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Minutes

Design Build
Board of Director's Meeting
January 11, 2008

Members Present:       
Marc Monteleone, Chairman
 
Roy Smith
 
Rodney W. Clay
 
Tom Winter
 
Ron Spradling
 
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
Members Absent:       
Mary Jo Klempa
 
Woody Thrasher

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:

Chairman Monteleone advised the board that since this was an emergency meeting there was no minutes from the last meeting to be approved.  He stated that the minutes of the last meeting would be brought before the board for approval at the next meeting.

Mr. Lane of Petroplus & Associates was included in the meeting via telephone conference. 

New Business:

«                 Yeager Airport Parking Facility Project

Mr. Lloyd Miller appeared before the Board to give a status report on the project.  He stated that the Technical Review Committee for the Yeager Airport project met and did an evaluation of the proposals. The scoring sheet which reflects the results are in the package.  BBL Carlton received a score 88.5 and Carl Walker Construction received a score of 96 out of 100. If you apply the weighting to that Carl Walker gets 100 and BBL Carlton gets 92.2.  These numbers will be added to the results of the cost scoring next week.

Mr. Smith questioned whether there was any feedback from the two design builders.  Mr. Miller indicated that representatives of both contractors were present and there were a couple questions from both of the contractors but nothing significant.  Mr. Smith asked Mr. Krause, the representative of the Department of Administration, if he participated.  Mr. Krause stated that he did participate and there were no significant comments from the contractors and the committee did follow the guidelines.

Chairman Monteleone pointed out that the Statute requires that the board review both the scores and submissions.  He stated that the scores are available but not the submissions. Mr. Miller advised that the submissions were provided to Mr. Krause.  Ms. Lipscomb advised that she has the RFP but has never been provided with the responses for the board.  Chairman Monteleone stated that the responses need to be available for review by the board.  Mr. Clay stated that if they were available ahead of time for review prior to the meeting that would be sufficient.  The board instructed that two copies of the RFP’s and Responses should be provided to Ms. Lipscomb in advance.  Ms. Lipscomb was instructed to let the board know when the submissions are available for review. 

Chairman Monteleone questioned the board as to how they wanted to proceed since they  had not reviewed the responses to the proposals.  Mr. Miller went through the two qualitative proposals with the board and identified what was included and the scoring for each section.  Chairman Monteleone questioned whether the Design-Build teams were made up of licensed architects and engineers.  Mr. Miller advised that it was a requirement of the RFP and they must sign a form up front.  They also provide a list of entities, including most of the subcontractors, to assure they are licensed.

Mr. Miller advised the board that the technical portion of the response is the meat of the project. They must provide descriptions of how they will meet each requirement.  Mr. Miller advised that both teams met the requirements of the RFP.  Both teams submitted a schedule and both had a substantial completion date that was the same.  One of the priorities of the owner was the number of cars. The scoring was weighted by the items of the owner’s particular interest.  There was also a narrative by both teams as to why they should be choosen.

Chairman Monteleone requested Mr. Miller to go through the Design-Build Procurement Act and confirm to the board that each requirement was satisfied.  Mr. Miller stated that (A) there were two proposals submitted in separate envelopes. (B) proposals were received by the date required and they were not opened until the designated time and it was an open meeting. (C) The bid bond will be a part of the cost proposal so they will not be seen until that time. (D) the teams did identify the subcontracts in the RFQ. Carl Walker is using Indovina architects and Churches’ Engineering.  BBL Carlton is using Associated Architects and ME Consultants and Tarradon.

Mr. Spradling questioned if the bid bond is not in the cost proposal or not signed would they not read the cost?  He stated they would look for the bid bond first and if it is not there or not signed they will not read the cost. Mr. Spradling asked Mr. Miller if he had a list of qualified bonding agencies. Mr. Miller does not have a list.  Mr. Spradling stated that there should be an the approved list. 

Mr. Smith questioned the acknowledgment of addendums and when they were received during the pre-proposal stages.  Mr. Smith wanted to assure they were done prior to the responses to the proposals being submitted.  Mr. Miller advised that they were done prior to that time.

Mr. Smith moved to approve the process for the Yeager Airport parking facility project and authorizing the project to move to the next phase.  Motion seconded by Mr. Clay.   All members  voted in favor of the motion and it passed.

«City of Morgantown Event Center

Chairman Monteleone asked if every member of the board reviewed the letter that was sent to the board. Ms. Lipscomb advised that it was e-mailed to every member of the board and hard copies were in their packets. Chairman Monteleone stated that the facts  depicted in the letter were very different than what was represented to the board. Chairman Monteleone asked to have Mr. Lane participate by phone to review his letter.

Mr. Richard Lane was called and joined the meeting via telephone conference call. Chairman Monteleone advised Mr. Lane that the statements made in the letter were different from what the board was told during the presentation. Mr. Smith stated that Mr. Miller advised the board that one of the companies accidently had their cost in their technical proposal. He also told the board that the companies did submit their costs in separate sealed envelopes which had not been opened.  Mr. Smith indicated that the board was advised that the companies were not even identified, other than as company A and B. 

Mr. Miller explained to the board that one of the proposals had an invoicing schedule that identified the cost on one of the proposals.  Both companies did submit their costs in separate sealed envelopes.  The proposals were blind proposals.  Chairman Monteleone stated that at the last meeting the board was told that no one saw the cost.  He questioned whether any of the  review committee saw the costs.  Mr. Miller advised that the technical review committee did see the costs.  Chairman Monteleone stated that this is the first time he heard that the review committee did see the costs. 

Mr. Lane advised the board that after the last conference call during the board meeting he was extremely alarmed about the deviation from the statute.  Given the magnitude of the project he instructed his attorney to review the entire statue.  The issues in the letter were brought to his attention from the attorney. Mr. Lane recalls conversations took place about it but no actions had been taken.  He is not offering any opinion on it but they felt it needed to be addressed.  Mr. Lane is aware that Eric Andrews and himself saw the cost scores. 

Chairman Monteleone pointed out that Mr. Lane’s letter states that Mr. Miller raised the  matter with a representative of the board prior to the technical review committee’s scoring. Chairman Monteleone asked who that would have been.  Mr. Miller stated that he presented this to the board but it was after the scoring had taken place.  Mr. Lane apologized for the misunderstanding.  The point Mr. Lane wants to underscore, regardless of when it came up, is that there is a conflict with the statute and it needs to be addressed by the board.

Chairman Monteleone asked if the Economic Development Authority extended the time for the grant on the project.  Mr. Lane confirmed that the time was extended and they now have some breathing room.  Chairman Monteleone asked Mr. Lane how  the City of Morgantown thinks they should proceed?  Mr. Lane wants to proceed how the statute reads and does not want to offer an opinion.  He wants the project to be started yesterday but also wants to make sure it is done right.  Chairman Monteleone’s current understanding of what has happened is that at least some of the technical review committee saw the costs for one company before the costs were opened.  

Mr. Smith stated that his first reaction is to throw the proposal out, but when he thinks about it the reason that is in there is to keep the cost proposal from being considered along with the technical proposal.  If you think about it, what value does it have since you do not know both costs.  Mr. Smith is not sure that it is a violation of the intent.  Chairman Monteleone stated that  the cost may influence a decision if the committee thought they were high or low.    Mr. Clay stated that he does not believe the board has any option but to disqualify the submission.  Based upon his experience in the bidding process this can be a reason for protest by the unsuccessful bidder.  Once a bid is opened it is no longer secure.  Mr. Clay understands Mr. Smith’s comments about the intent but he is more black and white.  Mr. Smith respects what Mr. Clay is saying.  Mr. Spradling agrees wholeheartedly that this is a cause for protest. He strongly suggests that the  submission be thrown out.  Chairman Monteleone directed the board’s attention to §5-22-11A which states they must disqualify the submission. He advised Mr. Lane that it is now up to the City as to whether they want to move forward with one or go back out for rebid.  Mr. Smith stated that the board did give the agency authority to proceed with only two bidders.  If the agency wants to go forward with only one then it is up to them.

Mr. Smith moved that the technical submission which contained the cost proposal be disqualified and the agency be allowed to choose whether they want to proceed with one bidder.  Motion seconded by Mr. Clay.  All voted in favor and the motion passed. 

Chairman Monteleone advised Mr. Lane that he intended to respond to his letter to clarify the facts.  He also advised Mr. Lane that the proposal was disqualified pursuant to §5-22-11A. Mr. Lane requested that they be provided with a copy of the minutes once they are approved.  Mr. Miller questioned the board as to whether the City could award to the final bidder. Chairman Monteleone stated he would need a legal opinion on this as to whether the board has authority to approve this.   Based upon this, Mr. Lane advised the board that he would delay the opening of the cost proposals.

Ms. Lipscomb requested that the board make a motion for her to get a legal opinion from the Attorney General on behalf of the board.  Chairman Monteleone moved and seconded by Mr. Smith. All voted in favor and the motion passed.  Chairman Monteleone advised the board that he would respond to the letter.  Chairman Monteleone will provide Ms. Lipscomb with the specific questions that need a legal opinion.

Mr. Smith questioned whether the proposal that has been thrown out is the same design-builder whose cost envelope was inadvertently opened.  Mr. Miller stated it is not. Chairman Monteleone stated that he was unaware that one of the cost proposals had been opened. This disclosure must have come before the board during the meeting he was absent.

Old Business:

«       There was no old business to come before the board. 

Other Business:

«        Mr. Smith advised the board that he reviewed the Statute and Rules prior to the meeting and ran across a rule, 148-11-6, which stated that the agency must hire a performance criteria developer in accordance with the WV Code §5G-1-1.  Mr. Smith questioned whether that process was followed in this project and Mr. Miller selected in accordance with 5G.  Mr. Miller stated that this was done on this project.  Mr. Smith stated that the board should have some process for the board to know that this was done.  He suggested a form be sent to document this and get copies of the advertisement for their records.  Mr. Krause advised the board that the agency should not hire a criteria developer until a project is approved. Mr. Krause stated that on prior projects they hire a criteria developer prior to even coming to the board with their application. Mr. Miller stated that most owners don’t know what information is needed to bring to the board without guidance from an architect.  He suggests to the owners that they hire the criteria developer prior to coming before the board. Mr. Smith stated that the agency can hire an architect prior to approval but the criteria developer can not be chosen until a project is approved according to the law. Mr. Clay stated that the board should be satisfied that they have complied with 5G of the WV Code.  The board instructed Ms. Lipscomb to draft a form to be approved by the board. Chairman Monteleone stated that the form should just request copies of documentation to show they followed the process and not anything that requires them to state that they followed the law. Mr. Clay questioned whether it was the board’s responsibility to make sure they followed the law?  Chairman Monteleone said it was the agency’s responsibility and  the board just needs to be told.

«         Ms. Lipscomb advised the board that she received an e-mail regarding a request for interest that went out for Mingo County Schools.  The advertisement clearly stated it was a design-build project and they have not gone through the board.  Ms. Lipscomb contacted Mr. Starr and he did not know whether it was a design-build project as it was just a HVAC project. He indicated that depending on what responses they got they would decide as they may just have their own employees do the work.  Chairman Monteleone instructed Ms. Lipscomb to send him a letter advising him that he needs to come to the board for approval if he intends to do a design-build project.  

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