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Agenda 01/13/2009 Item #16C 6Agenda Item No. 16C6 January 13, 2009 Page 1 of 9 EXECUTIVE SUMMARY Recommendation to Award Bid Number 08 -5123 for purchase of hauling and disposal of lime sludge services to Pro -Lime Corporation in the estimated amount of $150,000 annually. OBJECTIVE: The object is to obtain approval from the Board of County Commissioners, Ex- Officio the governing Board of the Collier County Water -Sewer District, to award Bid Number 08 -5123 for the purchase of hauling and disposal of lime sludge services to Pro -Lime Corporation. CONSIDERATIONS: The Water Department utilizes a lime softening water treatment process, which requires the use of a lime sludge press. The lime sludge press dewaters the sludge, which is a byproduct of the lime softening treatment process. The sludge then needs to be disposed offsite. The bid was posted on November 9, 2008, by the Purchasing Department with 39 vendors requesting packages. The Purchasing Department received three bids. The lowest vendor, J.D. Stevens, Incorporated, did not claim local vendor preference. The second lowest vendor, Pro - Lime Corporation, was within 10% of the lowest price, and did submit a local vendor preference affidavit. In accordance with the Purchasing Policy, the local vendor, Pro -Lime Corporation, was offered the ability to match the lowest bid. Pro -Lime Corporation did match the lowest price and is therefore recommended to be the awarded vendor, with approval by the Purchasing Department. Prior to the award of this contract, a formal protest was received from J.D. Stevens, Incorporated. A copy of the protest and the Purchasing Director's protest decision are attached to this Summary. FISCAL IMPACT: Funds in the amount of $150,000 are available within the County Water /Sewer Fund (408). The source of funding is user fees. The exact amount of the contract will be dependent on the amount of water produced, during the life of the contract. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is not quasi- judicial and requires no ex parte disclosure, requires only a majority vote for approval, and is otherwise legally sufficient for Board action. —SRT GROWTH MANAGEMENT IMPACT: There is no impact on the County's Growth Management Plan. RECOMMENDATION: The Board of County Commissioners award Bid #08 -5123 for the purchase of hauling and disposal of lime sludge services to Pro -Lime Corporation. Prepared By: Pamela Libby, Water Operations Manager Page 1 of 1 Agenda Item No. 16C6 January 13, 2009 Page 2 of 9 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16C6 Item Summary: Recommendation to Award Bid Number 08 -5123 for purchase of hauling and disposal of lime sludge services to Pro -Lime Corporation in the estimated amount of $150,000 annually. Meeting Date: 1113/2009 9:00:00 AM Prepared By Pamela Libby Water Operations Manager Date Public Utilities Water 12/31/2008 7:54:20 AM Approved By Pamela Libby Water Operations Manager Date Public Utilities Water 12/3112008 7:57 AM Approved By Jeff Klatzkow, Assistant County Attorney Date County Attorney County Attorney Office 12/31/2008 8:32 AM Approved By Paul Mattausch Water Director Date Public Utilities Water 12131/20088:54 AM Approved By Thomas Wides Operations Director Date Public Utilities Public Utilities Operations 12/3112006 9:11 AM Approved By Kelsey Ward Contract Administration Manager Date Administrative Services Purchasing 12131/2008 9:13 AM Approved By James W. DeLony Public Utilities Administrator Date Public Utilities Public Utilities Administration 12/3112008 9:48 AM Approved By Randy Greenwald Management /Budget Analyst Date County Manager's Office Office of Management 8 Budget 1213112008 2:15 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 115/2009 10:03 AM fi le://C:AAgendaTest \Export\ 121- .Ianuary %2013, %202009\ 16. %2000NSENT %20AGEN DA \... 1/7/2009 moo O� N CL N rO1i `.' � Ill O d 0 0 Z m N m U m a -d OI N d E J O N N a m S M a ¢1 C N N d � � o a d c > � c D O U a C � d < � O C V V lJ li 0 o d O o MFw , d C — C d , N O N � a E 0 om m m o Ic--No E F U d 0 d O m �. c C O O C M U � C U � d �c o ul m G n m u A fA O Ci d N d 0 U N C O U d L r \ N 'O O m m r A 3 m U c O m d o U m v v c c Y i w @ j 0 m 7 m d E d y O O O f 1 at C f 1 d V V lJ li "A COLLIER COUNTY GOVERNMENT PURCHASING DEPARTMENT December 30, 2008 Mr. Shon Stevens, President J.D. Stevens, Inc. 5425 Golden Gate Parkway, Suite 1 Naples, Fl 34116 Agenda Item No. 16C6 January 13, 2009 Page 4 of 9 3301 EAST TAMLAMI TRAIL PURCHASING BUILDING NAPLES, FLORIDA 34112 (239) 774 -8407 FAX (239) 732 -0844 Re: Protest Decision, ITB 08.5123, Hauling and Disposal of Lime Sludge Dear Mr. Stevens, This office has reviewed your formal protest of December 12, 2008 of the staff recommendation to award the referenced contract to Pro-Lime Corporation. The following is a summary of the issues raised in your protest and my findings regarding each, the latter of which follow in italics: 1. J.D. Stevens was the apparent low bidder for the contract and is a local firm under Collier County's local vendor preference policy. Staff would concur with the first statement. With regard to their status as a local vendor, J.D. Stevens would not be considered local in this instance as they did not include the required affdaPit with their bid offer. Bids were opened publicly on October 29, 2008 and tabulated as follows J.D. Stevens Inc $14.00 per cubic yard Prolime Corporation $14.84 per cubic yard Southern Sanitation Inc. $15.90 per cubic yard J.D. Stevens tendered the apparent lowest bid. However, J.D. Stevens failed to submit the local vendor preference affidavit form, which is required for any vendor intending to claim local preference. On October 31, Ms. Julie Stevens of J.D. Stevens inquired of Countypurchasing agent Jack Curran by e-mail regarding the status of the bid evaluation process. Ms. Stevens offered to provide any additional information needed by the County. Mr. Curran advised Ms. Stevens that J.D. Stevens had not submitted the required local vendor preference affidavit and that it is a policy requirement of the Board of County Commissioners that the affidavit form be submitted with the bid offer. Per the Board's policy as set forth in the bidding documents, Mr. Curran extended a right to match offer to Proh'me Corporation who had submitted the required affidavit with their bid offer. Mr. Shon Stevens December 30, 2008 Page 2 of 4 Agenda Item No. 16C6 January 13, 2009 Page 5 of 9 2, The County's bid form and the County's online bid application did not match as the latter did not provide a separate place for the local vendor preference affidavit to be submitted. J.D. Stevens submitted its bid on line with all requested information. J.D. Stevens was not given the opportunity to submit the local vendor preference affidavit electronically and therefore did not submit the form with its bid offer. The Invitation to Bid document (ITB) addressed the need to submit the affidavit with the bid offer in two separate and distinct places. Section 5 of the ITB is an extensive summary of the local vendor preference policy and includes the following statement "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. " (pp. 10-11). The paragraph goes on to explicitly state that `Tailure on the part of Proposer to submit this Affida vit with their proposal response will preclude said Proposer from being considered for preference in this solicitation ". Also, the actual affidavit is found on pages 25 and 26 of the ITB and includes identical language in the third paragraph. Bidders who tender their offers on line are not excused from submitting the affidavit with their bid offer nor are they given the opportunity to submit the form after the bid opening deadline. The on line version of the ITB included all of the aforementioned language. In addition to the price offer, it included the following specific file requests. • A copy of the lease for use of the disposal site • Identification of the disposal site • A copy of all required permits The local vendor preference affida vit was not specifically listed as a file request in this particular soli citation. Since the implementation of the L VPpolicy last June, the Purchasing Department has issued 31 Invitation to Bid solicitations subject to the new policy. In 22 instances, the electronic version of the ITB included a separate file request for the LVP affidavit. In nine instances, no separate file request was provided. In each of those nine instances, bidders simply uploaded the form with the rest of their submission without incident. The County can waive J.D. Stevens' failure to submit their LVP affidavit timely and accept the form after the bid opening. Section 8 of the General Bidding Requirements (page 8 of the ITB) reads as follows "the County reserves the right to reject any and all bids, to waive defects in the form of bid, also to select the bid that best meets the requirements of the County "In this particular instance, failure to submit the affidavit would arguably not be considered a minor defect for the following reasons Mr. Shon Stevens December 30, 2008 Page 3 of 4 Agenda Item No. 16C6 January 13, 2009 Page 6 of 9 o The ai%davit is expressly required bypolicy to be included with the bid offer, o The policy does not provide an exception for the omission of this form nor does it afford the Purchasing Department the discretion to accept the form after the bid opening. o Receipt of the document with the bid offer is critical to the proper and orderly progression of the local vendor preference process. 4. The vendor who received the local preference "right to match" offer, Prolime Corporation, is headquartered in Michigan. J.D. Stevens is located in Collier County and is "more local' than Prolime Corporation. Under Section XI of the Collier County, purchasing poh'cy, a vendor qualiffes for local vendor preference if they meet each of the following requirements= 1. If they possess a physical business address within Collier (or Lee) County that is not a post office box. 2. If they attest to holding a current Colh'er County occupa tional license and have done so for at least one year prior to the bid submission date. 3. Iftheyattest to having a "measurable" and "verifiable "impact upon the Collier County economy. The alffda vit submitted by Prolime includes a proper local address, a current occupational license and states that the company has four employees living in Collier County. Based on this information, Prahme satisfies the definition of "local vendor" under the policy and is eligible for local preference. There is no language in the policy that calls for vendors to be compared against each other to determine who is `more local' ('e.; which vendor has a greater impact on the local economy). In the bid protest, J.D. Stevens has assumed no responsibility for their failure to submit the affidavit. Further, J.D. Stevens did not question the absence of the form among the listed file requests either electronically through the on line bidding system, by telephone or by separate e-mail prior to the bid opening. Under these circumstances, to accept the form after the deadline, would require the County to rescind the right to match offer that was extended to Prolime and award the contract to J.D. Stevens. This in turn would create a precedent where anytime the Purchasing Department fails to specify a distinct file request for a given form (even though it was clearly called for in the bidding documents and even though it could have been easily uploaded with the other required information), a vendor would arguably be entitled to submit that form after the fact irrespective of what the official ITB document said or what the on line technology permitted. Given that the Purchasing Department has no discretion to accept the form late, it would create confusion and require that the evaluation process be delayed. Staff would have to go to the Board of County Commissioners twice--the first time for direction as to whether to accept the form late and the second time to award the contract if the Board agreed to Mr. Shon Stevens December 30, 2008 Page 4 of 4 Agenda Item No. 16C6 January 13, 2009 Page 7 of 9 accept the form late in the first step. All of this would is cumbersome and would seem to be contrary to the letter and spirit of the County's local vendor preference policy, which requires the vendor seeking preference to take initiative to claim it timely and properly. Awarding local preference to a vendor is not something that can be assumed or inferred; the vendor must affirmatively apply for this designation. In this instance, the Purchasing Department followed the Board's local vendor preference policy as instructed under the policy and offered the lowest bidder properly claiming local preference the opportunity to match the offer of a lower priced bidder who did not submit the required form. Rescinding that offer at this stage in the process due to an omission by another bidder would not seem fair or appropriate. Therefore, it is the decision of this office to reject the protest and to authorize staff to proceed with submission of the original bid award recommendation to the Board of County Commissioners. 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 business days from the date of receipt of this decision or not later than close of business on Monday. January 5, 2009. Sincerely, Steve arnell Purchasing and General Services Director Formal Protest of Bid Award December 12, 2008 Attn: Steve Camell / Purchasing Director Collier County Purchasing Dept. 3301 Tamiami Trail East, Building "G" Naples, Florida 34112 RE: Formal Protest of Bid Award Bid # 08 -5123 / Hauling & Disposal of Lime Sludge Protesting Party: J.D. Stevens, Inc. 5425 Golden Gate Parkway Suite 1 Naples, FL 34116 J.D. Stevens, Inc. ( "J.D. Stevens ") is protesting the Collier County Purchasing Department's recommendation to award the above project to Prolime Corporation, ( "Prolime ") despite the fact that Prolime, was not the low bidder. In fact, J.D. Stevens was the low bidder. It appears that Prolime. is being awarded this project despite my company's low bid due to the fact that Protime is being given "local contractor preference." J.D. Stevens however is also a local contractor (raving operated in Collier County for many years. As such, the result is that one `local contractor" has been given priority over another "local contractor" on this project. (I would argue that my company is "more local" than Prolime but I wil I leave that to your observation when examining the record of both companies.) J.D. Stevens filed its online bid with all the requested information. We submitted our bid application electronically in keeping with your "keep Collier green" program. Unfortunately, the County's online application program does not provide the applicant an opportunity to submit a "local contractor preference form." Had I submitted my application manually, I would have had the opportunity to submit this form as my company and I have been local for many years. I assume that would have resulted in the County accepting the lowest, local bid, that is: J.D. Stevens. Agenda Item No. 16C6 January 13, 2009 Page 8 of 9 J.D. Stevens, Inc. Site Development 5425 Golden Gate Parkway • Suite 1 • Naples, Florida 34116 Office: 239- 793 -7473 • Fax: 239- 430 -7973 Email: jdstevensincl @earthlink.net Formal Protest of Bid Award December 12, 2008 Attn: Steve Camell / Purchasing Director Collier County Purchasing Dept. 3301 Tamiami Trail East, Building "G" Naples, Florida 34112 RE: Formal Protest of Bid Award Bid # 08 -5123 / Hauling & Disposal of Lime Sludge Protesting Party: J.D. Stevens, Inc. 5425 Golden Gate Parkway Suite 1 Naples, FL 34116 J.D. Stevens, Inc. ( "J.D. Stevens ") is protesting the Collier County Purchasing Department's recommendation to award the above project to Prolime Corporation, ( "Prolime ") despite the fact that Prolime, was not the low bidder. In fact, J.D. Stevens was the low bidder. It appears that Prolime. is being awarded this project despite my company's low bid due to the fact that Protime is being given "local contractor preference." J.D. Stevens however is also a local contractor (raving operated in Collier County for many years. As such, the result is that one `local contractor" has been given priority over another "local contractor" on this project. (I would argue that my company is "more local" than Prolime but I wil I leave that to your observation when examining the record of both companies.) J.D. Stevens filed its online bid with all the requested information. We submitted our bid application electronically in keeping with your "keep Collier green" program. Unfortunately, the County's online application program does not provide the applicant an opportunity to submit a "local contractor preference form." Had I submitted my application manually, I would have had the opportunity to submit this form as my company and I have been local for many years. I assume that would have resulted in the County accepting the lowest, local bid, that is: J.D. Stevens. Agenda Item No. 16C6 January 13, 2009 Page 9 of 9 The County's bid packet says the sole intent of your department is to issue bids that are clear, concise, and openly competitive. Due to the difference between the online and manual applications, this did not happen in this case. The County's bid package also says (on page 3) that bids will be received electronically or manually, but not both. It does not however inform the applicant that if they submit electronically, they will not have the opportunity to fill out forms that may give them a "preference" in the bid process. The online submittal did not have sufficient places to attach all the necessary forms. I believe this to be a deficiency in the online bidding process provided by Collier County at no fault of mine or my company's. I also note that the bid documents (page 4, number 8) provide that that you have the right to waive defects in a bid. To the extent that my election to submit electronically, rather than manually, is determined a "defect ", I think this provision should apply. If so, I presume my company's "local" status will be acknowledged, and J.D. Stevens may be awarded this project as the "lowest, local bid." J.D. Stevens deserves to be awarded this contract. The local preference is supposed to give local companies an advantage over non -local companies. J.D. Stevens is a local company with its primary address here in Collier County. (See www.sunbiz.orQ), while Prolime is a foreign corporation with its primary place of business in Michigan. (Also see www.sunbiz.org) The preferred filing method of the County was Online Bidding "to keep Collier County green," which was how I bid. The bid asked for a unit price and had three other places to attach specific requested forms but none of which were the Affidavit for Claiming Status as a Local Business or Local Preference Form. Because I filed the bid online and not manually, is the only reason J.D. Stevens was not awarded this contract. I feel that there was a deficiency in the online bidding process and that J.D. Stevens should be awarded this contract because we are local, we are low bidder, and we filed a complete bid online which was one of the two options. I immediately followed through the next morning to see if there was any more information needed by the County because the online bidding process failed to allow attachments for all required forms that would have been included if filed manually. I am asking you to reconsider your recommendation in that the spirit of the local preference form is being used against the people it was supposed to help. Thank you in advance for your consideration of this matter. Thank you, Shon Stevens, Pres. J.D. Stevens, Inc.