HomeMy WebLinkAbout6.f. Receive Bids/Award Contract - East Side Watermain Phase 2 Improvements, City Project #345CITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
CITY COUNCIL MEETING DATE: April 17, 2003
AGENDA ITEM: Receive Bids /Award Contract — East Side
Watermain Phase 2 Improvements, City Project 4345
AGENDA SECTION:
Consent
PREPARED BY: Andrew J. Brotzler, P.E., City Engineer
AGENDA NO:
ATTACHMENTS: Resolution, Letter of Recommendation, City
APPROVED BY:
Attorney Letter, Easement Compensation Spreadsheet and Exhibits, Bid
Tabulation, Map
Bids for this project were opened on March 14, 2003 with eighteen bids being received.
The low bidder for the project was Three Rivers Construction, Inc. in the amount of $935,792.50. However,
due to an irregularity in the bid process, as summarized in the attached WSB letter of recommendation and the
City Attorney's letter, it is the recommendation of City Staff that the City Council consider awarding the
contract to the second low bidder, Contractors Edge, Inc. with a bid in the amount of $940 The bids
ranged from the low of $935,792.50 to $1,214,180.00. The Engineer's Estimate was $1,144,560.00. This
project will be funded with City Water Core Funds.
This item also requests City Council consideration and approval for compensation to property owners for the
acquisition of easements as summarized on the attached spread sheet and shown on the attached exhibits. As
many of the parcels that easements have been provided or will be provided are being used for agricultural
purposes, it is proposed to compensate the property owners for crop damage at a rate of $0.034/SF. In addition,
for Parcel 4, a Permanent Easement is required for the construction of a valve vault. As the construction of a
valve vault in this location will result in an at -grade structure and impede the future development of the
property, the property owner is proposed to be compensated as shown.
RECOMMENDED ACTION: 1) MOTION TO ADOPT A RESOLUTION RECEIVING BIDS AND
AWARDING THE CONTRACT FOR EAST SIDE WATERMAIN PHASE 2 IMPROVEMENTS, CITY
PROJECT #345.
-AND -
2) MOTION TO AUTHORIZE COMPENSATION TO PROPERTY OWNERS FOR THE ACQUISITION
OF EASEMENTS AS NOTED.
COUNCIL ACTION:
CITY OF ROSEMOUNT
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2003 —
A RESOLUTION RECEIVING BIDS AND AWARDING CONTRACT
FOR THE EAST SIDE WATERMAIN PHASE 2 IMPROVEMENTS
CITY PROJECT NO. 345
BE IT FURTHER RESOLVED, by the City Council of the City of Rosemount, Minnesota, as follows:
1. All bids on construction of the East Side Watermain Phase 2 Improvements have been
received and tabulated.
2. The low bid of Three Rivers Construction, Inc. did not acknowledge Addendum One as
required and is therefore rejected as non - responsive.
3. The bid of Contractors Edge, Inc. in the amount of $940,738.00 for the construction of
said improvements is in accordance with the plans and specifications and advertisement
for bids and is the lowest responsible bid and shall be and hereby is accepted.
4. The Mayor and Clerk are hereby authorized and directed to enter into a contract with said
bidder for the construction of said improvements for and on behalf of the City of
Rosemount.
5. The City Clerk is hereby authorized and directed to return forthwith to all bidders the
deposits made with their bids, except that the deposit of all successful bidder and the next
two lowest bidders shall be retained until a contract has been executed.
6. Award of the bid is contingent on the determination by the City Administrator that all
necessary rights -of -entry or easements by deed or dedication have been secured for
construction of the improvements.
ADOPTED this 17 day of April, 2003.
William H. Droste, Mayor
ATTEST:
Linda Jentink, City Clerk
Motion by:
Voted in favor:
Seconded by:
Voted against:
APR -09 -2003 16:34
'' fA B
&Aasacr«ates, Inc.
i
April 9, 2003
WSB 8 ASSOCIATES INC.
Honorable Mayor and City Council
City of Rosemount
2875 —145 Street West
Rosemount, MN 55068 -4997
Re: Eastside Watermain Phase 11 and Appurtenant Work
City of Rosemount Project No. 345
WSB Project No. 1402 -00
Dear Mayor and Council Members:
7632877170 P.02i24
Bids were received for the above - referenced project on Friday, March 14, 2003, and were opened and
read aloud. A total of 18 bids were received. The bids were checked for mathematical accuracy and
tabulated. Please find enclosed the bid tabulation indicating the low bidder as Three Rivers
Construction, Inc., St. Cloud, Minnesota in the amount of $935,792.50. The second low bidder was
Contractor's Edge, Inc. in the amount of $940,738.00.
There was an irregularity in the bid process. The proposal form submitted by the low bidder did not
acknowledge receipt of an addendum that bad been issued modifying the bidding requirements for the
project. The documentation and issues were submitted to Charlie LeFevere, Rosemount City Attorney,
for review and recommendation regarding award of the contract. A copy of Mr. LeFevere's
recommendation is attached to this letter.
It is Mr. LeFevere's recommendation that the contract be awarded to the second low bidder due to the
irregularity in the bidding process.
WSB &Associates has reviewed the financial records and work history submitted by Contractor's
Edge. Based on that data, Contractor's Edge, Inc. has the necessary means and equipment to perform
the work as required in the project plans and specifications_
It is our recommend that the City Council consider these bids and award the contract to Contractor's
i;
Edge, Inc. based on the results of the bids received and the recommendation from the City Attorney.
If you have any questions regarding this recommendation, please feel free to contact me at 763 -287-
7193.
.;
Sincerely,
WSB & Associates, Inc,
t .,,_)
;, 4150`OIsp
Kevin B. Kawlewski, P.E.
memorla!? r hway Project Manager
Su ao
�1 Enclosure
cc: Andy Brotzler, P.E., City Engineer
John Brindley, Contractor's Edge, Inc.
7 .4. Vaughn ,Bergstrom, Three Rivers Construction, Inc.
91 FI NPWIM140: -00lrecmmdln 11rdoc
7635 64M nnlnneapolis St. Cloud Equal Opportunity Employer
APR -09- 2003- 16:35 WSB & ASSOCIATES INC.
f�R�YJ7�CYJVJ� 1D • VJ4 W�1" & Hn=)UI. LH) t5
Apr - 01:56pm From - Kennedy & Graven
KVnnedy
t_ ><.raven
470 Pillsbury Center
200 Sourh 51xrh Street
NE=Capolu MN 55402
(612) 337 -9300 relephonc
(63 2) 337 -9310 Fax
htEp://www.k=Lted)f-gmvcrl.cOm
7632877170 P.03i24
rO_]z)411 fVJVJ r . bG /
+6123379310 T -019 P -002 /004 F -573
CxARr.ss L.1 MYERE
Aaomry al Lew
Dirocz Md (612) 337.9315
email: cteravete@kcnnedy- gsvm.c=
April 9, 2003
Kevin Kawlewrski
WSB & Associates
4150 Olson Memorial Highway #300
Minneapolis, MN 55422
Re: Eastside Watermaia — Phase 117 Bid Contest
Tear Mz; Kawlews1d:
The City received bids for the Eastside Watermain Project on March 14, 2003. The original
contract specifications were amended by an addendum that was sent to all prospective bidders.
The bidders were required to acknowledge on their bid forms that they had received the
addendum.
The low bidder fnr'the project was Three River Construction with a bid of $935,792.50. The
second low bid was $940,738.00.
The low bidder lxad acknowledged receipt of the addendum by facsimile. However, the bid form,
which was received at a later date, did not aclnlowledge receipt of the addendum,
Failure to ack-mmledge the addendum is a defect or irregulariry in the bid. Within certain
limitations, the Council can waive defects and hregalazities. Therefore, the Council must
determine whether to waive the irregularity and accept the low bid or reject the low bid because
of the irregularity and award the contract To The second low bidder.
The second low bidder has indicated that it will challenge the procedure if the Council waives the
irregularity and awards the corstraact to the low bidder.
If the irregularity is waived and the contract is a warded to The low bidder, a challenge would
usually involve seeking a temporary restraining order and Temporary wunction- These are Court
Orders that preserve the status quo (i.e. prevent the City from awarding or proceeding with the
contract) until The legality of the City Council's actions can be determined in a trial. This would
have the effect of delaying the project until the matter is finally resQlvcd in Court.
CLL- 329945
89215.3
RPR -09 -2003 16:35 WSB & ASSOCIATES INC.
WK 1z�; W4 Wtib & H,DUG 1 H ! t,
Apr -09 -03 01:58pm From-Kennedy & Graven
Kevin Kawlewsld
P age 2
7632877178 P.04/24
Yt3,411 *6010 t. W /104
+6123378310 T -019 P.003/004 F -573
In det errnlnin g whetber to issue a temporary restraining order or temporary injunction, the Court
will coxaider a number of factors, the most important of which in this case would probably be the
likelihood that the challenger would succeed at trial oyt the merits of the cage.
It evaluating the merits of the case, Court will consider whether the defect is "material." In this
case, you have advised me that the difference in value of the project with and without the
addendum is approximately $276.00. That is, a bidder who did not include the addendum in its
bid would be expected to bid approximately $276.00 Icss. This would not seem to be a material
amount on a bid of $935,792.00 (about 3/100 of M It is possible that a court would conclude
that this is not a material defect and allow the ao=il to award the contract to the low bidder.
However, the most importaw !rind of bid defect is one diet goes to price, and the addendum
would have made a difference in price. In one case, a Federal claims court Wiled that the failure
to acknowledge receipt of an addendum of a value of $1,500.00 required rejection of the bid on a
contract of $11,000,000.00 (about 1/100' of 1 %). Grade -way Construction vs_ United States, 7
Cl_ Ct_ 263 (1985). And in Duininck Brothers. Inc vs. State of Minnesota, C3 - -972 (NN_ App.
November 25, 1979), the Minnesota Court of Appeals affirmed the rejection of a bid for failure
to acknowledge an addendum having a value of $13,000.00 on a contract of $2,364,000.00
(about % of 1 %).
An irregularity with a value of $276-00 may not be great enough so that a Minnesota court would
compel the City to reject the bid. However, a challenge to the waiver of an irregularity of this
Idud that has an effect on price would stand at least a fair chance of succeeding on the merits.
The Council should also consider that the project may be delayed by a temporary restraining
order or temporary uijunction for several months and, to secure an injunction, the challenger is
not required to prove that the City acted illegally, Rather, the challenger is required only to
demonstrate a reasonable chance of success on the merits. Given the fact that the addendum does
affect the price, I believe that there is a good ch�mce that the project would be delayed in the
event of a challenge.
It is possible, on the other hand, that if the City rejects the low bid and awards the contract to the
second low bidder, the low bidder will challenge the award of the conlaact. However, in my
opinion, such a challenge is much Rely to prevail since the bid irregularity and the fact that the
bid irregularty wotila have had effect on the price is probably undisputed.
In summary, in my opinion, the most defensible position for the City would be to reject the Iow
bid on the basis ofthe bid irregularity. The two other options available to the City are 1) to Meet
all bids and readvertis% which would also be a defensible position, and 2) to waive the
irregularity and award the contract to the low bidder, Of these three, the least defe118ibie positio
Would be to waive the irregularity and award the contract to the low bidder.
CLL.-,229"5
AS215.3
APR-09-2003 - v 16 :35 WSB & ASSOCIATES INC.
Apr -09 -09 0118pm From- Kennedy a Graven *8128879910
Kevin Kawlcwsld
N 3
Let me kmow if you have any fwffier questions.
Very trwy yours,
Q-IL-��
Charles L_ LeFevere,
CT -L-se2
Cu -2 29945
RMS -3
76328771'70 P.05/24
T - 019 P.004 /004 F - 578
TOTAL P.04
APR -09 -2003 16:35 WSB & ASSOCIATES INC.
PROJECT:
Eastside Watermain Phase II and Appurtenant Work
City of Rosemount Project No. 345
LOCATION:
Rosemount, MN
WSB PROJECT NO(S).:
1402 -00
Bids Opened: Friday, March 14,.2003, 10.00 A.M.
7632577170 P.06i24
Contractor Addendums Rec'd. Bid Sec urity Total Bid
1
Three Rivers Construction, Inc,
X
$935,792.50
2
Contractors Edge, Inc.
X
X
$940,738.00
3
Redstone Construction Company, Inc.
X
X
$946,930.03
4
Municipal Contracting Services
X
X
$949,397.00'=
5
A Excavating, Inc.
X
X
$950,079.00
6
Heselton Construction, I-LC
X
X
$975,964,00
7
Barbarossa and Sons, Inc.
X
X
$983,265.00""
8
Ryan Contracting Co.
X
X
$99$,970.50
9
Burschville Construction, Inc.
X
X
$1,008,577.50
10
Utility Systems of America, Inc.
X
X
$1,015,957,50
11
Northdale Construction Company, Inc.
X
X
$1,024,201.33
12
Park Construction Company
X
X
$1,052,031.96
13
Veit & Company, Inc.
X
X
$1,059,291.00
14
Friedges Contracting Company, LLC
X
X
$1,063,718.37'*
15
Owatonna Construction Co., Inc.
X
X
$1,067,584.50
16
Arcon Construction Company, Inc.
X
X
$1,092,027.70
17
Hydrocon, Inc.
X
X
$1,166,000.00
18
Holst Excavating, Inc.
X
X
$1,214,180.00
Enginear's Opinion of Cost $1,144,560.00
I hereby certify that this Is a true and correct tabulation of the bidl as r9celved on March 14, 2003.
P.E.,
Denotes corrected figure
Eastside Watermain Phase II Easement Acquistion
Parcel
Property Owner
Status
PE Area (SF)
TE Area (SF)
Total (SF)
Total (AC)
Disturbed Area
Crop Damage
Acquired Area
(AC)
Permanent Easement
Acquistion Cost
Total
Compensation
l
Cen
r m. d &u easem
0
0
0
0.00
0.00
$
0.00
$
$ -
2
_
John Weide
ri ht of entry
12000
0
12000
0.28
0.28
$ 413.22
0.00
$
$ 4 13.22
3-
A_rcon Development/Pem /W
_
right of entry
40037
0
40037
0.92
0.92
$ 1,378.68
0.00_ _
$
$_ 1,37 8.68
4
John Weide
right of entry
407
230242
270991
6.2
6.22
$ 9,331.65
0.1 _
$ 5,730.49
$ 15,062.13
5
Tracey & Rhonda Busswitz
eliminated
0
0
0
0.00
0.00
$
0.00
$
$ _- -
6
State of Min nesota
none neede
0
0
0
0.00
0.00
$ -
0.00
$ --
$ -
- - - - --
- - - --
7
- - -- - - - --
M ary Courteau
-- - - - - --
ri ht of entry
47217
128582
175799
4.04
4.04
$ 6_ ,053.6 8_
0.00
$ _
_$_ 6,053.68
8
Wayne & Sheila Groth
eliminated
0
0
0
0.00
0.00
$ -
0.00
_$
$ ____
9
_
Earl & Florence Bester
signed
0
_
13240
13240
0.30
0.30
$ 455.92
0.00
$ _ __
$ 45 5.92
10
Earl & Florence Bester
signed
26481
92692
119173
2.74
2.74
$ 4, 103.75
0.00
$
$ 4,103.75
11
Mary Courteau
right of entry
26480
9266
1191
2.74
2.74
$ 4,1 02.89
0.00
$ _ -
$ 4 ,102.89
12
A dam Kra
elim
0
0
0
0.00
0.00
$ -
0.00
$_
13
-- - - - - --
_ _
Laverna Doehling -
------ -- - - --
signed -
2
-
92699
1 1918 6
- -
2.74
0.00
$
0.00
$ _
-
$
- - --
14
Koch Ex
si gned
13245
46370
59615
1.37
0.00
$
0.00_
$
$
15
Koch Ex ploration/FHR
signed
0
1291
12914
0.30
0.00
$
0.00
$ _
$
16
- --
Koch Exploration/FHR
- --
si -
-
12583
44037
56620
1.30
0.00
$
0.00
$
$
17
Koch Exploration/FHR _ _ _ _
signed
100977
222345
323322
7.4 2_
0.00 _
$
0.00
$
$
18
Koch Exploration FHR
signed
560
2942
3502
0.08
0.00
$
0.00
$
$
Totals $ 25,839.81 $ 5,730.49 $ 31,570.29
Crop Damage rate is $0.034 per square foot.
2 Permanent Easement Acquistion valued at $32,500 per acre for valve vault site plus $2000.00 for attorney fees incurred by property owner.
REV: JANUARY 31,2003
J 4150 Olson Memorial Highway WSB Project No. 1402 -002 Date: January 24, 2003
A Minneapolis, M
li Suite 300 East Side Watermain Phase II
N 55422
783-541.4800 Easement Exhibit p
F '" "°° Parcel 2 City of Rosemount, Minnesota
m: a1E01402- 00 *Survev-)uoarcel -2.dan
N LINE OF THE S 112 OF THE NW 1/4
E LINE OF THE S 1/20F THE NW 1/4
W LIKE OF THE S 1/2 OF THE NW 1/4
W'LY R/W LINE OF
AKRON AVENUE
PROPOSED PERMANENT UTILITY AND
DRAINAGE EASEMENT AREA = 40037 sq ft
— - — - — - — - - — - — - — - — - — - —
---- - - - - - - - - - I -- - - - - -- -- - - - --- - - - - - - - - - - - - - - -
S LINE OF THE S 1/2 OF TIM NW 114 CSAH 42
I
.; +0 14 02 -00 I 1 -3. dg0
o mo 20
E LINE OF THE S 1/20F THE NW 1/4
W LIKE OF THE S 1/2 OF THE NW 1/4
W'LY R/W LINE OF
AKRON AVENUE
PROPOSED PERMANENT UTILITY AND
DRAINAGE EASEMENT AREA = 40037 sq ft
— - — - — - — - - — - — - — - — - — - —
---- - - - - - - - - - I -- - - - - -- -- - - - --- - - - - - - - - - - - - - - -
S LINE OF THE S 1/2 OF TIM NW 114 CSAH 42
I
.; +0 14 02 -00 I 1 -3. dg0
- 1150 Olson Ma S-1 W
/i SB AM1nrisapofq MN 55112
East Side Watermain. Phase II
Easement Exhibit
City of Rosemount, Minnesota
Wsa P,*d Na UM-M
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— 01402- 00*5urvey— r- 1 -4.Cgn
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East Side Watermain Phase II
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City of Rosemount, Minnesota
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MEMORANDUM
TO: Honorable Mayor and City Council Members
Jamie Verbrugge, City Administrator
FROM: Andrew J. Brotzler, P.E., City Engineer /
DATE: April 15, 2003
RE: Supplemental Information for Regular Council Meeting, April 17, 2003
East Side Watermain, Phase 2 Improvements, C.P. # 345
Agenda Item 6.f
As noted in the executive summary for the above item, there was an irregularity in the low bid
submitted by Three Rivers Construction, Inc. Based on this, the recommended action is for
Council to consider awarding the contract to the second low bidder, Contractors Edge, Inc.
At this time, representatives of Three Rivers Construction, Inc. have requested that they be
provided with an opportunity to address the Council regarding this item. Should Council choose
to provide Three Rivers Construction, Inc. with an opportunity to address the Council, this item,
currently part of the Consent Agenda should be pulled from the Consent Agenda for discussion.
Should you have questions regarding this item, please do not hesitate to contact me.
G:\ENGPROJ\345\councilmemo.041503.doc
F,
Eastside Watermain Phase II (Ov E Map)
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City of Rosemount_ D akota Cnunty MinnPCnt.a
I
APR -14 -2003 13:38 WSB & ASSOCIATES 7635411700 P.02iO4
FROM LEONARD STREET & DEINARD (MON) 4.14'03 13:36/ST.13:29/NO.4261040754 P 2
LEONARD, STREET AND DEINARD
PROFESSIONAL ASSOCIATION
April 14, 2003
BY FAX ONLY
Kevin B. Kawlewski, P.E.
WSB & Associates, Inc.
4150 Olson Memorial Highway, Suite 300
Minneapolis, MN 55422
Be. EastsWe Watermain Phase Hand Appurtenant Work
City of Rosemount
City Project No. 345
WSB Project No. 1402 -00
Dear Mr. Kawlewski:
Robert J. Huber
612 -335 -1714
Bob.Huber @leonard.com
I am writing on behalf of Three Rivers Construction to explain why its bid's failure to aclmowledge
the bid addendum was a minor, waivable irregularity.
1, The Addendum.
On March 7, you faxed to all planholders the bid's only addendum, Addendum No. 1. The
addendum did three things. First, it corrected two typographical errors in Section 02622. Here is
the corrected provision (red -lined to show the changes):
4 -inch full port pressure reducing and pressure sustaining valve (Cla Val Model 692-
29 or Golden Anderson Valve 4700). It shall be a 150 -pound flanged globe valve
with stainless steel rim material including seat, guide bearing and disc guide and the
following adjustment range options:...."
Both revisions ue technical, no -cost changes and were undoubtedly included in the addendum in
response to remarks from Cla Val valve distributor, who simply wanted to make sure that you were
properly describing the valve and so eliminate any remote possible challenge to the use of the Cla
Val 92 -29 valve.
The second part of the addendum is also a technical, no -cost change. It simply stated a performance
characteristic that the two specified models already had (or they would not have been named):
"Valve control for the 16 -inch and flinch valve shall be capable of converting to future remote
electric operation for both pressure reducing and sustaining and remote indication of valve
position." This allowed other valve manufacturers to know what performance requirements a
proposed substitute must meet.
150 SOUTH FIrTH STREET Su1TE 2300 MINNLAPOLIS, M1NNiISOTA 55302 TEL 612-335 -1500 FAX 612 -335 -1657
LAW OFYICAS IN MINNEAPOLIS, SAINT PAUL, MANKATO. SAINT CLOUD AND WASHINGTON, U.C.
APR - 14 -2003 13:39 WSB & ASSOCIATES 7635411700 P.03iO4
FROM LEONARD STREET & DEINARD (MON) 4. 14' 03 13:37/ST. 13:29/NO. 4261040751 P 3 t
April 14, 2003
Page 2
! The third part of the addendum is yet another technical, no -cost change. The landscaping work was
already required by the plans, and the protect manual included a landscaping specification
(referenced in the addendum). The bid also included prices for the landscaping. Though it was
already clear that landscaping was part of the contract's scope of work, the addendum was simply to
make sure that no one could even try to argue otherwise.
2. Three Divers Acknowledged Receipt of the Addendum Before Bidding
Importantly, Three Rivers acknowledged receipt of this addendum before submitting its bid. In
your fax cover sheet, you asked bidders to "[pllease acknowledge receipt of this addendum by
signing this form and returning via fax immediately after receiving, ...." (Emphasis in original.)
Your cover sheet included a signature line for the acknowledgment. Von Bergstrom of Three
Rivers signed the acknowledgment line and returned it to you by fax on March 10, four days before
bids were opened. There is no question that Three Rivers received the addendum.
3. The City's Attorney Recommended Not To Award to Three Rivers
After bids were opened on March 14, you notified Three Rivers that its bid contained an
"irregularity," the failure to acknowlcdge receipt of the addendum, and that the City's attorney was
reviewing the bids for the purpose of making a recommendation to the City. On April 8, you
notified Three Rivers that the City's attorney had recommended award to the second love bidder
"because acknowledgment of receipt of Addendum No. 1 was not indicated on the proposal form"
4. A Failure to Acknowledge an Addendum is Waivable if Addendum is Not Material
Your April 8 letter also told Three Rivers that it has the opportunity to address the city council at its
April 17 meeting. Rather than wait till then to state its position to the City, Three Rivers has asked
me to explain why the City has the discretion to award the contract to Three Rivers.
In the Instructions to Bidders, the City informed bidders that it would award the contract to "the
lowest responsive, responsible bidder" but reserved "the right to waive any and all informalities" in
any of the bids. The City, therefore, has the discretion to waive minor irregularities in the bids on
this project. Electronics Unlimited, Inc. v. Village ofEurmcville, 182 N.W.2d 679 (Minn. 1971).
An irregularity is minor if it does not affect price, quality, quantity, manner of performance, or
other things that go into the actual determination of the amount of the bid. Griswold v. Ramsey
County, 65 N.W.2d 647 (Minn. 1954). The test of an irregularity's materiality is `whether it
gives a bidder a substantial advantage or benefit not enjoyed by other bidders." Coller v. City of
St. Paul, 26 N.W.2d 835, 840 (Minn. 1947).
Not all addenda are material requiring bid rejection if not acknowledged. The failure to
acknowledge a bid addendum is a waivable irregularity if the addendum (1) eases performance,
(2) increases costs by only a negligible amount, or (3) is purely technical without a cost impact. See
Paul Shnitur, GOVERNMENT CONTRACT BIDDING, at 11 -28 — 11- 31(Fed. Pub., 3d, ed.
1992) (citing numerous decisions); Richard J. Bedmar, et al, CONSTRUCTION CONTRACTING,
at 101 -04 (Geo. Wash. U. 1991); see, e.g., Grade -Way Constr. v. United States, 7 Cl. Ct. 263, 268-
2336362vi
APP -14 -2003 13:39 WSB & ASSOCIATES 7635411700 P.04iO4
FROM LEONARD STREET & DEINARD (MON) 4.14'03 13:37/ST.13:29/NO.4261040754 P 4
r
April 14, 2003
Page 3
70 (1985) (two addenda held non - material; one specified an assumed start date and noted that some
i rights -of -way would not be immediately available, and the specified that "fat" clay could not be
used in embankment); Martel Constr. v. State, 668 P.2d 222 (Mont. 1983) (failure to acknowledge
bid addenda held waivable because cost of addenda work was less than the difference between the
low bid and the second low bid).
51 The City May Waive Three Rivers' Failure to Acknowledge the Addendum in the Rid
Applying these rules to the failure of Three Rivers to acknowledge the addendum in its bid, the City
should be convinced that the irregularity is minor and waivable. Addendum No. 1 was purely
technical and had no cost impact. Even if one could argue that there was a cost impact, and I cannot
imagine that anyone could, that impact is negligible.
Additionally, the City has absolute proof that Three Rivers received the addendum and was aware
of it, which totally eliminates any argument that Three Rivers had any advantage over other bidders.
On top of that, all of the valve manufacturers quoting to Three Rivers and other bidders had
certainly received the addendum and were quoting valves that conformed to the bid documents,
including the addendum, so there can be no question that the valves in the bid of Three Rivers were
as specified in the bid and addendum.
Though you cannot give a legal opinion on whether the City should reject the bid of Three Rivers,
you certainly can give an opinion on whether the addendum (1) eases performance, (2) increases
costs by only a negligible amount, or (3) is purely technical without a cost impact.. This is the
factual basis of the legal opinion on whether the City may waive the irregularity in the bid of Three
Rivers.
Please consider the matter, in consultation with the City's attorney. Perhaps with this information,
especially the City's proof of actual receipt of the addendum, the City's attomey may re- consider
his recommeadation_
Enclosed for your convenience is a copy of the pre-bid acknowledgment of the addendum.
Thank you.
Sincerely,
. Huber
cc: Andy Brotzler, City of Rosemount (by fax)
Charlie Le Fevere, Kennedy & Graven (by fax)
Von Bergstrom, Three Rivers Construction (by fax)
2336862vt
TOTAL P.04
FROM LEONARD STREET & DEINARD
(WED) 4, 16' 03 11; 36 /ST. 11: 35/N0. 4261040912 P 1
i LEONARD, STREET AND DEINARD
PROFESSIONAL ASSOCIATION
150 SOUTH FIF rH STREET SUITE 2300 MINNEAPOLLS, MINNFSr.TA 55402
i
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TEL 612- 335 -1500 FAX 612- 335 -1657
LAW OFFICES IN NLTNNEAPOI.IS, SAINT PAU4 An MANKATO
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FACSIMILE TRANSMITTAL LETTER
I
CONFIDENTIALITY NOTE: The information contained in this telecopy message is being transmitted to and is intended only
for the use of the individual named below. If the Tcadcr of this is not the intended recipient, you are hereby advised that any
dissemination, distribution or copy of this telecopy is strictly prohibited. If you have reccivrd this telecopy in error, please
immediately notify us by telephone and destroy this telecopy message.
Date of Transmittal: April 16, 2003
I
Recipients: See Below
l
Name /Company Facsimile No. Telephone No.
Andy BrotAer /City of Rosemount 651- 423 -5203 651- 322 -2025
Sender's Namc. Bob Huber 388
Sender's Number, 612- 335 -1714
Crent/Mattcr Numbers: 56148 -00001
COMMENTS;
i
IF YOU ARE HAVING PROBLEMS RECEIVING OR TRANSMI'T'TING, PLEASE CALL: 612-335-17( W.
Return original to: J. Mesenbrutg/22
Sent by
i Date: ...... ...............................
Time: ....... ...............................
Notified sender.
FROM LEONARD STREET & DEINARD
(WED) 4,16'03 11:36/ST. 11:35/NO, 4261040912 P 2
LEONARD, STREET AND DEINARD
PROF6$$IONAI• ASSOCIATION
I
i
April 16, 2003
BY FAX ONLY
Kevin B. Kawlews1d, P.E.
WSB & Associates, Inc.
4150 Olson Memorial Highway, Suite 300
Minneapolis, MN 55422
Re: Eastside Watermain Phase Hand Appurtenant Work
City of Rosemount
j City Project No. 345
N'SB Project No. 1402-00
Dear Mr. Kawlewski:
Robert J. Hubcr
612- 335 -1714
Bob.Huber ageonardxom
Enclosed is a copy of the pre -bid acknowledgment of the addendum which was inadvertently
omitted from my letter to you of April 14.
Sincerely,
i ARD, STREET AND DEINARD
I
rt J. Huber
RJH/jm
i. Enclosure
1
cc: Andy Brotzler, City of Rosemount (by fax)
Charlie Le Fevere, Kennedy & Graven (by fax)
Von Bergstrom, Three Rivers Construction (by fax)
e
150 SOUTH FIFTH STREET SUITC 2300 MINNEAPOLIS, MINNESOTA 55402 TEL 612- 333.1500 FAX 612- 335.1657
2338142v1 LAW OFFICES IN MINNUArOLIS, SAINT PAUL, MANI,ATO, SAINT CLOUD AND WASHINGTON, D.C.
FROM LEONARD STREET & DEINARD (WED) 4.16'03 11:36/ST, 11:35/NO. 4261040912 P 3
i
JRN_12.1995 7:55AM NO.175 P.11i12
j MISS A Ab*bohds+l Jna
41SV OfA s Memar d H OW
MftVKAPd& UN OW2
WS B (Aim Sd1-AM
041 -17M (rte
d IW.
ADDE„_ UM N-0,1
To; All Plan Holders
Date: March 7, 2003
From: Kevin Kawisaystd, P.E.
Project Manager
RE: Eastside Watermain Phase 11
and Appurtenant Work
City of Rosemount Project NO. 345
WsB Project No. 1402-00
Number of pages Including this cover page; 3
Please acknowledge receipt of this addendum by aloning this form,
and returning via fax immediately after receiving, even It you are not
bidding on the project, Our fax number is.
(763) 541 -1700
Addendum No.1 received by:
7 a ' t. a - /n '' - a -
Name
Company
3- /C�
Date
tNWP1�IRM1�o111NdRFw74Mrwr ►gym 1 Far riv
lYA iTh 1 (7" 1 T T✓ -d I Q7I V t_V'JO'Q1.1 A RO1M QF.• T C%f%M7-J M - ULJ..
■
i ,: FROM LEONARD STREET & DEINARD
i
th
i�
(THU) 4, 17' 03 15:01/ST. 15:01/NO. 4261040037 P 1
_ 115 -
LEONARD, STREET AND DEYNARD
PROFESSIONAL ASSOCIATION
150 S0 1JTH FIFTH STREET SUITE 2300 MINNEAPOLIS, MINNESOTA 55402
TEL 612- 335 -1500 FAX 612- 335 -1657
LAW OFFICES IN MINNEAPOLIS, S A INT PAUL. AND MANKATO
FACSIMILE TRANSMIT l LETTER
CONFIDENTIALITY NOTE The information contained in this telecopy message is being transmitted to and is intendcd only
for the use of the individual named below. if the reader of this is not the intendcd recipient, you are hereby advised that any
dissemination, distribution or copy of this telecopy is strictly prohibited. If you have received this telecopy in error, please
immediately notify us by telephone and d estroy this telecopy message.
Date of Transmitm]:April 17, 2003
Recipients: See Below
Name /Company Facsimile No. 'Telephone No.
Andy Brotzler /City of Rosemount 1 651 -423 -5203 1 651- 322 -2025
Sender Name: Bob Huber 388
Sender's Number: 612- 335 -1714
i
CiientMlatter Numbers: 56148 -00001
COMMENTS:
if YOU ARE HAVING PROBLEMS RECEIVING OR TRANSMTTTING, PLEASE CALL: 612- 335 -1760.
Return original to: J. Mcsenbring/22
Sent by: ........ ...............................
Date: ...... ...............................
Time: ... ...............................
Notified sender. .................................. I....
FROM LEONARD STREET & DEINARD
(THU) 4.17'03 15:02/ST. 15:01/NO. 4261040037 P 2
LEONARD, STREET AND DEINARD
FKQFESSIONAL ASSOCIATION
April 17, 2003
BY FAX ONLY
Kevin B, Kawlewski, P.E.
WSB & Associates, Inc.
4150 Olson Memorial Highway, Suite 300
Minneapolis, MN 55422
Ite: Eastside Water"tairr Phase H and Appartenartt Work
City of Rosemount
City Project No. 345
WSB Project No. 1402 -00
Dear Mr. Kawlewski:
Robert J. Ruber
612- 335 -1714
Bob-Iluber@leonard.co
I am writing on behalf of Three Rivers Construction to provide further information after a
discussion with the City's attorney yesterday.
When I wrote my April 14 letter to you, my client was unaware that there was any difference
between the two valves. (The City's attorney, Charlie Lefevere, toad me that there is a $176
difference between the two models.) MY client assumed a typographical error. He reviewed th
quotation from Northwestern Power Equipment, which is what he used in his bid, and found that it
references Addendum No. 1. Jn addition to this reference, you records should confirm that
Northwestem Power Equipment received the addendum (if the addendum was sent to Northern
Power and was acknowledged).
Mr. Lefevere also said that the addendum added about $100 worth of landscape work, the seeding
around the valve. Three Rivers sees this as a clarification of the work, not an addition, as he had
assumed that this landscaping was already included (You always landscape around valves, and the
plans and specifications did not indicate otherwise.)
As I mentioned in my April 14 letter, the addendum was not material and, as a result, you may
waive the failure of Three Rivers to acknowledge it in its bid. The failure to acknowledge a bid
addendum is a waivable irregularity if the addendum (1) eases performance, (2) increases costs by
only a negligible amount, or (3) is purely technical without a cost impact. See Paul Shnitzer,
GOVERNMENT CONTRACT BIDDING, at 11 -28 — 11 -31 (Fed. Pub., 3d: ed. 1992) (citing
numerous decisions); Richard J. Bedmar, et al, CONSTRUCTION CONTRACTING, at 101 -04
(Geo. 'Wash. U. 1991); see, e.g., Grade -Way Constr. v. United States, 7 Cl. Ct. 263, 268 -70 (1985)
(two addenda held non - material; one specified an assumed start date and noted that some rights -of-
150 SOUTH FIFTH STNH SUITE 2300 MINNEAPOLIS, MINNESOTA 55402 T6L 612- 305.1500 FAX 512- 335 -1657
2338995v1 LAW OFFICES IN MINNEAPOLIS, SAINT PAUL, MANYATO, SAINT CLOUD AND WASHINGTON, D.C.
FROM
r
i
i
LEONARD STREET & DEINARD
April 17, 2003
Page 2
(THU) 4.17'03 15:02/ST. 15:01/NO. 4261040037 P 3
way would not be immediately available, and the specified that "fat" clay could not be used in
cmbankrnent); Martel Consrr, v. State, 668 P.2d 222 (Mont. 1983) (failure to acknowledge bid
addenda held waivable because cost of addenda work was less than the difference between the low
bid and the second low bid).
To the extent the addendum had a cost impact, it was negligible ($276). And again, the City has
absolute proof that Three Rivers received the addendum and was aware of it, which totally
eliminates any argument that Three Rivers had any advantage over other bidders. On top of that, the
addendum was acknowledged in the quotation used by Three Rivers.
Please consider the matter, in consultation with the City's attorney. Perhaps with this information,
especially the City's proof of actual receipt of the addendum, the City's attorney may re- consider
his recommendation.
I plan to attend tonight's council meeting with my client. Thank you for your consideration.
Thank you.
Sincerely,
LE ET AND DEINARD
Rob er
RJH/jm
cc: Andy Brower, City of Rosemount (by fax)
Charlie Le Fevere, Kennedy & Gravcn (by fax)
Von Bergstrom, Three Rivers Construction (by fax)
2338995vi
APP. -14 -2003 13:33 WSB & ASSOCIATES 7635411700 P.01iO4
FROM LEONARD STREET & DEINARD (MON) 4.14'03 13:36/ST, 13:29/NO, 4261040754 P 1 r
LEONARD, STREET AND DEINARD
PROFESSIONAL ASSOCIATION
I
150 SOUTH FIFTH STREET SUITE 2304 MINNEAPOLIS, MINNESOTA 55402
TE1, 612- 335 -1500 Fax 612 -335 -1657
I.AW OFFICES IN MINNEAPULIS, SAINT PAUL, AND MAN'KATO
rACSIMILE TRANSMITTAL LETTER
CONFIDENTIALITY NOTE: The information contained in this telecopy message is being transmitted to and is intended Only
i for the use of the individual named below. If the reader of this is not the intended recipient, you are hereby advised that scary
dissemination, distribution or copy of this telecopy is strictly prohibited, if you have received this telecopy in error, please
immediately notify us by telephone and destroy this telecopy message.
14 1
Date. of Transmittal:Apii1 W, 2003
r
j Recipients: See Below
Name /Company i Facsimile No. Telephone No.
Kevin Kawlewsld/WSB 763 -541 -4800 763- 541 -1700
Sender's Name: Bob Huber 388
Sender's Number. 612- 335 -1714
Client/Matter Numbers: 56148 -00001
COMMENTS:
i
IF YOU ARE HAVING PROBLEMS RECEIVING OR TRANSMITTING, PLEASE CALL: 612- 335 - 1760.
Return original to: J. Mesenbring/22
Scntby: ................. — .... ° °•........,
Date: ........ ...............................
Time:....... .... ........................
Notified sender: ........ ...............................