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Minutes

Design Build
Board of Director's Meeting
January 31, 2008

Members Present:       
Marc Monteleone, Chairman
 
Roy Smith
 
Rodney W. Clay
 
Tom Winter
 
Mary Jo Klempa
 
Ron Spradling
 
Woody Thrasher
Dept. of Administration:
Donna L. Lipscomb, Executive Coordinator
 
 
Others Present:
Lloyd W. Miller, AIA - Visions Architects
 
Rick Atkinson, WV Central Airport Authority
 
Scott Mason, General Services Division
 
James Kirby, Dept. of Administration
 
Steven Massaro, Massaro Corporation
 
G. Richard Lane, Petroplus $ Association via phone
Members Absent:       
Glendon "Bud" Sprouse
 

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 went through the minutes of the December 20, 2007, and January 11, 2008, meetings with the board members. Technical modifications were made.  Mr. Smith moved for the approval of the December 20, 2007, minutes as modified. Motion seconded by Mr. Clay.  Motion passed and minutes were approved as modified.  Mr. Smith moved for approval of the January 11, 2008, minutes as modified.  Motion seconded by Mr. Clay. Motion passed and the minutes were approved as modified. 

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

New Business:

«                 Yeager Airport Parking Facility Project

Mr. Lloyd Miller advised that the Yeager project is moving forward and the cost proposals have been opened.  A value of one hundred was given to the low cost and they prorated the next cost.  This ended up to be 92.2.  They added these to the values generated during the qualitative  scoring and came up with a total.  BBL Carlton was the winning proposer with a score of 192.2.  Carl Walker came in next with a score of 186.6.  Copies of both cost proposals were provided to the Board for review. Both proposals attached their bid bonds and both companies are licensed with the State.  Mr. Miller stated that the owner would like approval to proceed with the awarding of a contract.

Mr. Smith questioned whether the Department of Administration’s representative was involved in the process.  Mr. Mason advised that Mr. Krause did participate.  Mr. Krause was unable to attend the meeting today but did consult with Mr. Mason and advised that he did not see any irregularities in the process.

Ms. Lipscomb brought to the Board’s attention a letter that was received from BBL Carlton  which was e-mailed to the board members previously.  Ms. Lipscomb stated that she received numerous phone calls regarding the letter. Mr. Smith questioned Mr. Miller as to the reason for the letter.  Mr. Miller advised that the letter was generated to get negotiations started with the  apparent winner of the proposal.   There was a number of issues that were not specifically addressed in their responses and Mr. Miller wanted to make sure it was included with the proposal and their costs.  Mr. Miller advised that the winning proposer was over budget and they wanted them to start looking at ways to bring the project into budget.  The letter was to let them start looking at those issues.  Mr. Smith expressed his concern about the letter.  The last two items in the letter appear to be asking them to redesign the project and cut their price.  This is not the design-build process.  Mr. Smith stated that it is not right to ask someone to redesign a project. Mr. Smith questioned Mr. Miller as to whether this was his intent. Mr. Miller advised that the intent of the letter was to address the problems with the proposal.  Additionally, the proposal encroached in an area of the site that was restricted and could not be built on.  Mr. Smith stated that similar concerns were discussed in regard to the Morgantown project and they are doing the same thing here.  Items of importance should be contained in the request for proposal. Mr. Atkinson, with the Airport Authority, explained the circumstances and stated that this was value engineering and not redesigning the building. He further explained the situation with not being able to encroach on the air space and the importance of making changes and the cost of the change.

Mr. Smith indicated that he understands what Mr. Atkinson is saying but he also understands the concerns from the other side with the design-builders as well as a concern as a member of the board. Mr. Smith is concerned about the integrity of the process because this is a totally different approach.  Mr. Smith appreciates the value engineering prospective and it is the correct approach to address the problems.  Mr. Atkinson advised they have done this with only the apparent winner to make the project work.  Mr. Smith stressed that the specific items should be contained in the RFP so the bidders know what they are bidding on. A letter for a redesign is not appropriate.  Mr. Miller stated they needed to address issues that needed resolved before they could award a contract.  Mr. Spradling stated that he believes they did the right thing and they needed clarification.   Mr. Smith advised the board that the way the whole process took place is not the way design-build works. The letter does not read like a negotiation, it tells the contractor what to do. Mr. Clay questioned Mr. Miller if they are asking a contractor to provide a solution to come within the budget should they not ask both contractors? Mr. Miller stated that the winner had already been identified so they would not ask both contractors.  Chairman Monteleone referred the board members to the legislative rules at 148-11-11 which state that negotiations with the apparent successful bidder prior to the award of a contract may not result in a contract which would change the outcome of the original bid.  Chairman Monteleone stated that they are asking one contractor to do something to change it and not the other. Mr. Clay questioned Mr. Miller as to what the owner would do if BBL Carlton had refused to change their price. Mr. Miller advised that the  owner would then have to decide whether they wanted the contact.  Mr. Clay questioned whether they would throw out BBL Carton’s proposal or the project? Mr. Miller stated he could not answer that question.

Chairman Monteleone referred to section 5-22A-2 of the WV Code which says a design-build contract may be conditioned upon subsequent refinements in scope and price and may permit the agency to make changes in the scope of the project without invalidating the design-build project.  Chairman Monteleone advised that the board does not make that decision, it is a decision that is made by the agency. Mr. Clay cautioned Mr. Miller as both of these proposals are dollar wise far apart. However, if they had been closer and you are asking the apparent winner to reduce his price, it is incumbent upon them to ask the number two bidder.  Mr. Atkinson stated that you could not do that.  Mr. Spradling believes that what they wanted to do was make sure the lower number included everything they were hired to do. Mr. Atkinson questioned when you would do value engineering because you can not have both contractors resubmit prices.  Mr. Spradling agreed because the process has already made the selection. Chairman Monteleone stated that you can negotiate with the winner and if you can’t come to an agreement then you start over.  You can not go back to the second bidder.

Mr. Smith stated that these are issues that he wanted to bring before the board and wanted to express concerns about the process because the board has had similar discussions with Mr. Miller before. Mr. Smith believes the Yeager Airport project has satisfied all the requirements in his opinion and moves that the process be approved and the agency be allowed to move forward.  Motion seconded by Mr. Spradling. All voted in favor and the motion passed.

«        City of Morgantown Event Center

Mr. Richard Lane and Ms. Terry Houff with the City of Morgantown were called to participate via telephone conference.  Chairman Monteleone recapped what has occurred in regard to the Morgantown project.  He stated that this is the fourth meeting.  During each meeting there were issues and problems that were identified in regard to the submissions. At the last meeting the board followed the Act and based upon the information in front of them made a decision to throw out one of the submissions.  Now the board is told that perhaps the facts presented to the board is not the actual facts of the situation. Chairman Monteleone advised that the board is not a trier of fact and probably needs questions certified to the Attorney General as to what the board should do.  Chairman Monteleone stated that the purpose of this meeting in regard to this project is to come up with the certified questions.

Ms. Lipscomb questioned whether the board should reconsider their decision from the last meeting since it was based upon inaccurate information.  Chairman Monteleone advised that if there are misrepresentations the board does not make that determination.  There is an owner, a criteria developer and a design-build team that have submitted three different writings of what happend.  The board does not have the authority to weigh what is right and what is wrong. Ms. Lipscomb expressed concerns that if the board threw out a proposal because one bidder deviated from the statute and there was no deviation then the motion may need reconsidered.  Mr. Clay is not sure who it should be, but someone has to provide the board with definitive information as to what actually happened. The board would then make their decision based upon whether the procedure was correct or not. At this point, Mr. Clay agrees with the Chairman that in order to make that decision you must decide who is right and who is wrong first and this is not the responsibility of the board. Mr. Clay stated that it is not the purview of the board to decide which is correct.  Mr. Smith agrees with what Ms. Lipscomb is saying but upon review of the minutes and his prior motion, the board left it up to the agency to decide whether they wanted to proceed.  The board made a decision to throw out the proposal based upon the information provided.  A decision has already been made by the board. It is not up to the board to be the fact finder to see if the information was inaccurate. 

Mr. Kirby, General Counsel for the Department of Administration, questioned whether the City of Morgantown disputes what is in the letter from the Massaro Corporation?  Ms. Houff, with the City of Morgantown, stated that  without opening the cost proposals they can’t say whether the letter is correct or not.  However, they are aware that numbers were included in the technical proposal. The City assumed those numbers were the cost proposals that were erroneously place in the technical proposal. If it was not their cost proposal the City questions what the numbers represent.

Chairman Monteleone stated that regardless of whether the numbers were the cost proposals or not, they influenced the decisions.  Mr. Kirby advised the board that whether those are the cost proposals or not, it does not change the board’s rationale when they made the decision as there were costs in the technical proposal.  Mr. Smith stated that he would like to hear Scott Mason’s opinion on the issue since he was on the technical review committee on behalf of the Department of Administration. 

Mr. Mason advised the board that he was not influenced by the costs being in the technical proposals at all because he never got that far back in the proposal.  When Mr. Miller told the board that the costs were included, Mr. Mason stated that he went back and looked at the proposal.  Mr. Mason looked at the numbers and wondered where it came from.  He then looked at the budget number and they are different by $736,000.  Therefore, the number included in the technical proposal is not the budget number.

Mr. Steven Massaro advised the board that he could explain the numbers.  Mr. Massaro stated that the numbers being in the technical proposal was an error on their part.  The number included in the technical was the number for the event center only, not including contingencies.  Mr. Massaro advised that if they do open the cost proposal the numbers in the cost submission are very different than the numbers in the technical submission. The numbers in the cost submission also include the contingency and the cost for the parking garage.

Chairman Monteleone stated that the second question that they wanted to get an Attorney General opinion on came from Mr. Miller at the last meeting.  Even if the Massaro proposal is thrown out where does the City go from there.  Should the City go forward with just one proposal? Chairman Monteleone advised that the statute contemplates that if you have less than five proposals you can reduce the number down and go forward.  The board allowed them to proceed with only two proposals. Now there is only one proposal and the statute does not say whether they can go forward with only one proposal.  Chairman Monteleone advised that the board should look close in the future on whether they should allow a project to move forward with only two proposals due to the risk of something happening with one of them. It puts the owner in a tough situation when they have only one proposal to consider.

Ms. Lipscomb expressed concerns that if the board wants to get an opinion from the Attorney General it may take some time and this could hold the project up.  Mr. Kirby advised the board that they would not get an opinion from the Attorney General as to how they should proceed.  Mr. Kirby suggested they hire an attorney.  Chairman Monteleone questioned whether they had the ability and funds to hire an attorney. Ms. Lipscomb stated that the board has a budget of approximately $19,000, which is there for the payment of expenses.  Mr. Lane, with the City of Morgantown, stated that it was his understanding that the board was going to submit a letter to the City and get a legal opinion on the two questions. 

Chairman Monteleone advised that procedurally the board has thrown out the one proposal that contained the cost in the technical submission. The board then wanted to review the minutes from the meeting and decide whether to get a legal opinion as to whether the project could proceed with one bidder.  Mr. Kirby advised the board that they will be unable to get an Attorney General’s opinion.  Chairman Monteleone does not know where the board should go to get legal advice.  Mr. Kirby agreed to give a legal opinion on the issues if the board would so desire since the board falls under the jurisdiction of the Department of Administration.

The Chairman polled the board members to determine whether they want to get a legal opinion on the issues.  The board agreed that they need an opinion on whether the project can proceed with only one bidder and whether the bid should be thrown out if the technical submission was included the cost proposal.  Chairman Monteleone made a motion that since there is a question as to the facts that occurred, the board will take no further action on this project unless the owner wants to resubmit something back to the board.  Mr. Clay seconded the motion. All voted in favor of the motion and the motion passes. Chairman Monteleone advised the City that there are three sets of facts that have been brought to the board and the board does not have the responsibility to sort it out,  it is up to the City.

Chairman Monteleone advised that in order for the board to take any further action the City would need to provide something certified that all parties sign off on stating the facts.  Mr. Lane stated he is unclear because the board is in place to interpret the statute. The City would like the board to let them know whether this is an issue or not.  Ms. Houff indicated that they are not so concerned with how accurate the number is but they need a decision as to whether they can move forward with one bidder.  Chairman Monteleone stated that Mr. Lane’s letter is very clear and it is not up to the board to make decisions about it. Chairman Monteleone advised Ms. Houff that the board would get them a letter to let them know whether they could go forward or not and then the City can determine whether that decision is binding on the City or not. The board will get a legal opinion on that question.  Mr. Miller questioned whether the City could open the cost proposal. Chairman Monteleone advised that if the legal opinion states they can go forward with one proposal then they can open the costs.  If the opinion is they can not go forward with one proposal then the costs should not be opened.

Mr. Smith stated that he has another issue with this project.  It is Mr. Smith’s understanding that one of the cost proposals were opened.  Mr. Miller stated that when they were opening the envelopes one of the cost proposal envelopes was inadvertently opened.  The envelope was resealed and everyone signed their name on the envelope and it has remained sealed. Mr. Miller assured the board that no one saw the contents of the cost proposal.  Mr. Smith questioned whether they needed an opinion on that issue as well.  Mr. Kirby advised the board that this would not be no issue as long as no individual saw the contents. Mr. Smith stated that the statute says they shall not be opened and it was opened. Mr. Clay indicated that if a cost proposal is opened it must be disqualified even if opened in error in the regular bid method, but they may have some latitude in the design-build process. Mr. Kirby will provide an opinion on that issue as well.

Old Business:

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

Other Business:

«       No 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.