Resolution - #10-04-082A - 04/13/2010

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City representative that opened the bids rejected the Gohman bid as unresponsive at the time of the bid opening. Peterson has demanded that the City rescind the award to Gohman and award contract A to Peterson, and has threatened "immediate legal action" if the City does not do so. WHEREAS, the City Engineer opened and read the bids at the bid opening, and recalls no statement about Gohman's bid except for noting that the bid did not state a total for the base bid plus alternates. The City Engineer does not have the authority to reject a bid, and the City Council did not reject Gohman's bid. WHEREAS, the instructions to bidders stated: "BIDS are required for all alternates, incomplete bid forms will result in disqualification." (Emphasis in original.) The instructions further state: "THE OWNER may waive any informality or minor defects or reject any and all BIDS." WHEREAS, legal counsel for the City has advised that a bid containing immaterial variances or minor technical defects should not be rejected if the defect does not affect the substance of the bid. The test of whether a variance or defect is material is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders. Price or other things that go into the actual determination of the amount of the bid are matters involving the substance of a bid. WHEREAS, legal counsel for the City has advised that the City may waive the requirement that bidders are compelled to bid on all alternate items. If the City Council elects to award the contract with an alternate on which a bidder has not bid, or has defectively bid, that bidder must be disqualified. If the City Council elects to award the contract without an alternate, the fact that one or more of the bidders did not bid, or defectively bid, that alternate is immaterial. WHEREAS, the City has received the promise of a grant of $365,000, if certain portions of the work under contract A are completed by the end of June, 2010. If the project were delayed by litigation, it is the City Engineer's opinion that the June, 2010 deadline could not be met and the grant moneys would be forfeited. WHEREAS, Peterson has alleged that Gohman's bids for Alternates A, B, C, D, and M are defective. The City Council believes Peterson's threat to commence legal action is genuine. WHEREAS, even if the City prevails in a legal action to defend the award to Gohman including Alternates A, B, C, D, and M, it may lose the $365,000 grant. WHEREAS, the City has not yet executed a contract with Gohman WHEREAS, in the City Engineer's opinion, Alternates A, B, C, D, and M are not integral to the work covered by the base bid for contract A, and the work described in these alternates may be let out for bid and installed at a later date. RESOLUTION #10-04-082P Page 2 of 4