Tuesday, November 21, 2017
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Minutes

Design Build
Board of Director's Meeting
December 20, 2007


Members Present:       
Marc Monteleone, Chairman
 
Roy Smith
 
Rodney W. Clay
 
Tom Winter
 
Ron Spradling
 
H. Wood "Woody" Thrasher
 
Glendon "Bud" Sprouse
Dept. of Administration:
Donna L. Lipscomb, Executive Coordinator
 
 
Others Present:
Lloyd W. Miller, AIA - Visions Architects
 
Amy Clendenin, WV Association of Architects & Engineers
 
Mike Clowser, Contractors Association of West Virginia
 
Robert Krause, General Services Division
 
Scott Mason, General Services Division
 
G. Richard Lane, Petroplus & Assocation via phone
 
Terry Hough, City of Morgantown via phone
Members Absent:       
Mary Jo Klempa

The meeting was called to order by Chairman Monteleone.  A silent roll call was taken and it was determined that a quorum was present.

Approval of Minutes:

Mr. Smith moved for approval of the minutes of the December 6, 2007, meeting with a proposed amendment to change the name of the company on page three from MGM to MCS.  The motion was seconded by Woody Thrasher.  All voted in favor and the minutes were approved as amended.

Mr. Lane of Petroplus & Associates and Terry Hough with the City of Morgantown were included in the meeting via telephone conference. 

New Business:

«                 City of Morgantown Event Center

Chairman Monteleone requested Lloyd Miller to come forward and advise the board as to the City of Morgantown’s request for changes to the Morgantown Event Center.  Chairman Monteleone also turned the meeting over to Roy Smith for this portion of the meeting as he Chaired the last meeting in his absence.  Chairman Monteleone directed the members to the information included in the packet by Ms. Lipscomb. The information includes a series of e-mails and information to take into account and to show what has happened since the last meeting. There is also a copy of the Design-Build Procurement Act and the Legislative Rules currently in effect. 

Mr. Smith advised Mr. Miller that the Board went through the Morgantown Event Center Project at the last board meeting and discussed it extensively. There were some issues that arose out of the technical proposals that were submitted and there was a request to change some things for the two contractors.  Mr. Smith requested Mr. Miller to update the board on the project.  

Mr. Miller advised the board that following the board meeting of December 6, 2007, and his presentation before the board wherein he requested authority to proceed with the cost proposal openings, there was some discussion among the owner’s representatives on Friday that they had some issues with the proposals presented.  He advised that some of those issues were brought up in the technical review process.  The owner’s felt that they needed clarification to the issues prior to opening the cost scores.  Mr. Miller stated a lot of time was spent reviewing the proposals, about six hours. The individuals on the review committee were new to the design-build process.  They wanted to be sure they were representing their client’s interest as well as they could.  The members took some time to digest the process and decided they needed clarification to the proposals prior to the cost opening.   Mr. Miller had the cost opening scheduled for January 11th but instead of opening the costs there was a discussion on the concerns they had.  At that time it was agreed by all parties present to address those concerns in the form of additional information submitted by the proposers for review prior to opening up the cost proposals.  Mr. Miller advised that they went over the information needed with each one of the design-build teams individually, specific to their proposal. It was requested when interviewing the design-build teams to look at the qualitative scores again and adjust them based upon the additional information.    Following those discussions the technical review committee reconvened and talked about the procedures and how they would handle the acceptance of the information. The committee set up a list of procedures and criteria that they would request of the design-build teams in their submittal.  This was delivered to the design-build teams.  The design-build teams would also have the opportunity to make any adjustments to their cost proposals if the additional information changed those costs.

Mr. Miller stated that the day after that meeting he contacted Ms. Lipscomb to inform her of what was happening so the board would be aware of how the committee was proceeding with the request for additional information.  Ms. Lipscomb advised Mr. Miller that the board had requested that they refrain from opening any additional information that had been requested.  Mr. Miller stated that the additional information was received by the owners but has not been opened or distributed to anyone.  The additional information is in the possession of Terry Hough at the City of Morgantown.

Mr. Miller advised that the committee was trying to maintain the integrity and fairness and competitive process but also gain additional information. Although he did start the ball rolling on the change in process they seek the input of the board prior to implementation of the process change.  Mr. Miller advised the board that the original cost proposals have not been opened. Currently the only thing that has been evaluated is the original qualitative proposals. Mr. Miller requested authority from the Board to proceed with the process changes.

Mr. Smith asked if any of the board members had any questions or comments.  Mr. Smith  stated that during the last meeting, and the minutes reflect it, that Mr. Miller stated that the two proposals met all the criteria and were acceptable. Mr. Smith stated that Mr. Mason, the Department of Administration’s representative, also talked about the differences in the two proposals and agreed that all the criteria were met.  Mr. Miller agreed and stated that the technical review committee did go ahead and score the proposals even though they had some questions and those were discussed during the review.  However, the day afterward they thought about it and had some reservations.  Mr. Thrasher asked Mr. Miller if they had reservations about the qualifications.  Mr. Miller said the reservations were not about the qualifications but the solutions that were presented.  Mr. Miller advised the members that both proposals met the requirements with some exceptions and they were noted in the scoring process.  The owners communicated to Mr. Miller that they would like see if there could be some adjustments to address particular issues. 

Mr. Smith referred to the law at §5-22A-11 it states under item (g) that proposals may not be amended during the review process.  Mr. Miller feels that this means the design-build teams themselves after the proposals have been submitted can not come and make changes.  Mr. Smith stated that if you compare this to a design-bid-build-process you never see a contractor say to the proposer that they like what they did so far but we would like to amend here and there and resubmit a price.  Mr. Smith believes that the statute says you can not amend a proposal  because that is what the law says.  Mr. Smith further advised that they were asking for a new price based upon some pretty extensive changes in their proposal.  Mr. Miller agreed.  Mr. Smith stated that during the last meeting Mr. Miller stated that one of the contractors had inadvertently  put their price in the technical proposal.  Mr. Miller stated that was correct but the cost proposals had not been opened.  Mr. Smith questioned whether either cost proposal had been opened.  Mr. Miller advised the board that neither cost proposal has been opened. 

Mr. Thrasher questioned Mr. Miller as to whether they sent out a proposal and scored the responses to the proposals and then decided to change the project in some fashion?  Mr.  Miller  stated that the owners did want to change it after they had scored the proposals.  Mr. Thrasher asked Mr. Miller to summarize the nature of those changes.  Mr. Miller referred the board to the materials provided by Ms. Lipscomb which outlines the requested changes on each proposal.  Mr. Miller went through each of those with the Board. Mr. Miller stated that the changes were done so that the proposals were more in compliance with the desires of the owner.  He seeks approval for the board to allow them to proceed with the revised process. 

Mr. Clay questioned Mr. Miller as to whether he would consider both proposals as fully responsive. Mr. Miller stated that as submitted they would not but the scoring reflects that. The scoring was done based upon the responses and if not fully responsive, they did not get as good a score.  They did take that into consideration when doing the scoring.  Chairman Monteleone stated that bidders are allowed to seek clarification but in this case the owner sought clarification and made changes to the project after the scoring.  Mr. Miller stated that there were items that were not included in the RFP but they wanted those items address also.  Mr. Miller stated that those items are on the list in the handouts as “other items”.  Paragraph A are items where bidders were deficient on what was in the RFP and Paragraph B are items that were not included in the RFP. Chairman Monteleone stated that if the other items were to be included that were not in the RFP then they should be identical for both bidders and they are not the same.  Mr. Miller stated that one of the proposals may have already had it included and that is why it did not show up on their list.  Each proposal was significantly different from the other as it came with a different approach to a problem. Chairman Monteleone advised that this is what design-build is all about.  You don’t get all apples, you get an apple, banana and an orange and you decide which one you want.   Chairman Monteleone indicated that it appears that if they saw things in one proposal they liked then they want the other proposal to comment on it.  Mr. Miller agreed that the RFP did not include some of the things they want additional information on now. He stated that all the items were requested to provide the owner with a better product. 

Chairman Monteleone stated that the procedure as he understands it is that they sent out a proposal, they received responses and reviewed and scored them, they thought they needed changes so they sent them back out, and the second responses have been received but have not been opened.  Mr. Miller confirmed that the second responses have not been opened.  They are now seeking approval from the board to proceed.   Mr. Thrasher asked Mr. Miller “if he took on the responsibility of seeing to it that every deficiency is addressed when they sent out the questionnaires?” “ Does that concern you that it was construed by the design-build team as his complete thorough review of their submission.”  Mr. Miller stated that this was not the intent and does not encompass everything as other items will come up that need changed.  Mr. Thrasher asked what incentive the proposer has to make sure they are thorough if the owner is going to go through and change it and get additional information on their deficiencies. Mr. Miller advised that he is trying to get the best product they can out of the project.

Mr. Clay stated that the law at §5-22A-11 has quidelines that the board can not deviate from. One of those is that the technical submission and cost submission must be sent in two separately sealed envelopes.  Mr. Miller advised that this was discussed at the last meeting.  One of the costs was disclosed in one of the proposals but he pulled that out and it was not information that was before the technical review committee when they were doing their qualitative review and the scoring.  This was pointed out at the last board meeting and discussed.  Mr. Smith wanted to clarify that the board did not vote for or against that specific issue even though it was discussed. 

Mr. Smith stated that what happened in step two, when additional information and clarification was sought, was not done at the correct time and the scoring of the two submissions reflects any deficiency in one or the other proposal. This is something that could go on forever  and they could continue to ask for additional items.  Mr. Smith stated that those actions are not appropriate and any requested changes should be addressed after a winner is decided.  Mr. Smith stated that one condition for approving a design-build project is the need to work together to resolve issues after a design-build team is chosen. Mr. Smith further states that the items on the list are not something that can’t be worked out and he can not imagine an engineer or architect failing to meed standards. Mr. Smith indicated that the items they are asking for on list A are extensive but not on B and it is pretty radical. These are issues that are not a part of this proposal and they are changing the design of the project.

Mr. Clay pointed out to the board member that section 11 of the code states that no amendments can be made after the process starts.  He also states that section 12 says you must certify A and B meet criteria.  Mr. Miller previously certified to the board that A and B met the criteria.  Mr. Thrasher questioned if they not only requested additional information but new costs.  Mr. Miller stated they did ask for new costs as the changes affected the price.  Mr. Miller and the City’s representative assured the board that the new proposals contain separate envelopes for the technical and costs and neither have been opened.  The board reviewed the previous scores and discussed the process. 

The board questioned Mr. Mason and Mr. Krause as they have both been involved in the Morgantown project.  Ms. Lipscomb advised the board that Mr. Mason was originally assigned to the project and was involved except for the last meeting and he was out of town so Mr. Krause  participated.  They are both licensed engineers.

Chairman Monteleone stated that this issue must be resolved in accordance with two sections of the code. The fist section is 11 which defines proposals and how they are to come in and 12 talks about what the board is suppose to be doing.  What the board is suppose to be doing is making sure the process that was laid out for the design-build team to follow was, in fact, followed. The board’s responsibility  is to make sure the City follows the rules.  Chairman Monteleone wants their opinion as being involved in the process as to whether the rules were followed.  Mr. Miller advises the board that  the integrity of the process is intact under section 11 if the final step of opening the costs is completed.

Mr. Mason advised the board that when they did the technical review there was a list of things that Mr. Miller and his consultants had come up with on A and B that were problematic.  Mr. Mason stated that he asked during the meeting, before they voted, if those flaws were enough to stop the process and would be a deal-breaker so they could not accept what they had and could no longer go forward.  In the traditional design-bid-build you get exactly the building you can afford.  However, in this process people propose a solution that is unique to them and their idea of how to solve the problem.  You get what you are given and must choose A, B or C based upon the responses. If you want exactly what you want then you must start with an architect in the beginning and go the traditional design route.  The representatives of the owner on the committee advised Mr. Mason that they were satisfied enough with the proposals that they were willing to select A or B and there was no need to scuttle the process.  With that in mind they scored the proposals and gave the lowest score to the one that was the farthest out of the box.  Mr. Mason’s understanding at that point was that it was simply a mathematical process to plug the numbers into the formula and determine who the apparent winner would be.  Mr. Mason certified to the board that the technical review was done in accordance with the law and the scoring was done in accordance with the law.  A or B neither one was a perfect solution but they  were aware of that when they scored the responses. 

Mr. Krause then addressed the board.  Mr. Krause went to Morgantown with the understanding that he was there to participate and witness the opening of the cost envelope and calculating of the final score and selection of the apparent winner.  When Mr. Krause walked into the meeting he was advised that the entire process had been changed outside the scope of the rules.  Mr. Krause questioned in his mind why this was done without the board’s prior approval. He also wanted to assure that nothing was done that was not repairable later. He stated that he requested that the original envelopes not be opened and remained sealed.   Mr. Krause advised the board that during the meeting the technical review committee was advised by Mr. Miller that one of the original cost envelopes had inadvertently been opened when the packages were first submitted. 

Mr. Spradling stated that he felt all along that the board made a mistake for allowing them to proceed with only two bidders.  He asked Mr. Mason if only having two proposals gave them enough leway or choice.  Mr. Mason stated that this is a difficult question because both of these teams have the ability to produce a fine product and either one of them can provide a solution that is acceptable to the owner and everyone.  However, Mr. Mason stated that design-build may not be appropriate because this is a very complicated process and the owners have a finite idea of what they want and are very specific.  When you have a project where a solution is obvious then design-build may be appropriate but this type of a project may be too complicated for this type of a process.  Mr. Spradling questioned Mr. Mason about section (g) of the code. Mr. Mason stated that the law was straight forward and the proposal may not be amended during the review process.

Mr. Lane spoke on behalf of the owner.  He indicated that the owner had a lot of money involved in this project and must operate it.  He advised that they have some economic development grant dollars in place that poses some time lines on the project that were tight and created a rush.  Chairman Monteleone questioned whether those grant funds had been extended.  Mr. Lane stated that he believes they now have been extended but had not at the time they were going through this process.  Mr. Lane had concerns when folks dropped out and the tight time line may have contributed to that.   Mr. Lane advised the board that he was aware that there would be some negotiating with the winner to resolve issues. He did not know that clarification changes were not acceptable with the board.  He advised the Board that there was no malice in the process, they were just trying to be able to better negotiate.

Chairman Monteleone advised Mr. Lane that the design-build process does not give you proposals that are the same and their project may not be in the correct process. Chairman Monteleone discussed the Design-Build Procurement Act with Mr. Lane and explained what it does. In this process you may not get exactly what you want and the owner can not negotiate with both parties. The whole point to this is not to get any proposals that are the same.  That is why the Act requires a certain number of proposals.  When the City of Morgantown came before the board two meetings ago the board was troubled by the fact that they only had two proposals.  At that time the board asked the City if two was enough and if both design-build teams were qualified.  The City certified to the board that two was enough and that they could accept either bidder.

Chairman Monteleone advised the board that they have the option to continue the original process and open the original costs or to throw both proposals out and start the process over. Mr. Lane advised the board that they would like to keep the process moving and allow them to open the original costs. 

Mr. Smith moved to direct the parties in the project to take their original scoring and open the original cost envelopes, score them appropriately and select a winner.  If the City is not happy with what they got then they must start over.  The motion was seconded by Mr. Sprouse.   Mr. Clay questioned the need for the motion since the board is not approving the City’s request to change the process.  Mr. Smith agreed and withdrew his motion.  A motion was made by Mr. Smith not to amend the process. The motion was seconded by Mr. Sprouse. 

Chairman Monteleone expressed his concerns as to whether this project is appropriate for the Design-Build method of construction and requested the board members to keep this in mind as they go forward.

Old Business:

«   Chairman Monteleone advised the board that the letter sent out to all counties and cities by Secretary Ferguson is included in the packet. This was sent out as a result of on-going complaints received that entities are proceeding with Design-Build projects without first getting approval by the Board.  It will also makes the counties and cities aware that there is a design-build method of construction. 

Other Business:

«   There was not other business to come before the Board.

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There being no other business to come before the Board and the meeting was adjourned.