please use the format, Last Name First Name ) Searcfi °: Tips _. Start Search Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http:// war. leete. com /search_criteria.asp ?sc.ack.,," .. -709- ..ome &r= 1 &page_id= searchc... 8/30/2012 Lee County Tax Collector's Office Home • FAQ • En Espahol • Contact Us • Printable Version ISearch... lnfortnatioin Property Taxes Vehicles fVewsels Driver License Hunting & Fishing Local Business Taxes Pay Online 11/13/2012 Item 11.G. N-6 W Page E--] of 0 Show me F— 20 7[jjj A�.' 11'slear j 0 matches per page Account/ Tax Real PropeM! Account Year Name/ Address Status/ Outstanding Balance Sorry, we could not find any matches for your search... Page E---1 of 0 Show me F2o7 F 66A Searat 0 matches per page L-1 Copyright @ 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies Packet Page -710- 8130/2012 http://www.leetc.com/search—results.asp Lee County Tax Collector's Office L P Home • FAQ • En Espanol • Contact Us • Printable Version Search... GO I 11/13/2012 Item 11.G. Information ' Property Taxes: Vehicles I Vessels Driver License Hunting .& Fishing Local Business Taxes flay Oniirte _ Tax Roll Search - Tangible Property To make a payment, review payment history, or find detailed information on an account, you will need to first search the tangible property records for the account in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the tee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. errors & insolvencies (E &I), bankruptcy, litigation, issuance of warrants, etc.). {; View Search By: Address �1 {� Save as File Tax Year: 12011 { Note: Current Tax Year is 2011) View file format. Address: 1200 Kismet PKWY W =Fr-]Extensive Search Number Street Unit Start search J Tins Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies htt/ /wu'u,.Ieetc.com/search Criteria.as ?stFacket Page -711 - p: _ p. jr- -- axes &r =25 &page _ id = search... 8/23/2012 Lee County Tax Collector's Office Home • FAQ • En Espahol • Contact Us - Printable Version [Search... Int . or - fnatio n P I r I o I Ve . ri - y Taxes I.." 'etudes . I . . 1V e ss e I's Driver License R unt i iig F1 S kinq Local BUSIness. Taxes Pay Online 11/13/2012 Item 11.G. NPDM�, Page F7;1 Of 0 Show me F207 ILC L , ear , di 0 matches I per page Accaunti Tax Nannet Status/ Outstanding Balance Real Property Account Year Address Sorry, we could not find any matches for your search... 11 Page E-7-1 of 0 Show me — r F2671 1,G q 96ar' 0 matches per page L-71 Copyright C 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies Packet Page -712- 8/23/2012 http://www.leete.com/search—results.asp Lee County Tax Collector's Office 4, �r = Home • FAQ • En Espanol • Contact Us • Printable Version Search... -GO J 11/13/2012 Item 11.G. Inforrriatfon Property Taxes Vehicles t Vessels Driver License I-tr_tnting & Fishing Local Business "fames Pay Online i Tax Roll Search - Real Property T To make a payment, review payment history, or find detailed information on a parcel, you will need to first search the tax roll for the parcel in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Col lector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. tax certificate sale, tax deed application, county held tax certificates, errors & insolvencies (E &1), bankruptcy, litigation, etc.) C. View Search By: Name {^ Save as File Tax Year: 12011 ( Note: Current Tax Year is 2011) View file format. Name: JPoole & Kent ©Extensive Search ( Note: Please use the format, Last Name First Name ) M-F m Start Search Se�rcF° sa Tips =: Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies htt / /www,leetc.com/search criteria.as ?scPacket Page -713 - p� _ p• ,r.. u -- axes &r =24 &page _ id = search... 8/23/2012 Lee County Tax Collector's Office GO I Home • FAQ • En Espanol - Contact Us • Printable Version Search... information Property Taxes Vehicles I Vessels Driver License Hunting & Fishing Local Business Taxes Pay Ontine 11/13/2012 Item 11.G. Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http://www.leete.com/search—results. asp Packet Page -714- 8/23/2012 Pag e 0 of 0 Show me 20 LSe rd1 ' 0 matches per page Tax game! Status/ Account Year Address outstanding Balance Sorry, we could not find any matches for your search... New F Page F---1 of o Show me F20--] �. Search 0 matches per page Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies http://www.leete.com/search—results. asp Packet Page -714- 8/23/2012 Lee County Tax Collector's Office 0, ni Y ' L Home • FAQ • En Espanol • Contact Us • Printable Version Search...' 11/13/2012 Item 11.G. Information Property Taxes Vehicles t Vessels Driver Livense Hunting w Fishing Local Business Taxes Pay Online Tax Roll Search - Real Property To make a payment, review payment history, or find detailed information on a parcel, you will need to first search the tax roll for the parcel in question. When searching or making a payment for an Installment account, select the correct tax year for the installment plan. To streamline your search, various criteria are available for selection below. A summary of your results will be displayed. To view details, just click on the Account Number or Details button. The downloadable data provided to the Public is in standard, industry accepted, either Tab or Comma Delimited format. The Tax Collector's Office is not responsible for assisting or training the public in how to use these files. The results to your tax search are based upon information provided to the Lee County Tax Collector by the Lee County Property Appraiser. This website should not be relied upon for a title search. Amounts due are subject to change without notice due to statutory compliance (i.e. tax certificate sale, tax deed application, county held tax certificates, errors & insolvencies (E &I), bankruptcy, litigation, etc.) {; View Search By: Address {~ Save as File Tax Year: 12011 ( Note: Current Tax Year is 2011) View file format. Address: F1 2-0 —0-1 Kismet PKWY W ❑Extensive Search Number Street RStartYSearc hl 8irarefi� a Tips Copyright © 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies Packet Page -715 - http://v A,", w. leetc. com /search_criteria.asp ?sc.,.,,,, ,,., ,u t,%.v taxes &r= 24 &page_id= search... 8/23/2012 Lee County Tax Collector's Office Home • FAQ • En Espahol • Contact Us • Printable Version ISearch... Information Property Taxes Vehicles) Vessels Driver License Hunting Fishing Local Business Taxes Pay 011fitte 11/13/2012 Item 11.G. NeW --- lof I Page F 1 Show me K11 U.-C I match per page Tax Name/ Status/ Account Year Address Outstanding Balance 34-43-23-CI-02969.0000 2011 CITY OF CAPE CORAL ZEROTAX REAL ESTATE DIVISION 1200 KISMET PKWY W N I Page F1--1 of I Show me r I IPA -S66r' % I match per page L-77 Copyright @ 2009, Lee County Tax Collector's Office. All rights reserved. - view Site Policies - View Payment Policies http://,Ar\vw.leetc.com/search—results.asp Packet Page -716- 8/23/2012 Lee County Tax Collector's Office Home • FAQ • En Espanol • Contact Us • Printable Version Search... Information Propel ter Tares Vehicles t Vessels Driver License Hunting & Fishing Local Business Taxes Pay Online r ,. 7 M i Real Property Information Search . Account Tax Year Status 34-43-23-Cl-02969.0000 2011 ZE R OTAX Original Account Instrument No 34- 43- 23 -C1- 02969.0000 2007000284059 Owner CITY OF CAPE CORAL REAL ESTATE DIVISION Physical Address Mailing Address 1200 KISMET PKWY W CAPE CORAL FL 33993 PO BOX 150027 CAPE CORAL FL 33915 USA Legal Description CAPE CORAL UNIT 42 BLK 2909 P623/96 BLK 2964 PB23/97 BLK 2968 PB17/39 BLK 2969A + 2969B PB17/39 BLK 2974 PB17/42 BLK 2987 PB23/97 BLK 2988 PB23/97 BLK 2989 PB23/95 + VAC 2006000412737 Outstanding Balance as of 8/2312012 $0.00 Additional Options: Tax Detail Payments Made All Unpaid Taxes Tax History Link to Property Appraiser's Tax Estimator See also: 11/13/2012 Item 11.G. Copyright O 2009, Lee County Tax Collector's Office. All rights reserved. - View Site Policies - View Payment Policies Packet Page -717 - http: // vow",. leetc. com /search_detail.asp ?accUUIIL ✓- TT✓LJ.,1 vL9690000 &SearchType =RP... 8/23/2012 Lee County Property Appraiser - Online Parcel Inquiry 11/13/2012 Item 11.G. Q WLee County Property Appraiser Tax Year F---:-] Next Lower Parcel Number Next Higher Parcel Number Tangible Accounts Tax Estimator Cape Coral Fees Tax Bills Print Property Data for Parcel 34- 43- 23 -C3.- €12969.0000 Owner Of Record [ Tax Map Viewer ] Image of Structure CITY OF CAPE CORAL Land Units Of Measure c/o REAL ESTATE DIVISION Units PO BOX 150027 q�ile CAPE CORAL FL 33915 Depth Site Address Total Number of Buildings 1200 KISMET PKWY W Gfy RG s��] j CAPE CORAL FL 33993 Description Total Living Area 0 Legal 9 I 0 o CAPE CORAL UNIT 42 is BLK 2909 PB23/96 BLK 2964 PB23/97 On' ' BLK 2968 PB17/39 BLK 2969A + 2969B �jl� S PB17/39 BLK 2974 PB17/42 BLK 2987 PB23/97 BLK 2988 PB23/97 BLK 2989 PB23/95 + VAC 2006000412737 I i Classification / DOR Code MUNICIPAL - OTHER / 89 Property Values (2012 TRIM) Just Assessed Portability Applied Cap Assessed Taxable Cap Difference [ Pictometry Aerial Viewer ] C Photo Date February of 2010 Exemptions Homestead / Additional 6,770,875 Widow / Widower 6,770,875 Disability 0 Wholly 6,770,875 Senior 0 Agriculture 0 Attributes 0 /0 Land Units Of Measure 0 /0 Units 0 Frontage 6,770,875 Depth 0 Total Number of Buildings 0 Total Bedrooms / Bathrooms Total Living Area 0 1st Year Building on Tax Roil G Historic District SF 4295042.00 t 0 0 I 5 i 0/22.0 70,614 2010 No TRIM (proposed tax) Notices are available for the following tax years [ 2007 2008 2009 2010 2011 2012 ] Next Lower Parcel Number Next Higher Parcel Number New Qum Search Results Home http: / /wwvv.Ieepa.org /Display /DisplayParce..— Yket Page - 718 -)etail =ON &STRAP= 344323... 8/23/2012 is r` I y 1b" _ �,•,a�,s tsn�C1F` n - K Y .,r9smeS�F?kry.tsUa= �i:isme F r6 „'�FV'v`ar.25rL�'S,a�«;�.�_ tetra :-'i' .�-- �.�.r- .c- �tu�,.�:�,a. ,x- ..sr�z -:ah 1' ..s�t1IS - z. -.._ �i.cs� ._m. �i [!{ir ✓2'3s�$ °"�, lil f hi�kt2errac> ,��a�' «2c�nr�oiP�rcacS, 11/13/2012 Item 11.G. 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MarkiewiczJoanne From: Thomas Machinski [ Thomas .G.Machinski @us.mwhglobal.com] Sent: Wednesday, September 12, 2012 5:10 PM To: MarkiewiczJoanne Subject: Poole & Kent Cape Coral Office Trailers Joanne, It was a pleasure chatting with you today. I did some research on your query concerning P &K's project office trailers located at our Cape Coral Program project sites. The last office trailer they had in Cape Coral was at the North Cape RO WTP site, and it was removed in April of 2010. They do have personnel that live in the area, and I cannot say for certain that they do not have an office in the area, however, they no longer have an office trailer at any of the Cape Coral project sites (Everest WRF, SW WRF, or North Cape RO WTP). Please feel free to contact me at 239 - 825 -0665 (my cell phone) with any additional questions. Best Regards, Tom Machinski, MWH Project Director Packet Page -728- 11/13/2012 Item 11.G MarkiewiczJoanne From: Wanda Roop [wroop @capecoral.net] Sent: Wednesday, September 26, 2012 4:22 PM To: MarkiewiczJoanne Cc: William P. Burtrey Subject: FW: Poole & Kent Joanne, Procurement contacted both the RO Plant and Utilities Administration and have confirmed that Poole and Kent does not have a employees, trailer and /or modular office located at 1200 Kismet. What they do have is two storage containers with tools at the 1200 Kismet location. Poole and Kent does occasionally come on site for warranty work. If you have any questions, or need additional information, please let me know. Regards, Wanda Roop Procurement Manager City of Cape Coral (239) 574 -0833 1 Packet Page -729- ARNSTEIN & LEHR LLP ATTORNEYS AT LAW SINCE 1893 September 19, 2012 Via E -Mail and U.S. Mail Ms. Joanne Markiewicz Interim Purchasing Director Collier County Government Purchasing Department 3327 Tamiami Trail East Naples, FL 34112 11/13/2012 Item 11.G. 515 North Flagler Drive • Suite boo West Palm Beach, Florida 33401 Phone 561.833.9800 • Fax 561.655.5551 wwmarnstein.corn Stuart H. Sakwa 561- 650 -8484 shsakwa@arnstein.com Re: Solicitation #12 -5952, NCWRF Aerated Sludge Holding Tank, No. 3 Collier County Public Utilities Planning & Project Management 3339 Tamiaml Trail East; Suite 303 Naples, FL 34112 Subj: Bid Protest Decision Dear Ms. Markiewicz: This acknowledges receipt of your Protest Decision letter dated September 13, 2012. Please be advised that your letter was not received until September 17, 2012, because the e-mail address listed on the letter contains a misspelling. In your decision letter, you indicate that rather than address Poole & Kent Company of Florida's (Poole & Kent's) substantive challenge to the County's Local Vendor Preference, you have determined that Poole & Kent should be disqualified because its Affidavit for Claiming Status as a Local Business, "appears to contain false information. You then identify the basis for your conclusion as Lee County property records, aerial photographs and records, and the statement of an employee from MWH Global. It is improper for the County to make a determination that Poole & Kent should be disqualified based upon appearances, rather than on actual facts. While you listed a few items that make it "appear" as if Poole & Kent does not have a physical business address, you omitted other facts that the County was actually aware of that demonstrate that Poole & Kent actually has a physical business address in Lee County. 10370018.9 CHICAGO HOFF,NIAN ESTATES SPRINGFIELD NUIRAUKEE FORT LAUDERDALE INMI II TATIVSPA WEST I'ALN1 BEACH nOCA BATON Arnstein & Lehr LLP is a member of the International La- ,xTers Network Packet Page -730- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 19, 2012 Page 2 Poole & Kent does not dispute that the Lee County property records do not reflect the existence of its trailer on the City of Cape Coral's property. However, as noted in its Bid Protest Letter, the payment of property taxes is not a requirement of the Local Vendor Preference policy, and is not evidence of whether Poole & Kent has a physical business address. As to the aerial photographs, and Google images, the information you provided In unintelligible due to the poor copying quality. While Poole & Kent does not dispute that its large office trailer was removed from 1200 Kismet Parkway West, Cape Coral, FL 33993; Poole & Kent still has another trailer at this location from which it performs its on -going business in Lee County, including the performance of warranty work for the City of Cape Coral Utility Department. With regards to your reliance on Mr. Machinski's statement, such "evidence" it is double hearsay. First, the County is relying on an unsworn statement from Mr. Machinski. Second, Mr. Machinski's e-mail to you indicates that he does not have personal knowledge of whether Poole & Kent has a trailer on site, as he says that he, "did some research" to answer your question. Poole & Kent was informed by an employee at the City of Cape Coral that last week someone from Collier County went to the City of Cape Coral project site, spoke with the employee of the City of Cape Coral about Poole & Kent's performance of work, and took photographs of Poole & Kent's existing trailer at the 1200 Kismet Parkway West address. Thus, it appears that the County is ignoring direct evidence of the existence of Poole & Kent's physical address that it obtained though personal observation, and is instead relying upon the "appearance" of a lack of a physical address to justify its actions. Pursuant to Section XIX.F of the County's purchasing policy, this letter shall serve as Poole & Kent's written objection to your decision. Furthermore, in accordance with Section XIX.G of the County's purchasing policy, Poole & Kent requests that the County Manager appoint an independent hearing officer to review the facts and conduct a hearing into Poole & Kent's bid protest. In the alternative, pursuant to Section XIX.H 10370018.1 Packet Page -731- 11/13/2012 Item 11.G. ARNSTEIN & LEHR LLP Ms. Joanne Markiewicz September 19, 2012 Page 3 Poole & Kent is willing to meet and discuss resolution of its bid protest by mutual consent. Respectfully submitted, Stuart H. Sakwa On behalf of the Poole & Kent Company of Florida cc: Poole & Kent Company of Florida Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 10370018.1 Packet Page -732- 11/13/2012 Item 11.G. Local Vendor Preference Policy XI. Procedure to Provide Preference to Local Businesses in County Contracts. Except where otherwise provided by federal or state law or other funding source restrictions or as otherwise set forth in the purchasing policy, purchases of commodities and services shall give preference to local businesses in the following manner: (1) "Local Business" defined Local business means the vendor has a valid occupational license issued by Collier County at least one year prior to bid or proposal submission to do business within Collier County that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier County from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not by used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a "local business" under this section. A vendor who misrepresents the Local Preference status of its firm in a proposal or bid submitted to the County will lose the privilege to claim Local Preference status for a period of up to one year. (2) Preference in purchase of commodities and services by means of competitive bid, request for proposals, qualifications or other submittals and competitive negotiation and selection. Under any such applicable solicitation, bidders /proposers desiring to receive local preference will be invited and required to affirmatively state and provide documentation as set forth in the solicitation in support of their status as a local business. Any bidder /proposer who fails to submit sufficient documentation with their bid /proposal offer shall not be granted local preference consideration for the purposes of that specific contract award. Except where federal or state law, or any other funding source, mandates to the contrary, Collier County and its agencies and instrumentalities, will give preference to local businesses in the following manner: (a) Competitive bid (local price match option). Each formal competitive bid solicitation shall clearly identify how the price order of the bids received will be evaluated and determined. When a qualified and responsive, non -local business submits the lowest price bid, and the bid submitted by one or more qualified and responsive local businesses is within ten percent of the price submitted by the non -local business, then the local business with the apparent lowest bid offer (i.e.; the lowest local bidder) shall have the opportunity to submit, an offer to match the price(s) offered by the overall lowest, qualified and responsive bidder. In such instances, staff shall first verify if the lowest non -local bidder and the lowest local bidder are in fact qualified and responsive bidders. Next, the Purchasing Department shall determine if the lowest local bidder meets the requirements of Section 287.087, F.S. If the lowest local bidder meets the requirements of 287.087, F.S., the Purchasing Department shall invite the lowest local bidder to submit a matching offer to the Purchasing Department which shall be submitted to the Purchasing Department within five (5) business days thereafter. If the lowest local bidder submits an offer that fully matches the lowest bid from the lowest non -local bidder tendered previously, then award shall be made to the local bidder. If the lowest local bidder declines or is unable to match the lowest non -local bid price(s), then award will be made to the lowest overall qualified and responsive bidder. If the lowest local bidder does not meet the requirement of Section 287.087, F.S. and the lowest non -local bidder does, award will be made to the bidder that meets the requirements of the reference state law. Packet Page -733- 11/13/2012 Item 11.G. (b) Request for proposals, qualifications or other submittals and competitive negotiation and selection. For all purchases of commodities and services procured through the Competitive Proposals (Section VI) or Competitive Selection and Negotiation (Section VIII) methods not otherwise exempt from this local preference section, the RFP solicitation shall include a weighted criterion for local preference that equals 10 percent of the total points in the evaluation criteria published in the solicitation. Purchases of professional services as defined and identified under subsection VI1.B.2 (which are subject to Section 287.055, F.S.) and subsection'VII.B.3 (which are subject to Section 11.45, F.S.) shall not be subject to this local preference section. (3) Waiver of the application of local preference. The application of Local Preference to a particular purchase or contract for which the Board of County Commissioners is the awarding authority may be waived upon approval of the Board of County Commissioners. (4) Comparison of qualifications. The preferences established herein in no way prohibit the right of the Board of County Commissioners to compare quality of materials proposed for purchase and compare qualifications, character, responsibility and fitness of all persons, firms or corporations submitting bids or proposals. Further, the preferences established herein in no way prohibit the right of the County Commission from giving any other preference permitted by law instead of the preferences granted herein. (5) Reciprocity. In the event Lee County, or any other Florida county or municipality ( "local government ") deemed appropriate by the Collier County Board of Commissioners, extends preferences to local businesses, Collier County may enter into an interlocal agreement with such local government wherein the preferences of this section may be extended and made available to vendors that have a valid occupational license issued by that specific local government to do business in that local government that authorizes the vendor to provide the commodities and services to be purchased, and a physical business address located within the limits of that local government. Post Office Boxes are not verifiable and shall not be used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of the said local government whichever is applicable, in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to that local government's tax base, and residency of employees and principals of the business located within the limits of that local government. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a "local business" under this section. In no event shall the amount of the preference accorded other local government firms exceed the amount of preference that such local government extends to Collier County firms competing for its contracts. (6) Purview and administration of this policy. This policy shall apply to all departments and units under the direct purview of the Board of County Commissioners. The Purchasing Department shall be responsible for developing, implementing and maintaining administrative procedures in support of this policy. (7) Subsequent Review and Sunset Provision. Pursuant to the adopting resolution, this local preference section is being added to the purchasing policy in support of the local economy during difficult economic times in Collier County. On or about one year of the effective date, the Purchasing Department will provide the Board with an update of the results and impacts to date of this local preference policy. Within two years of the effective date, the Board shall receive a similar report from the Purchasing Department and shall determine whether to continue or modify this policy. Should the Board not elect to continue the local preference policy, it will expire at that time. Packet Page -734- 11/13/2012 Item 11.G. Agenda Item No. 1 UU March 9, 2010 Page 1 of 57 EXECUTIVE SUMMARY Recommendation to award a construction contract in the amount of $2,904,563.00 for the North County Regional Water Treatment Plant "Finished Water Quality and Odor Control Compliance Project" to Cardinal Contractors, Inc., Bid #10 -5423, Project Number 71002. OBJECTIVE: The public purpose is to meet operational and reliability needs, to meet the demand for potable water, and to stay in compliance with all regulatory requirements at the North County Regional Water Treatment Plant (NCRWTP). CONSIDERATION: On June 24, 2008, Agenda Item IOG, the Board of County Commissioners (Board) adopted the 2008 Water Master Plan Update that identified the requirement for improving finished water quality and odor control at the NCRWTP. The proposed scope of work is consistent with the 2008 Water Master Plan Update, Project 71002, "NCRWTP High Total Dissolved Solids Reverse Osmosis Design, Construction, and Supply," Section 8, Table 8 -2, page 1 of 5, line 26. The design for the entire NCRWTP 2- Million Gallons per Day (MGD) Reverse Osmosis Program is complete; however, the water department intends to implement the program in two phases: 1. NCRWTP Finished Water Quality and Odor Control Compliance Project — Replacement of the degasifier system and the addition of an odor control system in fiscal year 2010, to improve the quality of finished water, the efficiency of the water treatment processes, and the efficiency of controlling odors. 2. NCRWTP Raw Water Quality Compliance Project — Future construction of 2 -MGD of reverse osmosis capacity to treat groundwater that has changed in quality (high total dissolved solids) making four high production wells unusable, significantly reducing the production capacity of the wellfield. Continued eastward movement of the plume of groundwater high in total dissolved solids has the potential to negatively impact additional wells, further reducing the production of the wellfield. This phase is being deferred and will be implemented at an event - driven later date. Finished water quality at the NCRWTP is very difficult and costly to maintain. Turbidity and nitrification are difficult to control. Turbidity and nitrification events tend to cause rapid degradation of chlorine, which in turn threatens the ability to remain in compliance with water quality, disinfection, and pH levels. Maintaining all of these items is critical for sustaining compliance in potable water quality, thereby ensuring public health. During nitrification events, costly. large -scale system flushing and temporary increases in the amount of very expensive disinfection chemicals are utilized. While the Water -Sewer District has not had any such event lead to a requirement for a public notification, there is significant risk of not complying with regulations until the degasification equipment is upgraded. In addition to improving water quality, the improved degaslification process will provide an annual savings in chemicals and labor costs of approximately $450,000. Refer:nce the attached Business Case for further details. Packet Page -735- Executive Summary NCRWTP Finished Water Quality and Odor Control Compliance, Project 71002 Page '_ 11/13/2012 Item 11.G. Haenca item NO. I uv March 9, 2010 Page 2 of 57 Additional savings will be realized by the county purchasing the major equipment directly, thereby avoiding sales tax. The existing odor control system is not a direct public health concern; however, the system is marginal and occasionally odor complaints are received from residents in the area surrounding the plant. The construction of four new degasifier towers and one new odor control scrubber will ensure that the NCRWTP remains in compliance with the Public Utilities Division's "good neighbor" policy of generating no offsite odors. Deferring the Raw Water Quality Project (Phase 2 of the original program) does represent an operational risk; without the 2 -MGD of high pressure reverse osmosis equipment, there is the potential for saltwater to migrate into the wells that are currently used, rendering them unusable. However, the risk is expected to be manageable in the short term. Long term, the project wellfield consultant, Camp Dresser & McKee, predicts that the migration of saltwater into the aquifer will eventually occur, and it will be necessary to mitigate this degradation of the water supply by constructing the additional 2 -MGD of reverse osmosis capacity that will use the four wells that are currently unusable as the raw water source for the project. Each existing well represents a capital investment of approximately $1,000,000; Phase 2 of the project will recover the lost capital investment in infrastructure of the currently unusable four wells, and will protect the capital investment that we have in other potentially impacted wells in the wellfield. Currently, this requirement, defined as Phase 2, is not programmed until after 2015, unless there is an earlier change in wellfield water quality conditions. Value engineering activities were conducted at the 60 and 90 percent design completion milestones. These reviews identified key cost - drivers, generated alternatives through the use of creative thinking, and resulted in filling the need reliably at the lowest life -cycle cost without sacrificing project requirements for safety, quality, operations, maintenance, and environmental protection. Bid #10 -5423 was advertised on December 30, 2009; 1,136 notices were mailed and 165 prospective bidders downloaded plans and specifications. On February 5, 2010, sealed bids for the construction of this project were opened. Eight bids were received and are summarized in the followina table: BIDDER Cardinal Contractors, Inc. Mitchell and Stark Construction Co., Inc. TLC Diversified John Reynolds and Sons John J. Kirklin Douglas N. Higgins, Inc. Westra Construction AH Salace Construction Group Packet Page -736- BID $2,904,563.00 $3,116,416.00 $3,308,350.00 $3,347,332.00 $3,350,432.00 $3,365,972.00 $4,016,332.00 $4;054,000.00 Executive Summary NCRWTP Finished Water Quality and Odor Control Compliance, Project 71002 Page 3 11/13/2012 Item 11.G. rNyeuue u.=111 ivu. ivv March 9, 2010 Page 3 of 57 Section XiX of the Collier County Purchasing Policy, has a provision for Local Vendor Preference (LVP). Purchasing Staff has extended a right to match the offer to Mitchell and Stark Construction Co., Inc., a local contractor who has agreed to match the overall low bid of $2,904,56' ).00. Shortly after receiving Mitchell & Stark's matching offer, staff was contacted by the apparent lowest bidder, Cardinal Contractors, Inc., which maintains that it qualifies for the local vendor preference. Cardinal Contractors had filed the required LVP affidavit with its bid, but purchasing staff was initially unable to verify whether Cardinal Contractors has a local address or a Collier County occupational license, both of which are pre- requisites for qualifying as "local" under the LVP policy. Subsequently, staff met with Cardinal Contractors and learned that Cardinal Contractors has been the prime contractor on a wastewater plant expansion project for the City of Marco Island and has had an office trailer on the construction site for nearly two years. They anticipate remaining on site for at least another full year. Further, Cardinal Contractors provided evidence of holding Collier County occupational licenses in the past, but stated that they were told by the Collier County Tax Collector's Office in recent years that they no longer needed an occupational license in Collier County due to changes in state law. Additionally, Cardinal Contractors stated on their LVP affidavit that they presently have twenty employees who are Collier County residents. The facts regarding Cardinal Contractors in this matter are strikingly similar to those pertaining to the award of ITB 08 -5106 in September 2008. In that instance, Astaldi Construction Corporation was the apparent low bidder. Like Cardinal Contractors, Astaldi did not have a current occupational license, despite efforts to obtain one through the Tax Collector's Office; Astaldi did not have a traditional permanent local address; and, Astaldi had a construction office on a job site within Collier County and had been there for several months prior to bidding the new contract. As with Cardinal Contractors, Astaldi employed several Collier County residents. Staff brought the Astaldi situation to the Board on September 9, 2008, and after reviewing the facts in that situation, the Board deemed Astaldi Construction Corporation to be "local" under the LVP policy and subsequently awarded Astaldi the pending contract. Based on that action and the similarity of the facts in this case, staff is recommending that the offer from Mitchell & Stark to match Cardinal Contractors's bid offer be declined and that the Board award ITB 10- 5423 to Cardinal Contractors, Inc., in the amount of $2,904,563.00. This amount is 26- percent less than the $3,933,000.00 revised engineer's estimate provided by the Engineer of Record, HDR Engineers, Inc. (A letter of recommendation from the Engineer of Record is attached.) The recommended award price includes all bid items except Item 2 which will be procured separately. FISCAL IMPACT: Funding is available in and is consistent with the FY10 Capital Budget approved by the Board on September 24, 2009. The source of funding is the Water User Fee Fund (412). Packet Page -737- 11/13/2012 Item 11.G. hgenca rcem ivo. -i uu March 9, 2010 Executive Summary Page 4 of 57 NCRWTP Finished Water Quality and Odor Control Compliance, Project 71002 Page 4 LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office and is legally sufficient. —JBW GROWTH MANAGEMENT IMPACT: This project meets current Growth Management Plan standards to insure the viability of public facilities. RECOMMENDATION: That the Board of County Commissioners, Ex- officio the Governing Board of the Collier County Water -Sewer District: 1. Award Bid 10 -5423 "NCRWTP Finished Water Quality and Odor Control Compliance" to Cardinal Contractors, Inc. 2. Authorize the Chairman to sign the standard construction contract after review and approval by the County Attorney's Office. PREPARED BY: Tom Chmelik, P.E., PMP, Principal Project Manager, Public Utilities Division. Packet Page -738- 11/13/2012 Item 11.G. Requesting Board decision on local preference for Bid No. 08 -5106 & #8211; & #8220;Santa Barbara Boulevard Extension (Rattlesnake Hammock Road to Davis Boulevard)& #8221;, Project No. 60091. (Steve Carnell and Jay Ahmad) Prepared By: Department Date Purchasing 8/28/2008 4:12:06 PM Approved By: Department Approval Date Adminstrative Approved 8/31/2008 11:18 AM Services Approved By: Department Approval Date Office of Management Approved 8/31/2008 2:18 PM and Budget Approved By: Department Approval Date County Manager's Office Approved 8/31/2008 2:43 PM ATTACHMENTS: Name: Description: D 08- 5106 Astaldi and local preference decision rev Executive Summary 12-08 08 .doc Packet Page -739- Type: Executive Summary 11/13/2012 Item 11.G. � WOODWARD, PIRES & LOMBARDO, P.A. ATTORNEYS AT LAW Packet Page -740- - - - February 25, 2010 CRAIG Iz WOODWARD Bowdc a2IiSMlc MARK). WOODWARD "°'"` ✓'� ;"" 444 P: -, j. t Hand Delivery ANTHONY R FIRES, )R Bm,dC.n6eacry,CaunrA `EB 1 5 20 10 a„dL�calGovemmrnc Steve Carrell, C.P.M. ).CHRISTOPHERLOMBARDO STEVEN V.BLOUNT Purchasing Director, Collier County 3301 E. Tamiami Trail((�)� CARR7E I- LADEMAN Building G Naples, Florida 34112 -3969 CARLO F. ZAMPOGNA Re: Formal Written Protest of Mitchell & Stark Construction Co., Inc., JENNIFER L DEVRIES With Regards To A Recommended Contract Award: NCRWTP Degasifier JENNIFERM.TENNEY and Odor Control Expansion, Collier County Bid #10 -5423, also described as Bid 10 -5423 "NCWTP Finished Water Quality and Odor Control Compliance Project ". ( "Formal Written Protest"] Dear Mr. Carnell: This law firm represents Mitchell & Stark Construction Co., Inc., (Mitchell & Stark) concerning its. Formal Written Protest relating to the recommended award of Collier County Bid #10 -5423 to Cardinal Contractors, Inc. Attached please find for filing an original -and one (1) copy of the timely filed Mitchell & Stark Formal Written Protest With Regards To A Recommended Contract Award NCRWTP Degasifier and Odor Control Expansion, Collier County Bid #10 -5423, also described as Bid #10 -5423 ". "NCWTP Finished Water Quality and Odor Control Compliance Project Please provide written acknowledgement that this Formal Written REPLY TO: Protest has been timely filed and received by the Purchasing Director of 3200 TAMIAMI TRAIL N. Collier County. SUITE 200 NAPLES, FL 34103 239- 649 -6555 We would respectfully request that this law firm and Mitchell & Stark 239 - 649 -7342 FAX be provided, in writing, advance notice of the date and time of any meeting, Q 606 BALD EAGLE DRIVE gathering, or hearing et, convened, scheduled or established to consider g SUITE 500 PO. BOX ONE this timely filed Formal Written Protest, with such written notice being MARCO ISLAND, FL-34146 239-394 -5161 provided to both parties not less than two (2) business days in advance of 239 - 642 -6402 FAX said meeting, gathering or hearing. W W. W P L —LEGA LCOM Packet Page -740- - - - 11 /13/2012 Item 11. G. In addition, as outlined within the Formal Written Protest, as not all of the documents and materials requested from Collier County have been provided pursuant to a public records request, Mitchell & Stark reserves the right to amend and supplement the Formal Written Protest once additional materials are provided. Should you have any further questions please do not hesitate to contact me. Since ; Mitchell & Stark Construction Co., Inc, A t y� r' J r. By: r Brian Penner, CEO APP /Ig Enclosure(s) C Packet Page -741- 11/13/2012 Item 11.G. FORMAL WRITTEN PROTEST OF MITCHELL & STARK CONSTRUCTION CO., ,INC. WITH REGARDS TO A RECOMMENDED CONTRACT AWARD DATE: February 25, 2010 1. NAME AND ADDRESS OF COUNTY AGENCY AFFECTED AND THE BID NUMBER AND TITLE: Administrative Services Divisions, Purchasing and General Services 3301 E. Tamiami Trail, Building G, Naples, Florida and Public Utilities Division, 3301 E. Tamiami Trail, Naples, Florida 34112 NCRWTP Degasifier and Odor Control Expansion, Collier County Bid #10- 5423 also described as Bid 10 -5423 "NCWTP Finished Water Quality and Odor Control Compliance Project ". 2. NAME AND ADDRESS OF PROTESTING PARTY: It Mitchell & Stark Construction Co., Inc. 6001 Shirley Street Naples, Florida 34109 LA 3. STATEMENT OF DISPUTED ISSUES OF MATERIAL FACTS. Mitchell & Stark Construction Co. Inc., [hereinafter "M &S "]; A. Disputes and contests that Cardinal Contractors, Inc., [hereinafter "Cardinal "] qualifies as a "Local Business" as defined within Section XI of the Collier County Purchasing Policy. The preference to Local Businesses in Collier County contracts is also at times referred to by Collier County as the Local Vendor Preference (LVP) policy. B. Disputes and contests that Cardinal possesses a valid Collier County occupational license (or business tax receipt [ "BTR"] as it is now called). - 1 - Packet Page -742- 11/13/2012 Item 11.G. C. Disputes and contests that Cardinal possessed any Collier County occupational license or BTR for the years 2005 to the present (i.e. a total of 5 years). D. Disputes and contests that Cardinal has a physical business address within the limits of Collier County. E. Disputes and contests that Cardinal has contributed to the economic development and well -being of Collier County in a verifiable and measurable way. F. Disputes and contests the recommendation of the County Staff, as outlined in the Executive Summary referenced herein, to award Bid 10- 5423 "NCWTP Finished Water Quality and Odor control Compliance ", to Cardinal. G. Disputes and contests Collier County not accepting M &S's match pursuant to Collier County's Purchasing Policy of the overall low bid made by a non -local business. 4. CONCISE STATEMENT OF THE ULTIMATE FACTS ALLEGED AND OF ANY RELEVANT RULES REGULATIONS STATUTES AND CONSTITUTIONAL PROVISIONS ENTITLING THE PROTESTING PARTY TO RELIEF. On December 30, 2009, Collier County Bid #10 -5423 was advertised, (see Exhibit "A ", Bid Packet). On February 5, 2010, eight (8) sealed bids for the construction of the project were received and opened. As outlined in the Executive Summary for the February 23, 2010 County Commission Agenda (see Exhibit "B ") the eight bids are summarized as follows: BIDDER BID Cardinal Contractors, Inc. $2,904,563.00 Mitchell and Stark Construction Co., Inc. $3,116,416.00 TCL Diversified $3,308,350.00 John Reynolds and Sons $3,347,332.00 John J. Kirkiin $3,350,432.00 -2- Packet Page -743- 11/13/2012 Item 11.G. Douglas N. Higgins, Inc. $3,365,872.00 Westra Construction $4,016.332.00 AH Salace Construction Group $4,054,000.00 M &S is the lowest Local Business bidder. The bid.of M &S is attached hereto as Exhibit "C" and that of Cardinal as Exhibit "D ". Collier County has adopted a Purchasing Policy (see Exhibit "E "). The Purchasing Policy provides in Section Vi that award of Bid Contract shall be made by the Board to the lowest, qualified and responsive bidder, except where otherwise provided for in this policy or unless an exception is granted by the Board (see p. 4 of "Exhibit "E "). Section XI of the Purchasing Policy has a "Procedure to Provide Preference to Local Businesses in County Contracts ". (see pp. 11 -13, of Exhibit "E ")' Applying the LVP policy and provisions of Section XI of the It Purchasing Policy, Collier County extended to the Local Business M &S a right to match the overall low bid of $2,904,563.00 submitted by the non - local business Cardinal. On February 8, 2010 M &S, as a qualified and responsive Local Business, and as the lowest local bidder, provided its written offer to Collier County that fully matched the price offered by Cardinal, i.e. M &S fully matched the lowest bid from the lowest non -local bidder Cardinal.(the "Match ", see Exhibit "F ") After M &S agreed to match the overall low bid of $2,904,563.00, Collier County staff contacted Cardinal. Thereafter, according to the Executive Summary, County staff, unknown to M &S, subsequently met ' This "Local Business Preference" is at times also referred to by Collier County as "Local Vendor Preference" and will be referred to as LVP or LVP policy throughout. 11912 Packet Page -744- 11/13/2012 Item 11.G. with Cardind and Cardinal has apparently asserted to County staff that Cardinal has been the prime contractor on a wastewater plant expansion project for the City of Marco Island and had an office trailer on the construction site for nearly two years. According to the Executive Summary, Cardinal apparently also asserted to County staff that Cardinal anticipated remaining on site for at least another full year. County staff also stated that Cardinal provided evidence of holding Collier County occupational licenses in the past (but asserted that they were told by the Collier County Tax Collector's Office in recent years that they no longer needed an occupational license in Collier County due to changes in state law). The Collier County Tax Collector's website clearly states that: "Any business operating anywhere in Collier County (even inside city limits of Naples, Marco Island, Everglades City) must have a county business tax receipt." (see Exhibit "G ") On February 17, 2010, nine (9) days after M &S agreed to match the overall low bid of $2,904,563.00, M &S was contacted by Steve Carnell, the Purchasing Director for Collier County. In that conversation, Mr. Camell advised Mr. Brian Penner, CEO of M &S, that Cardinal told County staff that Cardinal had a Collier County occupational license three years ago but has not had one the last two years asserting that the Tax Collector told Cardinal they did not need one. As outlined below, an online search of the Collier County Tax Collector's data as to occupational licenses or Local Business Tax Receipt reflects that Cardinal did not hold or possess any occupational license or Local Business Tax Receipt in Collier County between 2005 and today. In order for someone to obtain a 2 Believed to have occurred on February 11, 2010. 3 By virtue of legislative changes effective January 1, 2007, "occupational license" was amended to read "Local Business Tax Receipt". Section 205.022, F.S. See Exhibit "H '. Throughout this protest the terms 'occupational license' and "Local Business Tax Receipt" may be used interchangeably. This change in terminology did not change the obligation to pay the "Local business tax" and obtain the Local Business Tax Receipt. -4- Packet Page -745- 11/13/2012 Item 11.G. Collier County Local Business Tax Receipt, they must pay a "Local business tax ". On February 18, 2010, Mr. Carnell told Mr. Penner that County staff was now changing its position and recommendation and recommending that non -local bidder Cardinal be awarded the bid and the contract. On February 18, 2010, M &S timely filed its written Notice of Intent to Protest with the Collier County Purchasing Director. (se Exhibit "I ") This Formal Written Protest by M &S has been timely filed with the Purchasing Director in conformance with the County's Purchasing Policy relating to protest of bid or proposed award. a CARDINAL IS NOT A "LOCAL BUSINESS" "Local Business" is defined in Section XI(1) of the Purchasing Policy. That section and the LVP policy are very clear and unequivocal and state that the Local Business vendor must possess a Collier County "occupational license" at least one year prior to bid submission and a physical business address located within Collier County from which the vendor operates or performs business. In addition, the LVP Policy states that "...a vendor shall not be considered a 'local business' unless it contributes to the economic development and well -being of Collier County in a verifiable and measureable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. ". 4 It is labeled as Section XIX in the complete Purchasing Policy document online, but labeled as is Section XVIII in a "stand alone" online document. There are minor differences in content, not pertinent here. -5- Packet Page -746- 11/13/2012 Item 11.G. Section XI (2)(a), of the Purchasing Policy, at page 12, provides the following mandatory language: If the lowest local bidder submits an offer that fully matches the lowest bid from the lowest non -local bidder tendered previously, then award shall be made to the local bidder. (emphasis added) . A search as recently as February 23, 2010 of the Collier County Tax Collector's website reveals that Cardinal does not currently hold or possess a Collier County occupational license. Further, as evidenced by a search of the Collier County Tax Collector's website using the search term "Cardinal ", Cardinal has not held or possessed a Collier County occupational license between the years 2005 and today (see composite Exhibit "J "). Based upon such evidence, since at least 2005, Cardinal has not paid the local Collier County business tax and has not held or possessed a Collier County occupational license or Collier County Business Tax Receipt. In its bid, Cardinal did not list any physical address in Collier County. The corporate headquarters and main business address of Cardinal is in Sarasota County. The "Place of Business" of Cardinal is in Sarasota Gounty ( see Cardinal bid, first page). The listed major Subcontractor of Cardinal is from Dundee, Florida, in Polk County (see page GC -P-4 of Cardinal bid). A search of the Collier County Tax Collector's website for "Cardinal Contractors" and "Cardinal Contractors, Inc." relating to tangible personal property taxes imposed on fixtures, furniture, equipment and supplies in Collier County from the year 2003 to the current year yielded no results, reflecting that Cardinal has not paid any tangible personal property taxes on fixtures, furniture, equipment and supplies in Collier County from 2003 to the current year. M Packet Page -747- 11/13/2012 Item 11.G. As Cardinal has not paid any Collier County Business Tax since at least 2005; and, as there is no evidence it has generated any real estate taxes in Collier County; and, as Cardinal has not,paid any tangible personal property taxes in Collier County from at least 2003 to the present, Cardinal has not contributed to the economic development and well -being of Collier County in a verifiable and measurable way. Cardinal does not support, and has provided no increase to, the County's tax base. Cardinal is not a "Local Business" under the Collier County Purchasing Policy. M &S IS A "LOCAL BUSINESS" M &S currently hold and possesses multiple (i.e. 8) Collier County occupational licenses and has held no less than seven (7) Collier County occupational licenses or Collier County Business Tax Receipts from 2005 AbL to the present. (see composite Exhibit "K ") In addition to the fact that M &S has sixty (60) employees living in Collier County, in its bid M &S clearly listed its physical address in Collier County, i.e. 6001 Shirley Street. The corporate headquarters and main business address of M &S is in Collier County. The "Place of Business" of M &S is in Collier County ( see M &S bid, first page) Each of the eight (8) M &S Collier County Business Tax Receipts provide a physical address in Collier County, Florida, at 6001 Shirley Street. The property and improvements at 6001 Shirley Street, the corporate headquarters of M &S, consists of an approximately 1.36 acre parcel, with a two story, 10,900 square foot building ( see Exhibit "L"). This property and its improvements have generated over $95,000.00 in real OVA Packet Page -748- 11/13/2012 Item 11.G. estate taxes and assessments in Collier County since 2004 (see Exhibit , Mfl) A search of the Collier County Tax Collector's website for "Mitchell & Stark" relating to tangible personal property taxes imposed on fixtures, furniture, equipment and supplies in Collier County from the year 2003 to the current year reflects that M &S has paid $959,750.93 in tangible personal property taxes imposed on fixtures, furniture, equipment and supplies in Collier County since 2003. (see Exhibit "N ") M &S is a "Local Business " under the Collier County Purchasing Policy. M &S is the lowest local bidder on this project. M &S submitted an offer that fully matched the lowest bid from the lowest non -local bidder, Cardinal. ONCE M &S MATCHED THE OVERALL LOW BID COLLIER COUNTY MUST AWARD THE BID AND CONTRACT TO M &S AND COLLIER IV COUNTY'S DETERMINATION THAT CARDINAL IS A "LOCAL BUSINESS" WAS ARBITRARY AND CAPRICIOUS AND ANABUSE OF DISCRETION It is clear that a local government must adhere to a defined procurement process in making contract awards. The failure of an agency to follow its own bid specifications and procedures is an arbitrary and capricious act. see Coin Laundry Equip. Co. v. Univ. of West R., 1996 WL 1060244 (1996) While a public authority generally has wide discretion in the award of public work contracts the discretion cannot be arbitrary or capricious. City of Miami Beach v. Klinger, 179 So.2d 864. The award of a contract in a procurement is invalid if it is arbitrary or capricious. see Liberty County v. AML wo Baxter's Asphalt & Concrete, Inc. 421 So.2d.505 (Fla. 1982); City of Packet Page -749- 11/13/2012 Item 11.G. Sweetwater v. Salo Construction Corporation, 823 So.2d 798 (Fla.3" DCA 2002). Where discretion is vested in a public agency with respect to letting public contracts on a competitive basis, the discretion must be exercised based upon clearly defined criteria and may not be exercised arbitrarily or - - capriciously. See City of Sweetwater, supra The discretion must be based upon facts reasonably tending to support the conclusions of the agency. See Culpepper v. Moore, Fla. 40 So.2d.366; Willis v. Hathaway, 95 Fla. 608, 117 So.89. The discretion exercised by County staff in this case did not rest upon material facts reasonably tending to support the conclusions reached. Collier County's determination that Cardinal qualifies as a "Local It Business" under the Purchasing Policy is not supported by the evidence, constitutes an abuse of discretion and is arbitrary and capricious. Collier County's recommended award to Cardinal, which is not a "Local Business ", after M &S, an entity that unequivocally qualifies as a "Local Business" under the Purchasing Policy, matched the lowest non - local bidder's bid, violated the Purchasing Policy, constituted an abuse of discretion and was arbitrary and capricious. There are no material facts supporting the determination by Collier County staff that Cardinal qualifies as a "Local Business ", Packet Page -750- NEWOMMEnj Y 11/13/2012 Item 11.G. 5. DEMAND FOR RELIEF. Based upon all of the forgoing, M &S respectfully requests and demands that: A. Cardinal be deemed not to be a "Local Business" as defined in Section XI of the Collier County Purchasing Policy and thus Cardinal be deemed not entitled to the benefits and privileges of the LVP policy. B. The recommendation of the County Staff, as outlined in the Executive Summary, to award Bid 10 -5423 "NCWTP Finished Water Quality and Odor control Compliance ", to Cardinal, be reversed and rescinded. C. Collier County staff recommend to the Board of County Commissioners that M &S be awarded Bid 10 -5423 "NCWTP Finished Water Quality and Odor control Compliance" in the amount of $2,904, 563.00. D. The Board of County Commissioners award Bid 10 -5423 "NCWTP Finished Water Quality and Odor control Compliance" to M &S in the amount of $2,904, 563.00, and enter into a contract with M &S for said project. 6. OTHER INFORMATION DEEMED TO BE MATERIAL TO THE ISSUE As of the date of the filing of this Protest, M &S has not yet been provided all of the public records that it has requested from Collier County relating to Bid 10 -5423. (see Exhibit "0 ") M &S reserves the right to amend and supplement its filing and this Formal Written Protest upon the receipt of additional materials provided by Collier County pursuant to public records requests. 1KIM Packet Page -751- M 11/13/2012 Item 11.G. Respectfully submitted to the Purchasing Director of Collier County on this date of February 25, 2010. MITCHELL & STARK CONSTRUCTION CO., INC. 6001 Shirley Street Naples, Florida 34109 (239) 597 -2165 (239) 566 -7865 fax BY: BRIAN PENNER, C O ) DATED: ')— �a..�' l /D WOODWARD, P1RES & LOMBARDO, P.A. 3200 North Tamiami Trail Suite 200 Naples, Florida 34103 239 - 649 -6555 Phone 239 -649 -7342 Fax ATTOR LL & STARK CONSTRUCTION CO., INC. - 11 - Packet Page -752- AFFIDAVIT OF ANDREW FENSKE STATE OF FLORIDA COUNTY OF LEE 11/13/2012 Item 11.G. BEFORE ME this day personally appeared Andrew Fenske who, after being duly sworn, deposes and says that: 1. My name is Andrew Fenske and I am over the age of twenty -one (21) years and have personal knowledge of the facts contained herein. 2. I am the Chief Plant Operator for the City of Cape Coral's Treatment Plant located at 1200 Kismet Parkway West, Cape Coral, Florida and I have worked in this position since Construction began on the Treatment Plant in 2007. 3. Sometime in 2007 Poole and Kent had both an office trailer and other trailers for storing tools and materials at the job site. 4. Poole and Kent is a subcontractor of MWH, the prime contractor for the City's treatment plant. Poole and Kent is still currently performing warranty work at the City's treatment plant. 5. Sometime in the fall of 2010 the office trailer used by Poole and Kent was removed from the plant premises and was never brought back to the plant. 6. After the office trailer used by Poole and Kent was removed from the plant premises sometime in the fall of 2010, there were only storage trailers present at the City's treatment plant. 7. To the best of my knowledge, The City of Cape Coral does not allow private companies to conduct non -city related business to the general public on City property. FURTHER AFFIANT SAYETH NAUGHT. by ANDlkEW FENSKE SWORN TO (OR AFFIRMED} re me this 31st day of October, 2012, Andrew Fenske. He is personally known to me _i or has produced (type of identification as ident- ification. NOTARY PUBLICSTATE OF FLORIDA SKIN URE OF NOTARY PUBLIC 4 Geraldine A. Ferrara Q� 4 `- Commission #DD821015 j %,,,c Expires: NOV 15, 2012 BM IM PRINT, TYPE OR STAMP COMMISSIONED NAME OF NOTARY PUBLIC MY COMMISSION EXPIRES: Packet Page -753- 11/13/2012 Item 11.G. LOCAL VENDOR PREFERENCE RECIPROCITY AGREEMENT THIS Agreement, made and entered into this 14th day of October, 2008 by and between the Board of County Commissioners, Collier County, Florida, a political subdivision of the State of Florida, hereinafter called Collier County, and the Board of County Commissioners, Lee County, Florida, a political subdivision of the State of Florida, hereinafter called Lee County. WITNESSETH WHEREAS, Lee County Ordinance No. 00 -10 extends specific preference considerations to vendors located in Lee County and Collier County Resolution 2008 -181 extends preference considerations to vendors located within Collier County; WHEREAS, both Collier County and Lee County understand that there are numerous local vendors that materially affect and significantly impact the economies of both counties; WHEREAS, both counties wish to enter into a reciprocal agreement regarding the status of vendors located within their respective counties; and WHEREAS, both counties wish to continue to otherwise maintain the distinct characteristics of their respective local preference practices. NOW, therefore, in consideration of the promises and mutual covenants hereinafter contained, Collier County and Lee County hereby agree to enter into this Agreement. SECTION I. DESCRIPTION OF RECIPROCITY 1.01 Under the terms of this Agreement, Collier County agrees to deem vendors with a physical business address in Lee County to be "local' for preference purposes in Collier County provided they meet all other aspects of the definition of "local" as set forth in Collier County Resolution 2008 -181. Concurrently, Lee County agrees to deem vendors with a physical business address in Collier County to be "local' for preference purposes in Lee County provided they meet all other aspects of the definition of "local' as set forth in Lee County Ordinance No. 00 -10. SECTION H. TERMS 2.01 Except as this Agreement may otherwise be terminated, this Agreement shall remain in full force from the date first above written until such time as either County elects to terminate this Agreement; or elects to terminate its existing local vendor preference ordinance or resolution. 2.02 Either County may terminate this Agreement upon sixty (60) days prior written notice to the other County. 5:00 PHI Page 1 of 11 -25 -08 Packet Page -754- 11/13/2012 Item 11.G. SECTION III. INDEMNIFICATION 3.01 To the extent permitted by Florida law, each county shall each defend, indemnify and save the other harmless from any and all claims, liability, losses and causes of actions arising out of any act, error, omission, or negligence arising from or incident to the parties' performance under this Agreement. Neither party shall be responsible for any incident arising from the sole negligence of the other. This section is not intended to extend the limits of sovereign immunity as provided in § 768.28, Fla. Stat. (2007). This provision shall also pertain to any claims brought against the parties by any employee of the named parties, any sub - contractor, or anyone directly or indirectly employed by any of them. The parties' obligations under this provision shall be limited to the extent provided by Florida law. SECTION IV. NOTICES. 4.01 All notices from Collier County to Lee County shall be deemed duly served if mailed or faxed to Lee County at the following address: Lee County Government Center Purchasing Department 1825 Hendry Street, 3rd Floor Ft. Myers, FL 33901 Attention: Janet Sheehan, Purchasing Director Telephone: 239-533-5450 Facsimile: 239 - 485 -5460 4.02 All Notices from Lee County to Collier County shall be deemed duly served if mailed or faxed to the following address: Collier County Government Center Purchasing Department - Purchasing Building 3301 Tamiami Trail East Naples, Florida 34112 Attention: Steve Camell, Purchasing /GS Director Telephone: 239 - 252 -8371 Facsimile: 239 - 252 -6584 Either county may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. SECTION V. MISCELLANEOUS 5.01 This Agreement shall be governed by the laws of the State of Florida. In the event any litigation is instituted by way of construction or enforcement of this Agreement the party Page 2 of 3 Packet Page -755- 11/13/2012 Item 11.G. prevailing in said litigation shall be entitled to collect and recover from the opposite party all court costs and other expenses including reasonable attorneys' fees. 5.02 It is understood that this Agreement shall be executed by both parties prior to either county commencing with the reciprocity described herein. 5.03 This Agreement contains the entire understanding between the parties and any modifications to this Agreement shall be mutually agreed upon in writing by both Counties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. AS TO COLLIER COUNTY: t�'DVI T OCK, CLERK bg %4 st_.ts to Chairs" it Ap0r8tfe' `� o Arm and legal sufficiency Colleen M. Greene Assistant County Attorney AS TO LWQUNTY: " n : 3' - - ATTES GREEN, CLERK OF COURTS { + Deputy Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Tom Henning, CHAIRMAN BOARD OF COUNTY COMMISSIONERS LEE COUNTY, FLORIDA Page 3 of 3 Packet Page -756- 11/13/2012 Item 11.G. 16E7 " LOCAL VENDOR PREFERENCE RECIPROCITY AGREEMENT 1� THIS Agreement, made and entered into this rV day of :rtq �, 2009, by and between the Board of County Commissioners, Collier County, Florida, a political subdivision of the State of Florida, hereinafter called Collier County, and the City of Bonita Springs, a Florida municipal corporation, hereinafter called Bonita Springs. WITNESSETH WHEREAS, the Board of County Commissioners for Lee County, Florida ( "Lee County "), a political subdivision of the State of Florida, enacted its Ordinance No. 00 -10, which extended specific preference considerations to vendors located in Lee County, Florida, and Collier County through its Resolution No. 2008 -181 extended preference considerations to vendors located within Collier County; and WHEREAS, Collier County and Lee County previously entered into a local vendor preference reciprocity agreement, which was approved by their Board of County Commissioners on October 14, 2008, and November 25, 2008, respectively; and WHEREAS, both Collier County and Bonita Springs understand that there are numerous local vendors that materially affect and significantly impact the economies of their citizens; and WHEREAS, both Collier County and Bonita Springs wish to enter into a reciprocal agreement regarding the status of vendors located within their respective county and municipal boundaries; and WHEREAS, Bonita Springs wishes to follow and adhere to the distinct local vendor preference policy articulated in Lee County Ordinance No. 00 -10 as does Collier County with respect to the local vendor preference policy established in its Resolution No. 2008 -181; and NOW, therefore, in consideration of the promises and mutual covenants hereinafter contained, Collier County and Bonita Springs hereby agree to enter into this Agreement. SECTION I. DESCRIPTION OF RECIPROCITY 1.01 Under the terms of this Agreement, Collier County agrees to deem vendors with a physical business address in Bonita Springs to be "local" for preference purposes in Collier County provided they meet all other aspects of the definition of "local" as set forth in Collier County Resolution 2008 -181. Concurrently, Bonita Springs agrees to deem vendors with a physical business address in Collier County to be "local' for preference purposes in Bonita Springs provided they meet all other aspects of the definition of "local' as set forth in under Lee County Ordinance No. 00 -10. SECTION II. TERMS 2.01 Except as this Agreement may otherwise be terminated, this Agreement shall remain in fill force from the date first above written until such time as either Collier County or Bonita Page 1 of 3 BSC- 09 -06 -73 Packet Page - 757 - 11/13/2012 Item 11.G. 10 t if Springs elects to terminate this Agreement; or such time that Collier County elects to terminate its existing local vendor preference resolution. 2.02 Either Party may terminate this Agreement upon sixty (60) days prior written notice to the other. SECTION III. INDEMNIFICATION 3.01 To the extent permitted by Florida law, each Party shall defend, indemnify and save the other harmless from any and all claims, liability, losses and causes of actions arising out of any act, error, omission, or negligence arising from or incident to the Parties' performance under this Agreement. Neither Party shall be responsible for any incident arising from the sole negligence of the other. This section is not intended to extend the limits of sovereign immunity as provided in § 768.28, Fla. Stat. (2007). This provision shall also pertain to any claims brought against the Parties by any employee of the named Parties, any sub - contractor, or anyone directly or indirectly employed by any of them. The Parties' obligations under this provision shall be limited to the extent provided by Florida law. SECTION IV. NOTICES. 4.01 All notices from Collier County to Bonita Springs shall be deemed duly served if mailed or faxed to Bonita Springs at the following address: Bonita Springs City Hall 9101 Bonita Beach Road Bonita Springs, FL 34135 Attention: City Manager Main Phone Number: (239)949 -6262 Main Fax Number- (239)949 -6239 4.02 All Notices from Bonita Springs to Collier County shall be deemed duly served if mailed or faxed to the following address: Collier County Government Center Purchasing Department - Purchasing Building 3301 Tamiami Trail East Naples, Florida 34112 Attention: Steve Carrell, Purchasing/GS Director Telephone: 239- 252 -8371 Facsimile: 239- 252 -6584 Either government may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. Page 2 of 3 Packet Page -758- _.... __ . SECTION V. MISCELLANEOUS 11/13/2012 Item 11.G. lot f 5.01 This Agreement shall be governed by the laws of the State of Florida. In the event any litigation is instituted by way of construction or enforcement of this Agreement the Party prevailing in said litigation shall be entitled to collect and recover from the opposite Party all court costs and other expenses including reasonable attorney's fees. 5.02 It is understood that this Agreement shall be executed by both Parties prior to either local government commencing with the reciprocity described herein. 5.03 This Agreement contains the entire understanding between the Parties and any modifications to this Agreement shall be mutually agreed upon in writing by both local governments. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. "AS TO — rgLLIER COUNTY: ;ATTEST: ' DWIGH BROCK, CLERK X` , Z- Q--. At Lt s i t t W CAa ?'r�Irl � s i ga stwe ga i " Apr as to fo d Lgalsufficiency Jef y Klatzkow, County Attorney AS TO BONIT.A SPRINGS: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Donna Fiala, CHAIRMAN A SPRINGS, FLORIDA ATTEST: _ } � Y Clerk Ben Nelson Jr., Mayor Approved as to form and legal sufficiency City Attorwy Page 3 of 3 -. -- Packet Page -759- -- - 11/13/2012 Item 11.G. C;6*1err Co>y Adntiriistrative Services Division Purchasing November 5, 2012 Mr. Stuart H. Sakwa Arnstein & Lehr LLP On Behalf of Poole and Ken Company of Florida 515 North Flagler Drive, Suite 600 West Palm Beach, FL 33401 Telephone: 561 - 833 -9800 FAX: 561- 655 -5551 Email: imatlas Marnstein.com shsakwa aaarnstein.com RE: Final Resolution for 12 -5931 Master Pump Station 312 Rehabilitation and 12 -5952 Aerated Sludge Holding Tank (ASHT) / Flow Equalization Tan (FET) Mr. Sakwa: I am in receipt of your correspondence dated November 3, 2012, and have referred it to the County Attorney's Office to respond to you. I would like to take this opportunity to further address Poole & Kent's protest appeal to provide you with additional information that you might find relevant on the issue of going forward. On November 1, 2012, County staff received a signed notarized affidavit from City of Cape Coral's Chief Plant Operator since 2007, Andrew Fenske, whose office is located at the City's Treatment Plant located at 1200 Kismet Parkway West —the same address provided by Poole & Kent on its Affidavit for Claiming Status as a Local Business submitted to Collier County with its bid. In part, Mr. Fenske swears that that: 1. Poole and Kent had an office trailer, and other trailers sometime in 2007 for storing tools and materials for a job at the 1200 Kismet Parkway West Cape Coral job site; 2. Sometime in the fall of 2010, the office trailer was removed from the plant and never brought back, leaving only storage trailers present at the City's treatment plant; and 3. To the best of his knowledge, the City of Cape Coral does not allow private companies to conduct non -city related business to the general public on City property. A copy of Mr. Fenske's Affidavit is attached your consideration. Although the facts clearly support the conclusion that Poole & Kent is not a local vendor under the County's Purchasing Policy, a thorough analysis confirms that Poole & Kent is not even eligible for consideration under that policy. As you know, the address Poole & Kent provided in its Affidavit for Claiming Status as a Local Business is located on City of Cape Coral property. After the County adopted its Local Vendor Policy, it entered into a "Local Vendor Preference Reciprocity Agreement" with Lee County on October 14, 2008. (See copy attached). Through that agreement, Lee and Collier Counties agreed to deem vendors with physical business addresses in each other's jurisdiction as Purchasing Departrwt- 3327 Tamiami Trail East • Naples, Florida 341124901 - wwwtolliergov.neNpurchasing Packet Page -760- 11/13/2012 Item 11.G. "local" for preference purposes. Collier and Lee only have jurisdiction to bind the unincorporated portions of their respective counties; and not the municipalities located within their respective incorporated portions. Notably, Collier County also entered into a separate "Local Vendor Preference Reciprocity Agreement" with the City of Bonita Springs on July 28, 2009. This is consistent with the Collier County Purchasing Policy Section XI(5) that allows Collier to enter into reciprocity agreements with "Lee County, or any other Florida county or municipality ... deemed appropriate by the Collier County Board of Commissioners... [J" Collier County has not entered into a Reciprocity Agreement with the City of Cape Coral. Therefore, Collier County is not bound to grant any local vendor preference to a business (regardless whether it has a physical business address) located within the City of Cape Coral; especially one involving a storage trailer actually located on City property. Finally, it bears noting that although the City of Cape Coral's Purchasing Policy does incorporate a form of local vendor preference, it is not equally applied to Collier County businesses. The Code of Ordinances of the City of Cape Coral, Florida, Section 2- 144(a)(10) provides a preference for contractors submitting competitive sealed bids but it does not specifically identify Collier County businesses as an eligible "local contractor /vendor" under its policy. The Cape Coral Ordinance does incorporate a slight preference for Collier County professional firms (engineers, consultants, etc.) submitting qualification based proposals but even that benefit is limited by adding the following points or percentages to the scores: Cape Coral professionals receive ten points or 10% Lee County professionals receive seven points or 7% Collier, Charlotte, Glades and Hendry County professionals receive three points or 3% Code of Ordinances of City of Cape Coral § 2- 144(h)(4)(c). By comparison, the preferential treatment Collier County provides Lee County and the City of Bonita Springs under the respective Reciprocity Agreements provides a match opportunity for their eligible competitive bid contractors and also provides 10 points or 10% to the total score of professionals submitting qualification based proposals. Collier County has no such reciprocal arrangement with the City of Cape Coral; therefore, Poole and Kent is not eligible to be treated as a local vendor under Collier County's policy. If you wish to reconsider proceeding with your client's protest appeal, it would be appreciated if you could inform me of your decision prior to 4:00 p.m. on Tuesday, November 6, 2012; which is when the agenda for the upcoming Board meeting will go to print. Respectfully, Joann�arkiewicz'lnterim Purchasing / Gyneral Services Director Email: ioannemarkieN ici �colliergov .net-' Telephone: (239) 252 -8975 FAX: (239) 252 -6480 Attachments C: Jeffrey Klatzkow Packet Page -761- AFFIDAVIT OF ANDREW FENSKE STATE OF FLORIDA COUNTY OF LEE 11/13/2012 Item 11.G. BEFORE ME this day personally appeared Andrew Fenske who, after being duly sworn, deposes and says that: 1. My name is Andrew Fenske and I am over the age of twenty-one (21) years and have personal knowledge of the facts contained herein. 2. 1 am the Chief Plant Operator for the City of Cape Coral's Treatment Plant located at 1200 Kismet Parkway West, Cape Coral, Florida and I have worked in this position since Construction began on the Treatment Plant in 2007. 3. Sometime in 2007 Poole and Kent had both an office trailer and other trailers for storing tools and materials at the job site. Poole and Kent is a subcontractor of MWH, the prime contractor for the City's treatment plant. Poole and Kent is still currently performing warranty work at the City's treatment plant. 5. Sometime in the fall of 2010 the office trailer used by Poole and Kent was removed from the plant premises and was never brought back to the plant. After the office trailer used by Poole and Kent was removed from the plant premises sometime in the fall of 2010, there were only storage trailers present at the City's treatment plant. To the best of my knowledge, The City of Cape Coral does not allow private companies to conduct non -city related business to the general public on City property. FURTHER AFFIANT SAYETH NAUGHT. ANDAEW FENSKE SWORN TO (OR AFFIRMED }. re me this 31st day of October, 2012, by Andrew Fenske. C He is ersonally known to me or has produced (type of identification) as i enti ication. NOTARY PUBUCSTATE OF FLORIDA - �rN URE OF NOTARY PUBLIC Geraldine A. Ferrara Q = ECommission #DD621015 �s�r r Expires: NOV. 15, 2012 sonoWnMVercexncaoaon1aca,nvc PRINT, TYPE OR STAMP COMMISSIONED NAME OF NOTARY PUBLIC MY COMMISSION EXPIRES: Packet Page -762- 11/13/2012 Item 11.G. LOCAL VENDOR PREFERENCE RECIPROCITY AGREEMENT THIS Agreement, made and entered into this 14th day of October, 2008 by and between the Board of County Commissioners, Collier County, Florida, a political subdivision of the State of Florida, hereinafter called Collier County, and the Board of County Commissioners, Lee County, Florida, a political subdivision of the State of Florida, hereinafter called Lee County. WITNESSETH WHEREAS, Lee County Ordinance No. 00 -10 extends specific preference considerations to vendors located in Lee County and Collier County Resolution 2008 -181 extends preference considerations to vendors located within Collier County, WHEREAS, both Collier County and Lee County understand that there are numerous local vendors that materially affect and significantly impact the economies of both counties; WHEREAS, both counties wish to enter into a reciprocal agreement regarding the status of vendors located within their respective counties; and WHEREAS, both counties wish to continue to otherwise maintain the distinct characteristics of their respective local preference practices. NOW, therefore, in consideration of the promises and mutual covenants hereinafter contained, Collier County and Lee County hereby agree to enter into this Agreement. SECTION I. DESCRIPTION OF RECIPROCITY 1.01 Under the terms of this Agreement, Collier County agrees to deem vendors with a physical business address in Lee County to be "local' for preference purposes in Collier County provided they meet all other aspects of the definition of "local' as set forth in Collier County Resolution 2008 -181. Concurrently, Lee County agrees to deem vendors with a physical business address in Collier County to be "local' for preference purposes in Lee County provided they meet all other aspects of the definition of "local' as set forth in Lee County Ordinance No. 00 -10. SECTION H. TERMS 2.01 Except as this Agreement may otherwise be terminated, this Agreement shall remain in full force from the date first above written until such time as either County elects to terminate this Agreement; or elects to terminate its existing local vendor preference ordinance or resolution. 2.02 Either County may terminate this Agreement upon sixty (60) days prior written notice to the other County. 5:00 PHI Page 1 of 11 -25 -08 Packet Page -763- 11/13/2012 Item 11.G. SECTION M. INDEMNIFICATION 3.01 To the extent permitted by Florida law, each county shall each defend, indemnify and save the other harmless from any and all claims, liability, losses and causes of actions arising out of any act, error, omission, or negligence arising from or incident to the parties' performance under this Agreement. Neither party shall be responsible for any incident arising from the sole negligence of the other. This section is not intended to extend the limits of sovereign immunity as provided in § 768.28, Fla. Stat. (2007). This provision shall also pertain to any claims brought against the parties by any employee of the named parties, any sub - contractor, or anyone directly or indirectly employed by any of them. The parties' obligations under this provision shall be limited to the extent provided by Florida law. SECTION IV, NOTICES. 4.01 All notices from Collier County to Lee County shall be deemed duly served if mailed or faxed to Lee County at the following address: Lee County Government Center Purchasing Department 1825 Hendry Street, 3rd Floor Ft. Myers, FL 33901 Attention: Janet Sheehan, Purchasing Director Telephone: 239-533-5450 Facsimile; 239 - 485 -5460 4.02 All Notices from Lee County to Collier County shall be deemed duly served if mailed or faxed to the following address: Collier County Government Center Purchasing Department - Purchasing Building 3301 Tamiami Trail East Naples, Florida 34112 Attention: Steve Carnell, Purchasing /GS Director Telephone: 239 - 252 -8371 Facsimile: 239-252-6584 Either county may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. SECTION V. MISCELLANEOUS 5.01 This Agreement shall be governed by the laws of the State of Florida. In the event any litigation is instituted by way of construction or enforcement of this Agreement the party Page 2 of 3 Packet Page -764- 11/13/2012 Item 11.G. prevailing in said litigation shall be entitled to collect and recover from the opposite party all court costs and other expenses including reasonable attorneys' fees. 5.02 It is understood that this Agreement shall be executed by both parties prior to either county commencing with the reciprocity described herein. 5.03 This Agreement contains the entire understanding between the parties and any modifications to this Agreement shall be mutually agreed upon in writing by both Counties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. AS TO COLLIER COUNTY: BOCK, CLERK to Cho try Ap'�r8�re� o fornoi end legal sufficiency Colleen M. Greene Assistant County Attorney AS TO I:IQUNTY: ATTEST: - GREEN, CLERK OF COURTS 1 Deputy Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Tom Henning, CHARMMAN BOARD OF COUNTY COMMISSIONERS LEE COUNTY, FLORIDA Page 3 of 3 Packet Page -765- 11/13/2012 Item 11.G. 16E7 14 LOCAL VENDOR PREFERENCE RECIPROCITY AGREEMENT THIS Agreement, made and entered into this c day of 1 , 2009, by and between the Board of County Commissioners, Collier County, Florida, a p litical subdivision of the State of Florida, hereinafter called Collier County, and the City of Bonita Springs, a Florida municipal corporation, hereinafter called Bonita Springs, WITNESSETH WHEREAS, the Board of County Commissioners for Lee County, Florida ( "Lee County "), a political subdivision of the State of Florida, enacted its Ordinance No. 00 -10, which extended specific preference considerations to vendors located in Lee County, Florida, and Collier County through its Resolution No. 2008 -181 extended preference considerations to vendors located within Collier County; and WHEREAS, Collier County and Lee County previously entered into a local vendor preference reciprocity agreement, which was approved by their Board of County Commissioners on October 14, 2008, and November 25, 2008, respectively; and WHEREAS, both Collier County and Bonita Springs understand that there are numerous local vendors that materially affect and significantly impact the economies of their citizens; and WHEREAS, both Collier County and Bonita Springs wish to enter into a reciprocal agreement regarding the status of vendors located within their respective county and municipal boundaries; and WHEREAS, Bonita Springs wishes to follow and adhere to the distinct local vendor preference policy articulated in Lee County Ordinance No. 00 -10 as does Collier County with respect to the local vendor preference policy established in its Resolution No. 2008 -181; and NOW, therefore, in consideration of the promises and mutual covenants hereinafter contained, Collier County and Bonita Springs hereby agree to enter into this Agreement. SECTION 1. DESCRIPTION OF RECIPROCITY 1.01 Under the terms of this Agreement, Collier County agrees to deem vendors with a physical business address in Bonita Springs to be "local' for preference purposes in Collier County provided they meet all other aspects of the definition of "local" as set forth in Collier County Resolution 2008 -181. Concurrently, Bonita Springs agrees to deem vendors with a physical business address in Collier County to be "Iocal" for preference purposes in Bonita Springs provided they meet all other aspects of the definition of "local' as set forth in under Lee County Ordinance No. 00 -10. SECTION II. TERMS 2.01 Except as this Agreement may otherwise be terminated, this Agreement shall remain in full force from the date first above written until such time as either Collier County or Bonita Page I of 3 BSC- 09 -06 -73 Packet Page -766- 11/13/2012 Item 11.G. 16 €7 Springs elects to terminate this Agreement; or such time that Collier County elects to terminate its existing local vendor preference resolution. 2.02 Either Party may terminate this Agreement upon sixty (60) days prior written notice to the other. SECTION III. INDEMNIFICATION 3.01 To the extent permitted by Florida law, each Party shall defend, indemnify and save the other harmless from any and all claims, liability, losses and causes of actions arising out of any act, error, omission, or negligence arising from or incident to the Parties' performance under this Agreement. Neither Party shall be responsible for any incident arising from the sole negligence of the other. This section is not intended to extend the limits of sovereign immunity as provided in § 768.28, Fla. Stat. (2007). This provision shall also pertain to any claims brought against the Parties by any employee of the named Parties, any sub - contractor, or anyone directly or indirectly employed by any of them. The Parties' obligations under this provision shall be limited to the extent provided by Florida law. SECTION IV. NOTICES. 4.01 All notices from Collier County to Bonita Springs shall be deemed duly served if mailed or faxed to Bonita Springs at the following address: Bonita Springs City Hall 9101 Bonita Beach Road Bonita Springs, FL 34135 Attention: City Manager Main Phone Number: (239)949 -6262 Main Fax Number- (239)949 -6239 4.02 All Notices from Bonita Springs to Collier County shall be deemed duly served if mailed or faxed to the following address: Collier County Government Center Purchasing Department - Purchasing Building 3301 Tamiami Trail East Naples, Florida 34112 Attention: Steve Carnell, Purchasing/GS Director Telephone: 239 - 252 -8371 Facsimile: 239- 252 -6584 Either government may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing. Page 2 of 3 Packet Page -767- 11/13/2012 Item 11.G. 16E7 SECTION V. MISCELLANEOUS 5.01 This Agreement shall be governed by the laws of the State of Florida. In the event any litigation is instituted by way of construction or enforcement of this Agreement the Party prevailing in said litigation shall be entitled to collect and recover from the opposite Party all court costs and other expenses including reasonable attorney's fees. 5.02 It is understood that this Agreement shall be executed by both Parties prior to either local government commencing with the reciprocity described herein. 5.03 This Agreement contains the entire understanding between the Parties and any modifications to this Agreement shall be mutually agreed upon in writing by both local governments. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. AS T,O, LLIER COUNTY: ;ATTEST: .' 'DWIGH BkOCK, CLERK 4 L� Attest is w cm"-s" t i gnit�s OA i R Appr o fo as t d egal sufficiency Jef y Klatzkow, County Attorney AS TO BONITA SPRINGS: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA 0-,� --�. Donna Fiala, CHAIRMAN A SPRINGS, FLORIDA ATTEST: ou� Clerk Ben Nelson Jr., Mayor Approved as to form and legal sufficiency City Attorky Page 3 of 3 Packet Page -768-