Agenda - Council - 04/13/2010 - Special

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April 1, 2010 Page 2 (Information to Bidders, p.l., emphasis and capitalization in original, enclosed.) In addition to this plain written statement, all the bidders were pointedly warned by the City Engineer at the pre-bid meeting (which was recorded) that all items on the bid sheet had to be filled out or the bid would be rejected. But despite these plain rules, and despite the fact that this bid was unresponsive and explicitly rejected, the City later decided to "un-reject" and accept the bid. This is flatly prohibited under Minnesota bidding law. The City cannot accept an nonresponsive bid, and certainly cannot simply make up numbers (as it must have done) to complete an unresponsive bid. Minnesota procurement law requires that a public body seeking bids for a project must accept the lowest responsive, responsible bidder. "Responsive" is defined as "conform[ing] substantially to the advertised plans and specifications." Telephone Associates, Inc. v. St. Louis County Bd., 350 N.W.2d 398, 400-401 (Minn. Ct. App. 1984). A bidder's "material variation" from the requirements of the bid solicitation renders its bid nonresponsive. Carl Bolander & Sons Co. v. City of Minneapolis, 451 N.W.2d 204, 208 (Minn. 1990). In Telephone Associates, the Minnesota Supreme Court concluded that where a bidder does not fill in a dollaz amount for a cost requested by the bid solicitation, its bid is nonresponsive. Gohman's bid left out dozens of explicitly required Project costs, culminating in a failure to fill out the amount for "base~bid plus alternates."~ The bid therefore is not responsive and must be rejected under cleaz Minnesota law. There are reasons why the bid form required bidders to fill in the line-item costs. Chief among these reasons is that many of the line-item costs are prices per unit. For instance, Alternate A calls for an estimated quantity of 80 tons of aggregate. But those quantities aze only estimates. The actual amount required could be far larger or faz smaller than the City's rough estimate. That is why there is a specific provision in the Project contract that handles adjustment of the contract price in the event of a quantity over- or under-estimate. (See excerpt from contract article 21, enclosed.) But the contract provision uses the unit price the bidder gave in its bid to calculate how the contract price should change: "The value of any Work covered by a Change Order or of any claims for a change in the Contract Price shall be determined in the following ways: Where the Work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of the items involves." By failing to fill in the unit quantity amounts, Gohman left itself room to azgue, in the event of an overrun, that its quantity prices are very high and it should be compensated accordingly. Peterson, in contrast, has no such wiggle room. By failing to conform to the bid, Gohman obtained an advantage over other bidders. This is not permitted under Minnesota procurement law. Additionally, as Gohman did not fill in a price for "base bid plus alternates," Gohman obtained an advantage over other bidders in that it could decide; after-the-fact, what this bid price should be. Alternately, the City arbitrarily filled in the price, which is completely barred by Telephone Associates. Public officials are prohibited from altering bids even if that alteration \\filel\voll\PL\83746183746-001\1032385.doc