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Claudia Conner

Tue, Jun 16, 2020 8:29 PM

The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges.

Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid.

Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius.

The bid is in excess of $25,000.

The pertinent portion of the ordinance is below:

(3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid

Should this RFP be rebid?

Claudia Conner
Bethany City Attorney
6700 NW 36th
Bethany, OK 73008

The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges. Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid. Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius. The bid is in excess of $25,000. The pertinent portion of the ordinance is below: (3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid Should this RFP be rebid? Claudia Conner Bethany City Attorney 6700 NW 36th Bethany, OK 73008

JM

Jon Miller

Tue, Jun 16, 2020 10:04 PM

Claudia,

The Public Competitive Bidding Act, while not applicable here, requires that a bid notice be published for two consecutive weeks in a newspaper of general circulation in the county, and that the bid notice be sent to trade or construction publications (but it does not require that the notice be published in the publications). If the portion of the ordinance you refer to is all your city's ordinances provide on competitive bidding, and there is no specific requirement for publication, then it seems the questions would be two: (1) whether the city has met the spirit of the ordinance by giving enough notice to obtain competitive bids, and (2) whether it has treated prospective bidders equally. If the city is required to competitively bid, but then chooses two suppliers to receive the bid notices, it might be argued that the City did not competitively bid. It might also be argued that the City did not treat potential bidders equally. Keeping in mind the purpose of requiring competitive bidding, I would err on the side of caution and recommend rejecting all bids, going out for new bids and publishing notice. I would also recommend that the city make certain the notice is for lime FOB the city's facility, and then send the bid notice to the company that is 1,000 miles away (and any other providers of the special lime within a similar radius). If the City needs the lime before it can rebid, the purchase of a quantity to last through the rebidding might be treated as an emergency purchase not subject to bidding (if there is an exemption for emergency purchases).

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Rd. N., Suite B
P.O. Box 546
Piedmont, Oklahoma 73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.

From: Oama oama-bounces@lists.imla.org On Behalf Of Claudia Conner
Sent: Tuesday, June 16, 2020 3:29 PM
To: oama@lists.imla.org
Subject: [Oama] RFP not published

The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges.

Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid.

Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius.

The bid is in excess of $25,000.

The pertinent portion of the ordinance is below:

(3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid

Should this RFP be rebid?

Claudia Conner
Bethany City Attorney
6700 NW 36th
Bethany, OK 73008

Claudia, The Public Competitive Bidding Act, while not applicable here, requires that a bid notice be published for two consecutive weeks in a newspaper of general circulation in the county, and that the bid notice be sent to trade or construction publications (but it does not require that the notice be published in the publications). If the portion of the ordinance you refer to is all your city's ordinances provide on competitive bidding, and there is no specific requirement for publication, then it seems the questions would be two: (1) whether the city has met the spirit of the ordinance by giving enough notice to obtain competitive bids, and (2) whether it has treated prospective bidders equally. If the city is required to competitively bid, but then chooses two suppliers to receive the bid notices, it might be argued that the City did not competitively bid. It might also be argued that the City did not treat potential bidders equally. Keeping in mind the purpose of requiring competitive bidding, I would err on the side of caution and recommend rejecting all bids, going out for new bids and publishing notice. I would also recommend that the city make certain the notice is for lime FOB the city's facility, and then send the bid notice to the company that is 1,000 miles away (and any other providers of the special lime within a similar radius). If the City needs the lime before it can rebid, the purchase of a quantity to last through the rebidding might be treated as an emergency purchase not subject to bidding (if there is an exemption for emergency purchases). Jonathan E. Miller City Attorney City of Mustang 1885 Piedmont Rd. N., Suite B P.O. Box 546 Piedmont, Oklahoma 73078 Telephone: (405) 883-6266 Facsimile: (405) 883-6155 ********************************************************************************************* This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. From: Oama <oama-bounces@lists.imla.org> On Behalf Of Claudia Conner Sent: Tuesday, June 16, 2020 3:29 PM To: oama@lists.imla.org Subject: [Oama] RFP not published The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges. Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid. Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius. The bid is in excess of $25,000. The pertinent portion of the ordinance is below: (3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid Should this RFP be rebid? Claudia Conner Bethany City Attorney 6700 NW 36th Bethany, OK 73008

MR

Michael R. Vanderburg

Wed, Jun 17, 2020 2:34 PM

Claudia,

While I agree generally with Jon Miller’s opinion, it is a conservative one and one that maximizes your protection.

That said, I analyze it a little differently.

Jon is right that the Competitive Bid Act does not require material purchases to be bid at all (you did say that this was a Council decision and not a Trust decision). Therefore, the question becomes “What is due notice under the ordinance?” Since this was 3a of the ordinance, I have to assume that there are other portions which may bear on this issue. Also, past practice or a policy manual may have a bearing. However, I know of nothing in state law that would prohibit the actual notice you gave to the nearby bidders, plus a review of the more distant pricing/shipping cost of more distant bidders from being “due notice”.

You might also check the state purchasing of lime. Assuming that they use some of the same, the state contract may have the same price or a lower one, in which you can purchase under the state’s process.

Mike Vanderburg

Sent from Mail for Windows 10

From: Jon Miller
Sent: Tuesday, June 16, 2020 5:05 PM
To: Claudia Conner; oama@lists.imla.org
Subject: Re: [Oama] RFP not published

Claudia,

The Public Competitive Bidding Act, while not applicable here, requires that a bid notice be published for two consecutive weeks in a newspaper of general circulation in the county, and that the bid notice be sent to trade or construction publications (but it does not require that the notice be published in the publications). If the portion of the ordinance you refer to is all your city’s ordinances provide on competitive bidding, and there is no specific requirement for publication, then it seems the questions would be two: (1) whether the city has met the spirit of the ordinance by giving enough notice to obtain competitive bids, and (2) whether it has treated prospective bidders equally. If the city is required to competitively bid, but then chooses two suppliers to receive the bid notices, it might be argued that the City did not competitively bid. It might also be argued that the City did not treat potential bidders equally. Keeping in mind the purpose of requiring competitive bidding, I would err on the side of caution and recommend rejecting all bids, going out for new bids and publishing notice. I would also recommend that the city make certain the notice is for lime FOB the city’s facility, and then send the bid notice to the company that is 1,000 miles away (and any other providers of the special lime within a similar radius). If the City needs the lime before it can rebid, the purchase of a quantity to last through the rebidding might be treated as an emergency purchase not subject to bidding (if there is an exemption for emergency purchases).

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Rd. N., Suite B
P.O. Box 546
Piedmont, Oklahoma 73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.

From: Oama oama-bounces@lists.imla.org On Behalf Of Claudia Conner
Sent: Tuesday, June 16, 2020 3:29 PM
To: oama@lists.imla.org
Subject: [Oama] RFP not published

The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges.

Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid.

Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius.

The bid is in excess of $25,000.

The pertinent portion of the ordinance is below:

(3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid

Should this RFP be rebid?

Claudia Conner
Bethany City Attorney
6700 NW 36th
Bethany, OK 73008

Claudia, While I agree generally with Jon Miller’s opinion, it is a conservative one and one that maximizes your protection. That said, I analyze it a little differently. Jon is right that the Competitive Bid Act does not require material purchases to be bid at all (you did say that this was a Council decision and not a Trust decision). Therefore, the question becomes “What is due notice under the ordinance?” Since this was 3a of the ordinance, I have to assume that there are other portions which may bear on this issue. Also, past practice or a policy manual may have a bearing. However, I know of nothing in state law that would prohibit the actual notice you gave to the nearby bidders, plus a review of the more distant pricing/shipping cost of more distant bidders from being “due notice”. You might also check the state purchasing of lime. Assuming that they use some of the same, the state contract may have the same price or a lower one, in which you can purchase under the state’s process. Mike Vanderburg Sent from Mail for Windows 10 From: Jon Miller Sent: Tuesday, June 16, 2020 5:05 PM To: Claudia Conner; oama@lists.imla.org Subject: Re: [Oama] RFP not published Claudia, The Public Competitive Bidding Act, while not applicable here, requires that a bid notice be published for two consecutive weeks in a newspaper of general circulation in the county, and that the bid notice be sent to trade or construction publications (but it does not require that the notice be published in the publications). If the portion of the ordinance you refer to is all your city’s ordinances provide on competitive bidding, and there is no specific requirement for publication, then it seems the questions would be two: (1) whether the city has met the spirit of the ordinance by giving enough notice to obtain competitive bids, and (2) whether it has treated prospective bidders equally. If the city is required to competitively bid, but then chooses two suppliers to receive the bid notices, it might be argued that the City did not competitively bid. It might also be argued that the City did not treat potential bidders equally. Keeping in mind the purpose of requiring competitive bidding, I would err on the side of caution and recommend rejecting all bids, going out for new bids and publishing notice. I would also recommend that the city make certain the notice is for lime FOB the city’s facility, and then send the bid notice to the company that is 1,000 miles away (and any other providers of the special lime within a similar radius). If the City needs the lime before it can rebid, the purchase of a quantity to last through the rebidding might be treated as an emergency purchase not subject to bidding (if there is an exemption for emergency purchases). Jonathan E. Miller City Attorney City of Mustang 1885 Piedmont Rd. N., Suite B P.O. Box 546 Piedmont, Oklahoma 73078 Telephone: (405) 883-6266 Facsimile: (405) 883-6155 ********************************************************************************************* This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. From: Oama <oama-bounces@lists.imla.org> On Behalf Of Claudia Conner Sent: Tuesday, June 16, 2020 3:29 PM To: oama@lists.imla.org Subject: [Oama] RFP not published The Public Works Department must use lime. The annual RFP was prepared and sent to the two out of state lime dealers with the special type of lime required for the City machines. The only other lime dealer with the special lime is approximately 1000 miles further away and high shipping charges. Those two closer special lime dealers submitted sealed bids. The bids were opened at the City Council meeting in compliance with open meetings act. There was a low bidder and the item was placed on the next Council meeting to accept that low bid. Now, it has been discovered the RFP was not published, only sent to the two special lime dealers within a 500 mile radius. The bid is in excess of $25,000. The pertinent portion of the ordinance is below: (3) (a) All supplies, materials, equipment and contractual services, except as otherwise provided herein, when the estimated costs thereof shall exceed $25,000, shall be purchased by formal written contract from the lowest and best bidder, after due notice inviting bid Should this RFP be rebid? Claudia Conner Bethany City Attorney 6700 NW 36th Bethany, OK 73008