HomeMy WebLinkAboutRES-1998-005 Regarding Request to Disqualify the Proposals of O C Mitchell Jr Inc for the Renovation of Skills Development Center 02-25-1998~~~
a ,~ ~~
NORTH CAROLINA
ORANGE COUNTY
RESOLUTION REGARDING
REQUEST TO DISQUALIFY
THE PROPOSALS OF O.C.
MITCHELL, JR., INC.
FOR THE RENOVATION OF
THE ORANGE COUNTY SKILLS
DEVELOPMENT CENTER
WHEREAS, on November 20, 1997, Orange County received
proposals for the renovation of the Orange County Skills
Development Center which proposals are shown on bid tabulation
forms, copies of which are together Exhibit A to this Resolution;
and
WHEREAS, The Resolute Building Co. sought the
disqualification of the proposals of O.C. Mitchell, Jr., Inc. for
the reasons and as stated in the November 21, 1997 and December
15, 1997 letters from attorneys of The Resolute Building Co.,
copies of which are Exhibits B and C respectively of this
Resolution; and
WHEREAS, Orange County has received documentation from its
architect, Dixon Weinstein Architects, P.A., and from O.C.
Mitchell, Jr., Inc. which documentation includes a December 9,
1997 letter and a January 8, 1998 letter from O.C. Mitchell, Jr.,
Inc. to Dixon Weinstein Architects, P.A. and a January 8, 1998
letter to Orange County from Dixon Weinstein Architects, P.A.,
copies of which documents together are Exhibit D to this
Resolution; and
WHEREAS, the Board has considered the documents that are
Exhibits A-D and letters from the County Attorney dated December
5, 1997 and January 13, 1998 addressed to the attorneys for The
Resolute Building Co., copies of which are Exhibit E and F
respectively of this Resolution;
NOW, THEREFORE, IT IS RESOLVED BY THE BOARD OF COMMISSIONERS
OF ORANGE COUNTY THAT, based on the documents which are exhibits
to this Resolution and all other things coming before the Board,
there is no factual basis and no basis in the law for
disqualifying the bids of O.C. Mitchell, Jr., Inc. on the Orange
County Skills Development Center renovation project.
Upon motion made by MOSES CAREY, JR. seconded by
STEPHEN HALKIOTIS the foregoing resolution was adopted.
Ayes• Chair Margaret W. Brown and Commissioners Moses Carey, Jr.,
William L. Crowther, Alice M. Gordon and Stephen H. Halkiotis
Noes:
NONE
I, Beverly A. Blythe, Clerk to the Board of Commissioners
for the County of Orange, North Carolina, DO HEREBY CERTIFY that
the foregoing has been carefully copied from the recorded minutes
of the Board of Commissioners for said County at a regular
meeting of said Board held on January 20, 1998, said record
having been made in the Minute Book of the minutes of said Board,
and is a true copy of so much of said proceedings of said Board
as relates in any way to the passage of the resolution described
in said proceedings.
WITNESS my hand the corporate seal of said County, this
25th day o f February 19 9 8 .
Jerk to e Board o Commissioners
lsg-11\ocmitc.res
EXHIBIT A
Nov-24-97 1a:35A Dixon M.zlnstoin Arct~itsact 929-96g-0473 P-~Z
rn 'sN~ •j P,~c~{l
~~
s~w!yxy~ ~.gcu~eM uox,p
'A~a,ao~'.5
'"PP•9'"'°I °'~ 4~"" auo4oyv6au u~°q puo swoa uo~d puo
~Q~o'J 1Ea ~ly0i' {{I~ °/it puo Peax,d cv 8'I•! P1r'O''" ~+""OJ v8vo~p ~vwy sn J(~gou esoa~
papaao~d ~"°u'ele}°
ou Bin~oay puo fu0a~uaW! rro paow+ouw wa •ur~u mn+ ~ royl °~9 p~u°dv q °ti °1a'"
rrd~awo ~c wrno~oq ppaaawva, oq o1 s~o;+ddv sadola~va ~wod+i ,oy P°b1 °i~ °' ,,,,~, ti,µ~
~ ~ ~(j~yp ~ Y! WpM P721{( B~N~S -~ ~ ~1"^~ 10 Iv08R~D'J WC~~~.~
~,~ aye »y~!° ~ s,a~q }o lagwnu P°'~a °'~' asay;ou °P ala acm u, pauado
a) °~ p~q ~° aW xy ano nw~p a s. svdo!°+~ °w~ w lpt4'°I +ea"bi, .gyp 'Suwada
~ awnp ono pepaspd pa„4 SV •sdo~ewe awes act n~pnn odd wavy-~++yY p~ a~Ud aun.-d wrp: ~y W~
~'ut5 +'.~ 6u}~no~vo~ gP•9 P°q•'"9"s •"'I .•,~ •A'g'n~V '~ 'O P"° uJ ~ PUD trw~ j
•a7•~d shy u! pape}~u ~ s~umpueppo +poq +~P Pa~fuO' amens cny ~,~ ~ w •r'^°'
'~I " ~f 'Itsv~+WV ~ : 0 f° ~S X4'3 Ott'-PP`d ''+"'Pu°PP° ~ P°~'•'r~v' Pn'P~"• P°K ~~
6u~m,pw. ~ i ~ n,^p"ePPy ~ P°P^~''I tu'°i'yl "° srsm P'R s, ~w ••,r •~{xrw ~~ •o ~~ti• ~~~~ , F~~,
~m soM
sp
P
°
~,
a
,~ra n ~s I ~ ~
w,~
°
o
~
a
"
i°
~
P
v
"
•~,~ °~ ~+ p~ •q P4"°'
~
~
~•
~
y
~~
j7~V
w
..
~~~y
r~
J
y
s
u~
t
~
M
Q M~) C '~{IC~ ~~Ai~W^Y YVW sYws. ~I~ ~ ~ ~" • w -'-T-~ ~
~~
~
T
~ 1
v,V 'Y,MY~.~. YEN]
p Pa~ao u.4~ 1 '+~'PPQ 4p9 P°~'a' P°4 ~N ~s,r"~pu` °'w°°"`:.,dv. s,ipy~yv
~
{~
"' T
sra+a s
'' •p Bu~~u~ 'suiw~d euol~an3 •pt +~N 3'~DP Zak ~°PP+/ PtlD ~t iogwanoN v,vi ..«t~ p~•c,
P°~P l # W"pu°PPY pMwo°~ pay a+adti°,w; wdsad asoy P°'~°'"' P°Y"d° ~,wr, s,P'S
~}°9 'H'•P~'^ *~P'9 s'.~P ,sP~suo~ ne,( sc dlay J~ou, St,oFa>f a+w 6ui+rio~ ayi '~ P!9 ~'°4~
~ L~ ~elaRY'O t ~ u~puappy °BP°1r'°"'!'° s°" PtP •~f "rf 'yay~r,Yy '~ O 'pcrsa, naA }I
'ZZL'pZBS o'°~'°4t s~ tso~ ucxyxysua~ syj ~d'fe""•S ° so
wtiol s~{t s4 'sui "u 'M'H'~Y ~ 'O '~'0? ~ i° uod so "'° ~°9urw'~'m~° apr~u ~' p""
~,no7 oBuo+O tgyt pf °~°'~{ rrorl oxn$ 'i~a?cad sy~ 'off u"c~ P~9 F'a~'°a aye s~ p~°tt~'
~,ad ~
a+:1°~'i~JON '8N-I f°ei0tl0 ~ rsu x~x, m~ ~••i
',~,°~ i+'o~lA1°6 ~'iS Aµmoa ssun,p .sb iCe a Aor, h+s~
8LZ1Z ~ '~ T -'rll~ wlS ti . i N
~P~ 6W,x '3 ~iE ~ INM h~tuy.J
saa^'•S per, ~ 9"'~say~md }o'°ae'!Q ,<; ~R„ ~ M r„
/~ I `dZ ~w~'"O'N sac,of u,nd r,,.a,,,,..~, -rr ~;
uWl4u~~
uOx~(1
Bid Tabulation Form
Orange County Skl11s Development Center
Chapel Hill, North Carolina
20-Nov-97
Contract: Single Prime
Name of Bidder License #
of Bidder Bid
Security Base Bid
Amount Alt. #1
Amount Cony.
Unit Price Acknowledged
add. #1 add. #2
FORCE CONSTRUCTION CO. 32761 X 1 270 989.00 157,100.00 X X
O.C. MiTCHEtt, ,JR. 23371 X 824,222.00 147 ,390.04
PATRIOT BUILDING CO. 29128 X 9Z4 500.00 144,000.00 X X
HE'RESOLUTE BUILDING CO.
T 14397 X 867,400.00
_ 112,300.00 X X
_
RIGGS HARROD BUILDERS 18fi67 X 911,017.00 108,150.00 X X
VAN THOMAS CONTRACTOR 2560 X 930 040.00 115,000.00 X X
C. C. WOODS CONSTRUCTION CO. 1054 X 947 707.00 91,000.00 X X
TROUT &RIGGS CONSTRUCTION CO. 4352 X 898 800.00 93,300.00 X X
Page 1
Rid Tabulation Form
Orange County Skills Developrnent Center
Chapel Hill, North Catalina
2Q-Nov-97
MULTI PRIME
Contract: General
Name of Bidder License #
of Bidder Bld
Security Base Bid
Amount Alt. #1
Amount Conc.
Unit Price Acknowledged
add. #t add. #2
FORCE CONSTRUCTION CO. 32761 X 894,614.00 157,100.00 X X
PATRIOT BUILDING CO. 29128 X 646,500.00 144 000.00 X X
THE RESOLUTE BUILDING CO. 14397 X 566,200.00 112,300.00 X X
ARROU BUILDERS
RIGGS H 18667 X 610,221.00 108,150.00 X X
_
VAN THOMAS CONTRACTOR 2560 X 640 000.00 1 i 5,000.00 X X
C.C. WOODS CONSTRUCTION CO. 1064 X 646,080.00 91,000.00 X X
& R1GG5 CONSTRUCTION CO.
TROUT 4352 X 571,800.00 93,300.00 _ X X
_
0. C. MITCHELL, JR. ~~~ 23371 X 543 051.00 141,390.00
Page 1
_.-, ;~
a
~:
4
M
_,.~ -~
~a
°o
~-.,
~-
~~ ,
~,
~rn
:~
>< v
a: u
o
+~
.~
U
L
d
~-,
c
`a: N
~-~ N
~~~ c
~r
a 0
~,
tsl
C_J Q
~ x
a r
0
a
`y' M
~~
° o
~,~
:~. ~
<-,
,- ~
~~-, N
~ i
~~ >
~,
o
'=; ~
~ e4ed
x X 0(1'005 l 00'562 98 X £Obi~ 5NOS'Q M4~18tIdS
x X 00'0 00'~-76 O l X 8998 '00 ~BW~I~ ~~
x X 04'OOS L 00'016 i t l X t8Z 'OJ ~111V3N'3 9NIa1r611d S83H1089 NMOZ!8
X X 00'OQx 00'QOZ fi l l X 556t 9P119NIfTld 031Y~'»'SS1i
x x 00'009 00'OOi- 9E ~ X 8616 t 9hue-wrid aoHarn+
2~k 'PPS t* ~ppe
p~a~~~r ~!ad llun
~ooa wno~.w
~!r •irr w~uN
pig asRa ~(3~.no~5
pre ~PP18 W
~- ~!~ ~cpp18 to aweN
lgwn~ :~11uO~
wad u-n~
16-~N-OZ
eu!lon~ 4~QN `II!N ~~~
~zua~ 3u8~ sp!~IS ~~~ ~6u~p
~°.# ~YFW~l p!8
Orange County Skills [3svelopmern Center
Chapel Hi!!, North Carolina
20-Nov-97
Bhd 7akwiatio~ dam
MU~Ti PRlM~
Contract: Mechatlkal
e ;_
~.
< .t>
N ~-`
~0
v
[j C
,~ ;>_
X y
0 G
3 c=
$ ,_
0 ~-
a.
3 ~-~
p r
ft
~ f
J ..
D
~,
pfi
A
~ ~:
~0
to
~ Cf
6
.L
1 ~~
L~
A c
v `''
w
Page 1
~~
Bid Tabulation Form
Urange County Skills Development Csrrtar
Chapel Hill North Carolina
zany-~ 7
A~C!<T1 PRIME:
Cattract: Ele~ctricail
Flame of Bidder Lic+ltitse 1!
of Bidder Sid
5eaaity Base Bid
Itrttaunt Alt. ~t
M~vunt Conte
Unit Price Acknowledfled
sdd ~t add. ~2
~dVt:(xJ $4O9-OQU X 160 p0O.O4 K X
gITT1NG ELECTRICAL 4555-U X 1 B6,xs2. X X
O'pELL ELECTRIC CO. 39Z~'-U X ~ 03 OTO.0O X X
4~EMpfR(~tAp}i ELECTRIC 76491-11 X 133 +165.00 ~ X X
PIIVESr~T~ i;L~cr>~ICAL ooFm~crolls z~ s~ s-u X ~ av .OO 1 zoo.oo x x
WA75ON ELECTRICAL iX]NS'TRIJCTiaN CU. 213-11 X 165,500.00 X X
~9e 1
~:
7 '`'
o
< «,
A
uo
~ ~
r
n
A
x
Q
a
N
CJ
0
r
z
0
~- J
K;
r
;~
~~
D
n
T
~.
Ao .~,
I, b
~<
W
M1 ~~
/V •C.G
W .~`
1 .n
ui
C=~
c~
V ~~
D)
~-v
O
~~
EXHIBIT B
Ncxt~x Bwl, L.L1
A I~L~ L1ADit.itY PAR'1'NERSt tip
Arr~o~YS .4z' LaW
t00 E 0~
StatE 560
Ct~n~t-a. Huai NoQ'rtt G-Rrn.nv~, ZTS i 4
J. 1'YLlA~R4lF..IfC
4AMDILROAa<^
a+~absxh~a~wr
o~sa Fcc~a
~s~srwFaic
~Y. C~PfiDt1
J~(1Y~1~7R Z I, i ~7
~. ~J~Jiii~ i.i~
~~tt
[7~~ i~1~A W L~1 ~ ~~7~
~>i
Re: Ob9octiott too Bids. Skill! I?evtlopmua Center, C~apd lii~, NC
Deaf ~'. Lir>h:
wui,ro,~o~
Cl+~P0.1i1. MC 1'1'i~6170~
~a~+~ana•ea.~w~
ua.~ca+~.c~os
6~I~: PARI~LW~
'~Ifr rtpees~arn the Reno Buildegg Ca. C`Rcaod,t~. vrhisb sub~tttod bids ba-tb~ as a single Pane
caenract~r sad m a a~-pti~ne for t~ the prajcct rcferr~ced abavc, vv~ir~ bids wow
dated rlo~vrmher 20, 1997 and wtwch vreit is striRx camplianoe ~ aFi tim cegetuemeats of the bid
process a b?` County. A~ iQ tt~c bid tsb~i~nt form pnpercd by
Ot~rtge Cottat~t rasped m this pcojdcx, Resohae wras the second bidder in each
ute~r, is es~ch ca:c bang secxmd only to the bids ~ by Q.C. ~+S'ttchdl, Jr-, Tnc.
C`am'").
As the coa~esioa t~€tbe pructse, lteadute had as oPQortuoity too nwiew the bide
br M~dl, smd 5ks this ab9ectiao ~ sect bo ~ s~ bid ats the follawitag bases:
1. Tlse bids aabtnitted by Mitchdt in each r,~pacity failed to i'ni oc imch~e either Addatdtun
Na. t, dated 10, ]991, or Adder IVs. 2 daxod Novanbet 14, 1997. Each
pft>lese addaftia strn that ~Y iarlucle revisio+u to the c~trasrt documcats, and as stxh
s~ bt ~ pall of tied itt+t~d is the coatsad. Furtitec, s}f ilia tsddwdtt -
rogttirs the the bidder ac,>mawledga reOEipt of the t~ddieaduai by iackt~og its member and
date on the bid farm. Ttss is a substantial $ad ~i~ttl re~iremrnt of the bed pt~s, a
requu~amdri 9vbich wta met with r+cspcc~ to each bid anbsn~ted by Res+otuie~ but a
rec~neme~t w+htich Mitchrll tamed to meet with tespax tiv arch of its bids.
2. The NaQice ~ $iddes-s abo specifially raqui-'ed that " if tc eao~r~pdar is b'~dding both zis a
pci~ ear a~ a: a prime tiroatra~etAr in the separatt prn+se cat~Y. he
MUST submit the bids oa st~srate Sams and IN SEPARATE F~VVELOPES. Biddrxs
Mr_ Jaha I.i:dc
November 21, . _ ~1
page 2
must Cleeriy indicate oa the outside o!`the bad envelope which. contras) they are
bang." (motion as in the ariginaE}. 'I'ktese e~ness pcovisioizs of the lYoticc to
Bsriders were cn~et by Rootut~ but 14litcleell failod io comply with respect to its bids.
Resolute considers these requanon>e~s ba be materH! sad a part of thG stateetoty bid grocesa,
roquiriug Orange C.aunty W diar~ard flee bids wbtmtted by M~eJI. The fast itean trf Hoer
nae noted shove u deat~r uirical to the bid pnoeest, ss a bid subm-tt$ci ao so iaoompiebe
os ianOC~erge act of oootract doaemems can Hat be vo~aucd to a proper bid, as the woiic
de~od be each is rsot the same. Tba s+axmd item of seen-caa~lis°ce is also impottaat to tha
in~e~rity t~ the bid ps+ooess, sad was in the Notice to B'eddesa. Wt bring these mauexs
to rout a#txttian, in the hope tbet the Miteledl bid will uo~t b~ amwncc+d publicly sa the low bid,
only to be set s:e~ 3atar snd t>tereby cnsta tu~svot~abk relation fnr the pettics in~olv+ed. PteaSe
kt me Ima~r bow yon immd to procad.
Sinoady,
NOAIY~N BLUE, L.L,P.
lobo A Nottb~
JAN1mmb
F.aclosoc+e
cc: Caeo~C'3edbc'll
Dixan W~a ~ PA
The Ra~ohete Buildag Cony
TOTAL P.C~;
EXHIBIT C
JOHN E. BUGO
EDWARD N. POLLARD
JAY M. WILECERSON
WILLIAM J. WOLF
R. ROY MITCHELL, JR.
OF COUA'SEL
Mr. Geoffrey E. Gledhill
Coleman, Gledhill & Hargrave
Post Office Drawer 1529
Hillsborough, NC 27278
Dear Geoff:
BUGG & WOLF, P. A.
ATTORNEYS AT LAW
CUITE 170, UNIVERSITY OFFICE PARE{
411 ANDREWS ROAD
DURHAM, NORTH CAROLINA 27705
December 15, 1997
. ~ ~:
. ,:~7,
PosT OFFICE Box 2917
DUHHAM, NORTR CAROLINA 2771$
-rELEPH ONE X919) 383.9431
-rELECOPIER i919) 383-9771
Via Facsimile & U.S. Mail
Re: Orange County Skills Development Center,
Chapel Hill, N.C. -Resolute Building Company's
Bid Protest
Resolute Building Company ("Resolute") requested that I, too, review this matter and afford
them a "second opinion" regarding the substantive merits of their bid protest. After having reviewed
the material documents including John Northen's letter of November 21, 1997 and your response of
December 5, 1997, I respectfully offer the following comments for your further consideration:
1. Proposals that do not meet the material requirements of the solicitation -that is,
nonres onsive proposals - must be rejected. This is necessary and appropriate, of course, to preserve
the integrity of the competitive bidding process. I believe we would all agree that both addenda were
material requirements of the solicitation and would be expected to have had considerable influence
on every bidders' pricing.
2. A usually safe and reliable standazd to apply in determining whether a nonconforming
or irregulaz bid is truly nonresponsive is whether or not the public owner could be legally justified in
awarding the contract to the low bidder who submitted an irregular bid even though the 1cL bidder
were to decide after bid opening that he did not want such an award.
As applicable to the case at hand, that would be to ask: If O.C. Mitchell had requested
that its bid n~.l be considered for an award after the bid opening and after it had become privy to all
other bidders' pricing, then could the County have nevertheless been legally justified in ignoring O.C.
Mitchell's request and forcing him to accept an award under such given circumstances or else forfeit
his bid bond?
If the County could not legally impose such an award under those given
circumstances, then O.C. Mitchell's low bid must be rejected as nonresponsive. Otherwise, O.C.
Mitchell would clearly have enjoyed a distinct competitive advantage over all the other conforming
bidders because he would have, in effect, been allowed to submit what, in effect, should be considered
as an "optional bid."
Mr. Geoffrey E. Gledhill
Page 2
December 15, 1997
3. As applicable to the case at hand, if O.C. Mitchell had decided that he was not
comfortable with his pricing relative to that of the other bidders following the bid opening and did
not want an award of the contract, the County clearly could not have legally forced him to accept
such an award because his bid ~n i e face indicated that he had not received the addenda for
consideration. Therefore, under these given circumstances, the County clearly could not have f rced
an award upon O.C. Mitchell or else a forfeiture of his bid bond.
4. The fact that O.C. Mitchell might have used a revised bid form that came in the first
addendum is clearly no evidence or acknowledgement that he received the second addenda.
Moreover, this would not even have constituted acknowledgement by him that he had received the
first addendum -either de facto or otherwise. Rather, this use of the revised bid form at best could
only be considered as some extrinsic evidence that he might have received the first addenda. On the
other hand, however, he could have gotten a copy of the revised bid form from another bidder or
elsewhere without ever having requested or received the accompanying addenda itself.
Likewise, the fact that the County's architect questioned the bidders either as a group
or even individually before bid opening regarding their receipt of the addenda in no way legally
obliged the bidders to respond one way or the other. Nor would their responses have been legally
binding.
Even the fact that O.C. Mitchell confirmed after bid opening that he had received the
addenda and the changes were included in his bid should be considered meaningless since he was then
privy to all other bidders' pricing. To afford this ex post facto confirmation any consideration would
be the same as allowing him to disclaim this after bid opening and thereby avoid an award because
he had not received the addenda even though his bid indicated otherwise.
The point is that true responsiveness has to be determined from comparing the bid to
the requirements of the solicitation -not from equivocal evidence extrinsic to both.
Of course, had the solicitation for proposals otherwise provided that these as well as
other factors could be considered after bid opening in connection with an award, then that would be
a horse of a different color. But, all the bidders would have then been able to know that they would
enjoy the same benefits in these respects, and they would have submitted their bids accordingly.
Now, if that had indeed been the case, wouldn't that have been a mess??
5. Said otherwise, if you could not have forced O.C. Mitchell to have accepted an award
of the contract over his objections in light of what you have otherwise considered to have been
"minor irregularities" in his bid, then his bid mus be rejected as being nonresponsive. And, there
should exist little or no doubt in the case at hand that O.C. Mitchell could have easily avoided a legal
award of the contract had he decided to do so for whatever reason after bid opening.
6. It is certainly understandable that the County would want to award the contract to
O.C. Mitchell and ostensibly save the taxpayers a few thousand dollars -depending on how the award
might be made. Nevertheless, that would appear to be a relatively small price to pay in the long run
in order to preserve the integrity of the County's competitive bidding process.
Mr. Geoffrey E. Gledhill
Page 3
December I5, 1997
In closing, A. Fleming Bell, II at the Institute of Government is the leading authority for public
bodies regarding issues such as these. He has even authored a very informative publication by the
Institute entitled "Construction Contracts with North Carolina Local Governments." While the
particular issue at hand is not directly addressed in his publication, his informal opinion would be
quite persuasive. If you have not already consulted with him, I would respectfully suggest it might
be quite helpful in resolving this matter one way or the other if you were to share John Northen's,
yours, and my letters with him.
Thank you for your considerations. With kindest regards, I am
Yours very truly,
W'
John E. Bu~Q
~~
JEB/p
cc: Resolute Building Company
John A. Northen, Esq.
H:1WPUtESULUTE\GLEDHILL.LTR
EXHIBIT D
V.C. MITCHELL ~R., INC.
~E~ERA~ ~o~raA~.oas
CONSTRUCTION CLEANING PAINTING
141 1 South Miami Boulevard • Durham. North Carolina 27703
919-596-2868 • Fax 919-596-9384
12/09/97
Mr. Joe Paradis
Dixon Weinstein Architects
431 W. Franklin Street
Chapel Hill, NC 27516
RE: Orange County Skills Development Center
Dear Mr. Paradis,
Attached you will find our original FAX cover sheets for Addenda #1, #2. We also received the hard
copy of this information prior to bid date. Our acknowledgment of this on bid documents was purely
error. (Note: Our bid was included on the new form from Add. #1).
It is our understanding a contract may be written as late as January 20, 1998. This does not cause a
problem with our operations. We would like to be your contractor of choice.
Please advise of any further information we can provide at this time.
Sincerely,
O. Grafton Mitchell, III
President
Nov-10-97 O1:33P Oixon Weinstein Architect 919-968-0473 P.O1
1Oj 6[>Q•B96'6l6 ECCB'896~6 t 6 9! SLL J N "I!!H (adoy] i.oys u~(~vo,~ •M (S7 p,ck,no~ ayl SL
•~uocawo~ so saonsanb duc c{3in~ lea ~~
•sRd q : (pastnu) jesutiu~ ~o ~uso~ - SO£ nottoas
•sSd z ~[ 7Q 12i 'ntotsiA71 ~IIIMflJQ
•s3~ ~ [~ ~PaaPPb'
•sSd q siapPj9 301sjZ
.s~ I ~~~ ianaJ
:sojmput zuJ s~
•sn-ojjo; ~alw' ~uouadulanaQ aZigS ~ClunR' a4atuO aV11o l#f ~~aPPV
stprssd x~ j :u~o, j
:~wuo j o~
soi ddo' pJON
qua' luautciujanaQ stl~S +ilano~ o8tttitp :t>aro~d
ocpntsjjtH :.(uoduro'
:oN ~
(is!1 pagae3~a aas) uappjg ~!
{ry- 6u-pnpu,)
ql :sa6od/° •oN
L6lUlill
- ~o+oQ
u~aiswaM
uox!Q
Nov-14-97 10:19A Oixon Weinstein Hrcnlt2cL yly-yoe~-v~ai~
/ Uison
Weinstein
Do+e: 11/14/97
No. d Poges: 13
(including this)
Ta Bidders
fax Nay
Componr
Project Skill Developmcnt Ccntcr, Orange County
Hord Copt Yes
To FoAo+r:
Fiore: Joe Paradis
Addendum Z attached
Fax
Please Note: This is the last addendum to be issued before bids tt:r taken nn November 24, 1997.
t:upies tu: Trout ~ Riggs. Riggs - Hatzod $uildt;rs. O. C. Mitchel!. I=orcr Catutruction Company,
Van 'Ihotaas Contnwtur. Inc.. Carolina Air Cunditining Co., Aacco, iota.. Pine State
Elxuical Contractors, Iac.. Materials Informstioa Sysums, Bitting Electric. Inc..
~Flauon Elci;trical, Thomersoa Electric. Inc.. Resolute. ?Bia. loc.. Dept. of Iasttrance,
Patriot Building, loc., Pendsrgraph Electric Inc., Srown Brothers. O'Dc11 Electric
Com~ny, Iac.. C. C. Woods Construction Co.. DS1riC0 Inc., Anctwr Plumbing, Inc..
Hamlin RuoCnK, Sparrow Plumbing, ~c Comfort Engineers
r.v~
25 The Ccvr+yord d31 W. FronJ<tin Sheel Chope! HiJ~ N.C. 2T5i6 9+9.968.8331 919.968.047) Fat
Jan-08-98 01:29P Dixon Weinstein Architect 919-968-0473 P.02
I
i
e
'7 O
.~'~S
-~ ca ~ pas ~d ~oass+b ~ aesg .oc~
~omrJ ado sao~ .c~oJ slae~p o~ Ys
~~ tio!s ~ ~ fl!4 [.6bi 'OZ ~9~+Qt~i ~o ~ t~ t~ ~ Z~ P~ 11 <<~'+PPY
m pvp~i s~soas 11~ ~R ~ ~~ ~ ~ Qt ~i 1.66t '6 mo av da ~q}oj~ ~ ,tS
! ~d ~I~Q
~JsfL4S~~0 ~
! ~!P~d "f'~I~f ~'
9ZS1~ ~I'[1B ~
~S. ~3 'M 1 C~
I P~'J a4i ~L
val~v ~-+~- Qa~
' ~i ~ ~t
X83`6-965-8 t b ~d • 8'82-985-b t 6
>,oLL2 p-~.to-~~ 47.~N 'wet~lflq • p~engrx>g !u~efYll ~~ t t art
~NCUV(Vd ~fYl!\11or37> • NO ~
S2fO1J`db1NOJ 'Id 3N3'~
!
~ ° vsFe 96S his -~i 'err •~~3E-~~llw ap r~o2s~
wev0°Z 8661-se-t
..ran-ucs-~+a ~.._-._.-. ...,,.... .._ .-._ __
Orspon
V14trusdn
ArlA lrrer~. /•
hole: Jorwery 8, 1'948
No. aF Pgg-„s 1
{~,dn,d~s ~
Ta Pant J~atetc
fcac Na
~~
Hard Co¢y
Ta fd{ovr.
Frpm:
919, b44.30~ }
a~ cosy
Chor~lpe sl~~ttx~~~t Center
t
(~ Dixon
1
we fiave renewed addeeaum 3# } and #2 to e~iRrwtia coats essoci wflh dwngsa noted. Tha
costs takd below ere our best guess estimate, 1Ne hors added lproiit and overhead b the
esfn>oAes.
kddandvsett ~ ] is prttnorlly oorrcerned wAh dari(ioe6oR we esinrdd that -pis cisoccled w~ ~
noted c~,aegss are ~ Haan j1000. Wo hors cow+ted tk~e 30 ~ extCnxon d contras Forme as
o warsft. h could be seem as sfl'~n9 ~ ~n8 n'~Y'~n ~ vE tl'ae Cotiradot. We had
substonba) opinion ao~retced rF+ot 18Q drys rhos nvi odegwb.
addendom ~Z is Qs6itrwted as vd~ 58000. j3750 in achit~al tdems, ;420 in ~S
EnSiAbe/:.y i l~~ t
I hope this ir+Fortrottcn will be hetptui. Pease let rrte know if you need adddforol tryform4tipR,
f have not mobt~Zed the Caere for lfre Jvntroty 20 rneefng. Ptaose br me know ~ you will
hondie that or here akeody done sa. :r
r
'i
ZS tb. Cewtyard ar w. 5ttee~ a~ ~ tic 2sstb 979.68.8333 4rP.t~6?a73 ~
Post-tt` Faz Piote 7671 ~a+n ~~`j ~~$ ~oagas-
TOTS P.Dl
EXHIBIT E
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION
129 E. TRYON STREET
P. O. DRAWER 1529
HILLSBOROUGH, NORTH CAROLINA 27278
919.732.2196
FAX 919-732.7997
December 5, 1997
FROM THE DESK OF
GEOFFREY E. GLEDHILL
VIA FACSIMILE AND II.S. MAIL
John A. Northen, Esquire
Northen Blue, L.L.P.
Post Office Box 2208
Chapel Hill, North Carolina 27515-2208
RE: Orange County Skills Development Center, Chapel Hill,
North Carolina - Resolute Building Company Objection to
Bids
Dear John:
I have reviewed your November 21, 1997 letter and the
information provided to me by Orange County officials involved in
the bidding` of the Skills Development Center renovation project,
including the Notice to Bidders and the November 14 and November
10, 1997 addenda documents. My conclusion following that review
is that neither of the bases for Resolute's objection to the bids
of O.C. Mitchell, Jr., Inc. warrants disqualification of the O.C.
Mitchell bids, the single-prime of which is the apparent low bid
for this project. -~
Your November 21, 1997 letter first contends that the O.C.
Mitchell bids should be disqualified because the. addendum
documents (numbered 1 and 2), prepared by the project architects
after the original project specifications were prepared, call for
the contractors to acknowledge receipt of the addendum by
including its number and date on the bid form. O.C. Mitchell's
bid form did not include this acknowledgment. However, O.C.
Mitchell's bids were submitted on the bid form that was part of
Addendum number 1 (revised from the bid form with the original
project bidding documents to include a request for unit costs for
concrete floor replacement per cubic yard), clearly an
acknowledgment that O.C. Mitchell had received the first
addendum.
Furthermore, during the bid opening process and before the
bid opening, the County's architect questioned the bidders
present about their having received Addenda numbers 1 and 2.
John A. Northen, Esquire
Page 2
December 5, 1997
O.C. Mitchell was represented at the bid opening. No bidder
stated or in any other way indicated that they had not received
both Addenda numbers 1 and 2. Mr. Chris Sparks, the president of
O.C. Mitchell, Jr., has since provided confirmation to Orange
County that O.C. Mitchell received both addenda before it
submitted its bids and that the changes to the project described
in the addenda are included in its bids.
The obvious purpose of the requirement contained in each of
Addenda number 1 and number 2 that their receipt be acknowledged
on the bid form is to ensure Orange County that the bids
submitted include the requirements contained in the addenda.
This has been more than assured in this bidding process and
thereafter. Considering all of the facts and circumstances
surrounding the bidding of this project, O:C. Mitchell's-omission
of the addenda acknowledgment on the bid forms, although
technically not in compliance with the instructions to bidders,
does not justify disqualifying O.C. Mitchell's bids.
Resolute also contends that O.C. Mitchell's bids should be
disqualified because O.C. Mitchell submitted its bids in one
envelope marked Single Prime and that the same bid form was used
by O.C_. Mitchell for its multi-prime general bid and its single-
prime combi"n`ed bid. Orange County was fortunate to receive eight
single-prime bids for this project. It also received one
complete "set" of multi-prime bids (there was only one bid-for
mechanical contract work). The sole purpose of requiring multi-
prime and single-prime bids to be submitted separately and in
separate envelopes is to ensure that the minimum number of bids
necessary for (1) a bid opening and (2) a bid award have been
received. Since there were more than three single-prime bids
received and in envelopes marked single-prime, the minimum bid --
requirements were met. Further, the requirement to open the
multi-prime bids (the law expressly prohibits opening a-ny multi-
prime bid unless there is at least one full "set" of multi-prime_
bids) was also met in that there was a complete set of multi-
prime bids submitted in envelopes marked multi-prime.
Considering all of the facts and circumstances surrounding the
bidding of this project, O.C. Mitchell's-submitting its single-
prime and multi-prime general bids on one bid form and in one
envelope marked Single Prime, although technically not in
compliance with the instructions to bidders, does not justify the
disqualification of the O.C. Mitchell bids.
It is my opinion that Orange County cannot disqualify the
O.C. Mitchell bids. The questions you raise on behalf of
Resolute are ones that I think point out minor irregularities in
John A. Northen, Esquire
Page 3
December 5, 1997
the bidding process. Neither are "substantial" or "material" as
contended in your November 21, 1997 letter. Considering all the
facts and circumstances surrounding this bidding process, I don't
see how either of the two issues raised by you on behalf of
Resolute gave O.C. Mitchell an advantage or benefit or prejudiced
Resolute in the bidding process.
Very truly yours,
COLEMAN, GLEDHILL & HARGR.AVE, P.C.
ledhill
GEG/lsg / .
xc: Pam Jones
John M. Link, Jr.
Dixon Weinstein Architects, P.
lsg-11
northen.ltr
EXHIBIT F
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION
129 E. TRYON STREET
P. O. DRAWER 1529
HILLSBOROUGH, NORTH CAROLINA 27278
919-732.2196
FAX 919.732.7997
January 13, 1998
John E. Bugg, Esquire
Bugg & Wolf, P.A.
Post Office Box 2917
Durham, North Carolina 27715.
FROM 7HE DESK OF
GEOFFREY E. GLEDHILL
RE: Orange County Skills Development Center, Chapel Hill,
North Carolina - Resolute Building Company Objection to
Bids
Dear John:
Thank you for your December 15, 1997 letter adding your
opinion to that of John Northen's to the effect that Orange
County is required under the law to reject the bid of O.C.
Mitchell, Jr., Inc. for the construction project Orange County
plans for its Skills Development Center. I have reviewed the
reasoning for your opinion. I respectfully disagree with your
conclusion.
As you know, North Carolina law establishes a process for a
bidder to withdraw a bid. If the bidder satisfies the statutory
standard for withdrawal, the bid may be withdrawn and without the
bidder forfeiting the bid security. That standard is as follows:
[I~f the price bid was based upon mistake, which
constituted a substantial error, provided the bid was
submitted in good faith, and the bidder submits
credible evidence that the mistake was clerical in
nature as opposed to a judgment error, and was actually
due to an unintentional and substantial arithmetic
error or an unintentional omission of a substantial
quantity of work, labor, material or services made
directly in the compilation of the bid, which
unintentional arithmetic error or unintentional
omission can be clearly shown by objective evidence
drawn from inspection of the original work papers,
documents or materials used in'the preparation of the
bid sought to be withdrawn.
John E. Bugg, Esquire
Page 2
January 13, 1998
N.C. Gen. Stat. § 143-129.1. The facts and circumstances
surrounding the O.C. Mitchell bid would not entitle O.C. Mitchell
to withdraw its bid on this project. The error in question, the
failure by O.C. Mitchell to indicate its receipt of addenda on
its bid document, was technical. The mistake was not a
"substantial error" and, O.C. Mitchell could not have submitted
credible evidence that it had not received the addenda in
question.
Orange County has received documentation from O.C. Mitchell
demonstrating that it had received both addenda before it
submitted its bid and that it included the addenda in its
pricing. Furthermore, Orange ,County has received information
from its project architect indicating that the two addenda
combined were worth approximately $9,000 in the pricing. Even if
O.C. Mitchell had not received the addenda, there is a serious
question in my mind as to whether O.C. Mitchell could have
withdrawn its bid without forfeiting its bid deposit. However,
since Orange County has more than credible evidence that O.C.
Mitchell did receive the addenda prior to the bid opening and
that they were included in the O.C. Mitchell pricing, there is no
basis for O.C. Mitchell to withdraw its bid under North Carolina
General Statutes § 143-129.1.
I have also reviewed case law discussing common law equity
principles in cases involving public bidding laws. It is my
conclusion that O.C. Mitchell would have no equitable basis to
withdraw its bid under the facts and circumstances surrounding
the bidding of this project. Since it received the addenda and
since it used the addenda in its pricing and since the amount in
question is considerably less than substantial (approximately 10
of the total O.C. Mitchell single-prime bid?, there seems to me
little doubt that O.C. Mitchell would not be permitted by a
court, on equitable grounds, to withdraw its bid. Since the O.C.
Mitchell bid is not, as you've characterized it an "optional
bid," but one that binds O.C. Mitchell to perform or lose its bid
bond, the O.C. Mitchell bid cannot be disqualified by Orange
County.
I have also considered your contention that Orange County
cannot consider what actually happened in making the decision to
disqualify or not O.C. Mitchell. That is, you contend that the
County cannot receive information after the fact about whether
the addenda were received and whether they were included in the
pricing. I do not find this contention persuasive. Both North
Carolina General Statutes § 143-129.1 and the court decisions all
demonstrate to me that consideration of all of the facts leading
to the bidding question are not only relevant but material to
John E. Bugg, Esquire
Page 3
January 13, 1998
making the correct decision on withdrawal or disqualification.
This idea is captured well in the North Carolina withdrawal
scat-ute in its requirement that the basis for withdrawal be
"clearly shown by objective evidence drawn from inspection of the
original work papers, documents or materials used in the
preparation of the bid sought to be withdrawn."
Finally, the integrity of the County's competitive bidding
process will not, in my opinion, be put at risk by the County's
awarding a contract to O.C. Mitchell, Jr., Inc. Conversely,
disqualifying the O.C. Mitchell bid would have that effect.
Since the O.C. Mitchell bid cannot be disqualified, the County's
option is not to award-this contract to the next low bidder, at a
cost of approximately $27,000 more than the O.C. Mitchell single-
prime bid, but to reject all bids and rebid the project
altogether. Doing so under these circumstances will, in my
opinion, do more damage to the integrity of Orange County's
competitive bidding process and perhaps at an even greater cost.
Thank you again for your interest in this matter and your
views about the bidding for this project. With best personal
regards.
Very truly yours,
COLEMAN~JGLEDHILL & HARGRAVE, P.C.
ill
GEG/lsg ,/
xc: Pam Jones ~/
John M. Link, Jr.
Dixon Weinstein Architects, P.A.
lsg-11
bugg.ltr