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DICS_Grading & Utilities 2012 Project Phase I AwardRESOLUTION NO. 200 -12 AWARDING PUBLIC IMPROVEMENT CONTRACT FOR THE DUBUQUE INDUSTRIAL CENTER SOUTH GRADING & UTILITIES — 2012 PROJECT, PHASE I Whereas, sealed proposals have been submitted by contractors for the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I (the Project) pursuant to Resolution No. 137 -12 and Notice to Bidders published in a newspaper published in the City of Dubuque, Iowa on the 8th day of June, 2012. Whereas, said sealed proposals were opened and read on the 21st day of June, 2012 and it has been determined that Tom Kueter Construction Co., Inc. of Peosta, Iowa with a bid in the amount of $2,325,159.85, is the lowest responsive, responsible bidder for the Project. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That a Public Improvement Contract for the Project is hereby awarded to Tom Kueter Construction Co., Inc. of Peosta, Iowa and the City Manager is hereby directed to execute a Public Improvement Contract on behalf of the City of Dubuque for the Project. Passed, approved and adopted this 16th day of July Attest: Kevin S irnstahl, City D , 2012. Roy D. Buol, Mayor F: \USERS \tsteckle \Department Correspondence \Economic Development \Dubuque Industrial Center South Grading Project \ResolutionAward ing Pu bl icl mprovementContract_071112.doc Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque Industrial Center South Grading & Utilities - 2012, Phase 1 CIP 3602160 - Design, South Siegert Farm DATE: July 11, 2012 Dubuque bierd All-America City 1 2007 Sealed bids were received for the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase 1. City Engineer Gus Psihoyos and Economic Development Director Dave Heiar recommend award of the contract to the low bidder, Tom Kueter Construction Co., Inc., in the amount of $2,325,159.85. Sealed bids were received on the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase 1 on June 21, 2012. Tom Kueter Construction Co., Inc. of Peosta, Iowa, submitted the low bid in the amount of $2,325,159.85. However, there is an irregularity with the Kueter Construction bid that needs to be considered by the City Council prior to awarding the contract. Kueter Construction did not submit the Bid Proposal Form with its bid documents. However, the bid documents did include a valid bid bond and a filled out bid schedule, revised per Addendum No. 1, Bid Form 1A. The failure to submit the Bid Proposal Bid Form 1 B, is a deviation from the plans and specifications. The question becomes whether or not this is a material deviation, which would render the bid invalid, or is a minor irregularity which may be waived by the City Council. City Attorney Barry Lindahl has rendered an opinion that in this case it is not a material deviation and it should be waived by the City Council and the contract awarded to Kueter Construction. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager David Heiar, Economic Development Director Gus Psihoyos, City Engineer 2 Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Ma ager FROM: Gus Psihoyos, City Engineer 'k 5 David Heiar, Economic Development Director SUBJECT: Dubuque Industrial Center South Grading & Utilities — 2012, Phase I CIP 3602160 — Design, South Siegert Farm DATE: July 10, 2012 INTRODUCTION Dubuque All-America City fl r n 2007 The enclosed resolution authorizes the award of the construction contract for the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I. DISCUSSION The Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I includes the grading of approximately 1,350,000 cubic yards of excavation. The project includes: — Temporary and permanent erosion control measures: Sediment basins; detention basins; vegetated swales; seeding; inlet and outlet projection; and energy dissipaters. — Grading: Clearing and grubbing topsoil removal; stockpile and spreading; removal of unsuitable material; subdrains; excavation; and embankment fill. — Deconstruction and demolition: Removal of foundations; well abandonment; and septic system removal. — Storm sewer: Approximately 600 lineal feet of storm sewer pipe. — Sanitary sewer: 2,788 lineal feet of 8- and 12 -inch sanitary sewer pipe. On June 4, 2012, the City rejected the May 10, 2012 bids for this project due to unbalanced bidding, discrepancy in the specifications, and an error in one of the bid quantities. At that same meeting, Council approved the project to be re- initiated. The new project specifications provided for a $750 /day cost mutually agreed between the City and contractor if the roadway subgrade areas are not completed by July 1, 2013, and /or the total project is not completed by November 1, 2013. The specifications also provided for an incentive of $1,000 per day for early completion of the subgrading for the streets and /or the total project. The total incentive for the completed project cannot exceed $50,000. The incentive for the street subgrading area cannot exceed $25,000 of this total incentive available for the overall grading project. BID RESULTS Sealed bids were received on the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I on June 21, 2012. Tom Kueter Construction Co., Inc. of Peosta, Iowa, submitted the low bid in the amount of $2,325,159.85. However, there is an irregularity with the Kueter Construction bid that needs to be considered by the City Council prior to awarding the contract. Section 2 -4.00 Bid Proposal Form of the Plans and Specifications for the project provides as follows: Bids must be made on the Bid Proposal form provided in the Contract Documents. The blank spaces for Bid prices must be filled in by the Bidder and no change shall be made by the Bidder in the phraseology of the Bid Proposal or in the items mentioned therein. The Bid Proposal must be fully completed, totaled, and fully signed when submitted. Kueter Construction did not submit the Bid Proposal Form with its bid documents. However, the bid documents did include a valid bid bond and a filled out bid schedule, revised per Addendum No. 1, Bid Form 1A. The failure to submit the Bid Proposal Bid Form 1B, is a deviation from the plans and specifications. The question becomes whether or not this is a material deviation, which would render the bid invalid, or is a minor irregularity which may be waived by the City Council. City Attorney Barry Lindahl has rendered an opinion that in this case it is not a material deviation and it should be waived by the City Council and the contract awarded to Kueter Construction. 2 A summary of the bid proposals received is as follows: CONTRACTOR BID Tom Kueter Construction Co., Inc. C.J. Moyna & Sons Steger Construction Connolly Construction W.C. Stewart Construction RECOMMENDATION $2,325,159.85 $2,362,735.65 $2,426,341.75 $3,084,683.70 $3,489,935.25 We recommend that the contract be awarded to Tom Kueter Construction Co., Inc. in the amount of $2,325,159.85 for the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I. BUDGET IMPACT The estimate of probable cost for Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I is summarized as follows: The project funding summary is as follows: CIP No. Fund Description 3602160 General Obligation (GO) Bonds (TIF Abated) Transfer from Unused Portion of North Siegert G.O. Bond Sale Total Project Funding Fund Amount $4,585,004 1, 000, 000 $5,585,004 The maximum budget for the project is $5,585,004 including preliminary and final design, environmental review and construction of public infrastructure (Phase II). The estimate of probable cost of Phase I includes a 10% contingency and will also include several alternate bid items to allow for flexibility when reviewing bid proposals to ensure that the project remains within budget. 3 Estimate Phase I: Construction Contract - Base $3,405,080.57 Phase I: Construction Contract - Alternates $291,850.00 Contingency $369,693.05 Consultant Services: Engineering Design, Administration & Inspection $428,120 Total Project Cost $4,494,743.62 The project funding summary is as follows: CIP No. Fund Description 3602160 General Obligation (GO) Bonds (TIF Abated) Transfer from Unused Portion of North Siegert G.O. Bond Sale Total Project Funding Fund Amount $4,585,004 1, 000, 000 $5,585,004 The maximum budget for the project is $5,585,004 including preliminary and final design, environmental review and construction of public infrastructure (Phase II). The estimate of probable cost of Phase I includes a 10% contingency and will also include several alternate bid items to allow for flexibility when reviewing bid proposals to ensure that the project remains within budget. 3 The initial CIP had shown $990,548 in funding coming from land sales. With the savings from the North Siegert project, this funding source is not needed. On June 4, 2012, the City Council approved the sale of Taxable General Obligation Bonds, Series 2012C which will provide $3,875,000 to pay costs associated with the expansion of the Dubuque Industrial Center South. ACTION TO BE TAKEN We recommend that the City Council adopt the attached resolution awarding the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I to Tom Kueter Construction Co., Inc. in the amount of $2,325,159.85. Prepared by David Heiar, Economic Development Director cc: Jenny Larson, Budget Director Bob Green, Water Department Manager Gus Psihoyos, City Engineer Deron Muehring, Civil Engineer Todd Irwin, Engineering Technician 4 RESOLUTION NO. -12 AWARDING PUBLIC IMPROVEMENT CONTRACT FOR THE DUBUQUE INDUSTRIAL CENTER SOUTH GRADING & UTILITIES — 2012 PROJECT, PHASE I Whereas, sealed proposals have been submitted by contractors for the Dubuque Industrial Center South Grading & Utilities — 2012 Project, Phase I (the Project) pursuant to Resolution No. 137 -12 and Notice to Bidders published in a newspaper published in the City of Dubuque, Iowa on the 8th day of June, 2012. Whereas, said sealed proposals were opened and read on the 21 st day of June, 2012 and it has been determined that Tom Kueter Construction Co., Inc. of Peosta, Iowa with a bid in the amount of $2,325,159.85, is the lowest responsive, responsible bidder for the Project. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That a Public Improvement Contract for the Project is hereby awarded to Tom Kueter Construction Co., Inc. of Peosta, Iowa and the City Manager is hereby directed to execute a Public Improvement Contract on behalf of the City of Dubuque for the Project. Passed, approved and adopted this Attest: Kevin S. Firnstahl, City Clerk day of 2012. Roy D. Buol, Mayor F \USERS \tsteckle \Department Correspondence \Economic Development \Dubuque Industrial Center South Grading Project\ ResolutionAwardingPubliclmprovementContract _071112 doc June 26, 2012 Dave Heiar, Economic Development Director City of Dubuque 50 W. 1 31h Street Dubuque, IA 52001 Re: City of Dubuque Dubuque Industrial Center South Grading and Utilities 2012 Phase I Rebid Award Recommendation IIW Project No.: 11083 -01 Dear Dave: In accordance with owner instructions, bids for the Dubuque Industrial Center South Grading and Utilities 2012 Phase I Rebid project were opened and read at 2:00 p.m. on June 21. Five bids were received for this project. A tabulation of the bids is enclosed. After reviewing the bids, it was determined the low base bid was submitted by Tom Kueter Construction Co., Inc. of Peosta, Iowa, in the amount of $2,325,159.85. However, the signature page of the proposal (Bid Form 1 B) was not included with the bid submitted by Tom Kueter Construction. The second low base bid was submitted by C.J. Moyna & Sons of Elkader, Iowa, in the amount of $2,362,735.65. Both contractors, Tom Kueter Construction Co., Inc. and C.J. Moyna & Sons, Inc., have the experience, workforce and equipment to properly complete this contract. We would recommend award of the Dubuque Industrial Center South Grading and Utilities 2012 Phase I Rebid project to either Tom Kueter Construction Co., Inc. or C.J. Moyna & Sons, Inc. for the base bid amount plus any of the alternates that the city may choose, subject to the recommendations of the City Attorney and the City Engineer. The engineer's estimate for the base bid was $3,405,080.57. The low base bid of $2,325,159.85 is $1,079,920.72 or 31.7% below the engineer's estimate. Sincerely, IIW, P.C. ta, k)__i-J John F. Wandsnider, P.E. Project Manager & Municipal Engineer Enc. Copy: Barry Lindahl, City Attorney Gus Psihoyos, City Engineer Dennis Waugh, P.E., S.E. President IIW, P.C. www.iiwengr.com ARCHITECTURE CIVIL ENGINEERING CONSTRUCTION SERVICES ENVIRONMENTAL ENGINEERING LAND SURVEYING MUNICIPAL ENGINEERING STRUCTURAL ENGINEERING TRANSPORTATION ENGINEERING Dennis F. Waugh, PE /SE* Charles A. Cate, PE ** Gary D. Sejkora, PE Michael A. Jansen, PE /SE Ronald A. Balmer, PE /SE /AIA John M. Tranmer, PLS / RLS Timothy J. Tranel, PE* John F. Wandsnider, PE Julie P. Neebel, PE James P. Kaune, PE Thomas J. Oster, PLS ** Wray A. Childers, PLS Geoffry T. Blandin, PE Mark C. Jobgen, PE Lauren N. Ray, PE /SE* Bradley J. Mootz, PE /SE Cody T. Austin, PE* Marc D. Ruden, PE Mark R. Fassbinder, AIA* Michael A. Ruden, NCARB /AIA* Alice M. Ohrtmann, PE Craig J. Elskamp, AIA Robert W. Blok, PE Eric J. Helminiak, PE /SE* Steven J. Hunn, PE Jeffrey J. Brandt, PLS / RLS Craig L. Geiser, PLS / RLS Adam J. Moris, PE * LEED AP ** Retired 4155 Pennsylvania Avenue, Dubuque, IA 52002 -2628 • [P] 563.556.2464/800.556.4491 ♦ [F] 563.556.7811 • • ENGINEERS ARCHITECTS SURVEYORS CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID TABULATION JUNE 21, 2012 NO DESCRIPTION PAGE 1 OF 3 MISCELLANEOUS SITE DEMO rlotnh_ation ° rlIscellaneous 2 Tratfic '1 antral Substructure P emo al 4 F lug and Fill 16' PCP 5 Fence Perna al and Disposal vv ell bandonment F em e e Septic Tanls F 9 "F 'em o Band F'enla__ Temporary Pa ement Patch - HM on 12" Stone Base aordinaticm t r /// /ail round BP Fetrdeum Line EROSION CONTROL I 1 l lisc Erosi,,n '1 ontrol 12 Seed C Fertilize Slopes../ wild Flo..ers C Ilath e Frame Grass seed C Fertile F'ural 14 Mulch In need C Entice _Temporary Temporary 3edimentaticm Basin 17 Silt Fence silt Fence - Femo al Ersrm Stone F'i Frar, - E nera Lissy aters Enaineenna Fabric- Energy Dissipaters 22 Turt Peintorcement Mat F IIed Er, si n ontrn1 Product 24 St, ,ne l =heel eel Gam pediment Trap 27 Sediment Basin Inlet Frotection Bench Outlet Erosion stone Ci ersion Berm 1!lInor 31 Di!ersicm Berm - Vlalor construction E it EXCAVATION E ca aticm, '1 lass 19 '1 E ca- ati,,n, Tops ,,I1 lI ns uita bi e V l aterial _Ieanna p ',rubbing 'Jay Lore wb dram Tile vv /F'oc I " ll:dRied I lacadam L Flo.. hannel 411 ir e_ and ENGINEER'S ESTIMATE TOM KUETER CONST CJ MOVNA &SONS STEGERCONST CONNOLLY CONST W C STEWART CONST UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL QUANTITY PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE I L3 I L3 I L3 I L3 I L3 I E. I L3 31' 9 I L3 1 L3 I L3 II = 4 E. 1 519 LE 1519 LE 7T511 _ 1 _ Tull 107 i 1,671 Si 35 E. 1 E. 3 E. 4 E. 21 E. 60 T9A1 11,6 11 LE 9,040 LF 2E. 137,111111i I L3 73 LF 54 T9n1 `9[_ $3,50 111 01- $450 911 y$16 2 $15[1 $$' 1111- $700 _i_ $209 $600 co $600 co $2,00000 $17936 $36 co $1 $I01- $7/9563 111119 $77,0 OD UU $39,150 An 12 ]9 $17,6 56 11111 111 $2 1111.1 $19 00 $749 $6,304 99 99 $2,4 00 09 6 9„ $3,040 3111111 $9,040[10 $1 -59125 $2 95 $411,159111 $5,119 13 $24175 52 $1352 $l75!74595 $1000 $74,640 00 $15 ]1- $6,9711 9 $2 1111 $12,759 19 $12,11199 $2,71 3 59 $15 1 19 $ $3nn 111111 $ II 111 $1 1 $17 59 $2 19 51 $2 25 $50 $75 $ 1111 $25 _1 $25 1 25 $ -25 $',5 19 $12,11111111111 $99, . 7 11m $37, 11111111 $2,725 0 0 $1, 1111 $ 1,`1 1111 $1`1 1111 $),,51511111 $o/s125 CIO $_l4 99 $,r 9 i5 $17,599 $1,` 0. $525 nn $2,992 59 $2,260 [HD 99 $1,35 2,5 36 99 $137, 111111111 $15, 999 $9, 111111111 $ 1 u-, ' 111 $69, 119 $',6.1111110 $12,761 99 $1 11 55 99 $$1 1 $1 J9 $151 99 1 119 $17,659 99 $257 59 $3,533 1111 11 $ 00 9U $3,9nn nn $4 0 1 191 $ `4 .191 $19,444 $1'110111111 $150 $1,335,640 $4 $ 1 1109 $r 111 5 1119 $ I _51119 $1 310 1119 1111 $55 $2,150 00 $' 09 99 $1 56 $1 73 $3,5 1199 $1 11199 $19 15 $4 791 $1 76 $ 1 009 $r 111111111 1119 $1,625 99 $4,349 111111 $I1 $500 1111 $I 1111 $2,150 99 $3,999 1 6,565 19 $31 $1,510 00 $151 ]111 $7 111 $251 9 $$l 75 $'1 99 $2,s.59 $ 11,1 $l! no $11 99 $9,949 991 $4,600 0 9 $24 $14,200 99 $1 _90 $I 75 969 $11 60 $13,_111119 $_9,_1199 $11-11,355 111 $4 2,41111 1u $4,49 0.1 $11,6 9u $225 5111 $ 3,194 95 $12,240 11191 $ ;,1_y 7 710 $4,956 15 $11,7' 111111 99 $1'r- oo 15 $' 11181 $19111'+ 9191 $' +,911 91111 $`,600 $' 95 $1,711,54511 $I 99 $2591139999 $5,__ $21,_1199 $9, 11- $, „[Inn 111 $1 $156,S.76 19 $I $11 1 96 1111 $11 52 49 $ $13,3.111111 $2 79 $2,254,23999 $141 $193,170 11 $1.]„2 5.1119 $' 999 $ 11110 $ 11111m $1411 $19419511 $129191 $6,456 1111 $145 $9,251 99 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID TABULATION JUNE 21, 2012 NO DESCRIPTION PAGE 2 OF 3 ENGINEER'S ESTIMATE TOM KUETER CONST CJ MOVNA &SONS STEGERCONST CONNOLLY CONST WC STEWART CONST UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL QUANTITY PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE STORM SEWER 41 IN' Pi_ P street _,er is- L2000G 111 LF $31{1{1 $31411_10 $2]011 $2,22''0 $3200 $3,55200 $2001 $2,22''1 $32]0 $3,55200 $3001 $ 331_111 42 LP FE3 1E. $1111101 $111000 $7111_11_1 $'1000 $7111111 00 $ 1111_111 $7111111 00 $ 1111_11_1 $62 $5,(11111 $1'111' $12'11 1' 16 "?hec l mate ? herl ''arcs 1E. $ `1w $ `111 $4,91]11 $4,`1000 $4 nnn $4,5,1:10 nn $4 nnn $4,5,1:10 nn $4r( 1n $4,pg000 $1 nnn $1 nnn 44 24" PCP Storm !.er'_L'000G 66 LE $4142 $2,7 3372 $ ±11 $25]100 $4y0c1 $ ,91100 $4y0c1 $ ,91100 a 111 1 _ $1 __ $2.9]01- $'901 $ 1000 45 24" FES 1E. $1,217 p3 $1,217 p3 $75000 $75000 $75000 $75000 $75000 $75000 $71_15 11 $10900 $).)111111111 $' nnn 46 PCP Storm »er'_L '000[' 105 LE $6711 $ 1111 $46 Ou $5,11000 $46 CO 4000 $46 CO 4000 1 _�11 111 uuu _ _ __ __ __ _ _ _ _ _ _ $r` $r., {,'_ __ $501_- $ _ __ 47 .0 "FE0 1E. $1,]0001 $I ;1_11_11 $601_11_11 $,0111 $(11'1 $0111 $(111_x1 $(11_111 $7`110 $751)00 $ °nnn $ "101111 1 ,_" F'r_F' storm _ »er is L 2000D 396 LE $75 1:1111 $29,71_11_11_1u $` 31111 $211,sisp.1111 $5300 $' n ,1_11_1 $`301 $' n ,1_11_1 $7_.1 $27,72010 $65 1r1 $' '11111 4+ 36 "FE3 1E. $1 1:11:1 sisi $1,61:01:0 $1,12111111 $1,12111111 $1,12111111 $1,12111111 $1,12111111 $1,12111111 $1,11111110 $1,11111111:11:1 $4,21:1111 so $1'1_11_11_1 5_ 42" Pi_ P 3b_rm _ »er is 21100G 31_4 LF $14'111 $4 "60110 $72`0 $ ",1110110 $72511 $22,)111110 $72511 $22,)111110 $66 1111 $26,7__10 $511 $2`411110 51 42" FE S 2E. $'11001 $42000 $1,21 111 $210100 $1,200 00 $'40100 $1,200 00 $'40100 1 00 111 000 __ $4,200 00 __ __ __ __ __ __ $L2` - $',91111__ $ ___ $II ___ 52 42 "F?P 3b_rm seh,er 11- L11OOG 41 LF $161110 $r - _1_11_11 $11]00 $4," +111' $11]00 $4,' ±111' $117" $4,' ±111' $11` 1' $4,3151111 $I 191111 $1,1191111 4" "EE0 1E. $2300'1 $ r1wl $1711rv1 $171111 $1,'0000 $1,'1111 $1,'0000 $1,'1111 $16(111 111 111 54 46" Storm Vdanhole Base 1E. $I 6611_ $I 661_11_1 $1,25000 $1,25110 $1,25110 $1,25110 $1,25110 $1,25110 $',`110 $35000 $110000 $110000 55 ls" Storm Vdanhole,,,,aII 10 •,6 $1561` $1 `61 `(1 $, ,00 $� 111 $ .00 $ 111 $ .1_11_1 $ 111 $1` 10 $1,`(111" _ _ _ $119 1111 $1,6 5111111 1, _one 'Prate Trash Pact 1E. $97151 $97151 $775" $775" $77501 $77501 $77501 $77501 $1,31_111 $1,31_111 $1'111 $I 111 57 °Storm Vdanhole Base 2E. $13.111_ $2,61:0 so $1,51111 $=,,1011_10 $I 111 $)..111111 1111 $I 111 $' 111 $65 10 $1,31111 $2,$,1111 11 $ 111 _" Storm Vdanhole IlIlall _3 ''E $310 $ 74000 $24 ]u $5,52110 $24000 $5,521:11:10 $24000 1111 1 11 111 _ _ _ _ _ _ _ _ _ $ _ _ _ $ 31 ` ]1 $1,'19 " $' 111 _ _ $ a _ _ _ + Lone Trash Fact 2 $1,20010 $210000 $1,3`111 $2,70010 $13`111 $2,7 -111" $13`111 $2,7- 111" $251 111 111 111 _ __ __ � __ � __ _ $9,111111" $I a0. $'. -1 sds $4" Storm Vdanhole Base 2 E. $1,51_11_11_1u $' -1111 $2,'1111 $4,111111 $2,1111111111 - $111111 $2,1-11-1111111 - $111111 $I 1111 1 111 111 111 __ __ _ _ _ _ _ _ $',1111_ __ $ `__ $ __ 111 34" Storm Vdanhole IlIlall 17 ''E $4O0 0t $6,60 s1 $33-110 $5,61110 $33(100 $5,61110 $33(100 $5,61111 111 111 110 - $15 $1,65- - $190 nn 34 _ones -rate Trash Pact 1E. $13.111_ $13111 $1755" $1759" $1,751_11111 $1751_1111111 $I `111 $1751_11111 $2,111_11_11111 $2,'1111 $ `111 $D.,51a11111 o4" slab Tc!p..Ith Grate 1 E. $I' 110 $I' 110 $1,275" $1,275" $1,275 1:1111 $1, 7511 $1,275 1:1111 $1, 7511 $1,71:0 so $171110 $3,51:0 so $ ` 111 1 Letenhon uutlet Structure 1 1 E. $6,1_11_11_11_11_1 $6,0rai 11 $2,25.110 $2,251_110 $2,251_11_1u $ 111 $2,251_11_1u $ 111 $).)111111111 $3,00000 $7,21:0 nil $ 111 r Letenhon i Jutlet Structure 2 1E. $6,1_11_11_11_11_1 $6,0rai 11 $111111 $111 "' $11111" $111"' $111 "' $11111" $3, {11_ $','1111 $ 111 $ 111 6 Letenhon Outlet Structure 3 1 E. $r 111 $r 111 $4,250 110 $4,250 110 $4 251 110 $4 251 110 $4 251 110 $4 251 111 1 111 111 111 - 1 - 1 - __ __ ___ ___ ___ ___ $9111 $9,1111 $Il 1 - $Il SANITARY SEWER ,7 p" DIP i_ lass 51 1660 LE $`514000 $'.175 $5',31000 $',175 $ 5 D,31000 $3175 3,340 $' $F3,31000 $36600 $r 1_(111 12" DIP Class 51 1617 LF $5001- $ 1_111_1 $4050 $74,72551 $169' $74,72551 $169' $74,72551 $5 $93,_ -81_11_1 $55 nn 111 4" "IG Manhole Ease 14 E. $1.],60 CO $9520 SO $I, "100 $17,`0100 $1.25u 'fl-1 $17,500 00 $12`111 $17,500 00 $665 00 $9,91100 $1.051_11_11_1 $14,700 00 70 46" IGVdanh,Ie Side.. all 144 ''E $ +311 $14,11210 $6751_1 $12,60111 $67511 $12,61:01:11:1 $67511 $12,61:01:11:1 $141111 $211,psdinn $13100 $10,72111111 71 manhole prame a rn. er 14 E. $43'11 $6,11121-11-1n $1 10 $10, "000 $7 311 uu $I 111111 $ 3x1110 $01,22111111 $795 $111'(110 uuu uuu _onnechc!nto E 'sting Se..er Vdanhole Stub 1E. $73000 $73000 $2,00000 $2,00000 $'00000 $'_0000 $'00000 $'_0000 $1,61- 0 $1,60000 $1`0000 $150100 select Bacl till 60 LF $2001 $12111 $51_11_11_1 $3,1:11:1u rii_i $5000 $).)111111111 $5000 $).)111111111 $2).1111 $1,36111 $2900 $1,51_1111111 74 Trench 3tatlh_ahc!n atone 100 THAI $2:: 111 $1110 $410111 $4 "0 $4 111 $4 "0 $4 111 $1 X11 $151111 111 111 _ ___ _ ___ _ ___ _ ___ __ _____ $'11_- $' ___ BASE BID TOTAL (Basis of Award) $3,405,08057 $2,325,15985 $2,362,73565 $2,426,34175 $3,084,68370 $3,489,93525 -31 71% 3061% 2874% 941% 249% CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID TABULATION JUNE 21, 2012 NO DESCRIPTION ALTERNATE 1 Sanitary Sewer I -1 12" GIP Mass 51 1 -2 46" ID Manhole Base "1 -3 46/" ID Vdanhole 9'de.. all "1 -4 Vdanhole FrameF?o er ALTERNATE 1 TOTAL PAGE 3 OF 3 ENGINEER'S ESTIMATE TOM KUETER CONST CJ MOVNA &SONS STEGERCONST CONNOLLY CONST W C STEWART CONST UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL QUANTITY PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE PRICE 1199 LE $500'1 $ 11110 $5_]0 $99,49000 $5000 'V.9,951_11111 $5 {i 00 .V.01,951_11111 $p_111H $71,94110 $55 '1111' $6`,94500 5E" $66(1(11-I $=1'100 $1,9' 111' $7, "100 $I 100 $ 000 $I 100 $ 100 $7111 1 ii ' $4,99000 $1,1151_11111 $ 000 51 F V=1,1_11_1 $5,762 Do $II ]0 $511 " "" $l 11-"-"J $ 11 " "" $l 1110 $6,490 00 $1' 0 $7,67000 $13110 $ 67000 9E" $4'001 $219000 $731_11111 $},69000 $7=000 $7F5 i'i'i' $7=000 $7F5 i'i'i' $7"`,1111 $},97900 $-!- 'i'i'i' $4 i'i'i' $71,262 Du $77,`9000 $77,590 ou $ ,_1'00 $07,13500 ALTERNATE 2 Sanitary Sewer • -1 6" GIP Mass 51 575 LF $41-11_11_1 $ 3,040 00 =2 42' ID Manhole Base 3E" $660 00 $'14000 =3 42' IGVdanhole „de..all 31_1' "F $Y.:.1-11_1 $2,940 Du "2 -4 Vdanhole FrameF?o!! er 3E" $4300'1 $1,290 Do ALTERNATE 2 TOTAL $ 1,310 00 $24,192 00 $?, Do $2,190110 $ 34,132 00 ALTERNATE 3 Sanitary Sewer 3 -1 .3" DIP Class 51 „90 LF $41-1 iiii $75F 000 $4200 $''1,'_000 • 46" ID Vdanhole Base 3 E" $660 Do $2,041:1 00 $1,500 00 $4,500 00 • -3 46" IGVdanhole „de.. all 23 '"F $Y.:.1_11_1 $2,25411 $11100 $2, "000 °3 -4 Vdanhole Frame - ?o - -er 3E" $431-11_11_1 $1,290 Do $730 00 $2,11000 ALTERNATE 3 TOTAL $41,164 00 $45,600 00 ALTERNATE 4 Sanitary Sewer "4 -1 16 "GIP Class 51 1061 LF "4-2 46" ID Vdanh Base 3 E" $ 1 $2,040 ]0 "13 411" IGVdanh I e 46' "F $9 °44 Manhole Frame o - -er 3E" $4' ,11 1-11-1 $1 111' ALTERNATE 4 TOTAL $Y2,71.3 Do ALTERNATES Sanitary Sewer 9 -1 6" DIP Class 51 926 LF $41-11_11_1 $3,12000 • -2 46" ID Manhole Base 3 E" $660 00 $2,040 00 • -3 46" ID Manhole „de..all __ '"E $+,1_0. $2j56111111 °5 -4 Manhole Frame and er 3E" $4300'1 $1,290 Do ALTERNATE S TOTAL $42,606 i'i' ALTERNATE 6 Excavation Topsoll, Spread $2 95 $14,75000 $165 $6,__000 $24,19200 $ $2,1+0111' $31 102 111' 1' 1111 $4,500 00 0 $2,190 00 $46,600 00 $24,192 00 $ $2,1+0111' $34 162111' 1'1111 $2 0 $2,190 00 $46,600 00 $11_15,113g Hi! $4,500 00 1+ 110 $116,769 00 $15010.' $2,421111110 $4$2,1.:11-1 1 $1 60 $6,000 00 $176 $6,900 00 $35 _1 $6 211 $1 31-11,1 $799 1111 $20, 361 60 $3,76 o $2,3.500 $20,176 611' $36.630 1110 $11110900 $2,662 00 $2 365 00 $122,6_00 $3310E Ui1 $1,962 i'_'' $2,6611 Do $2 365 nn $40,619 nn $20,736 ou $3,901_1 0 $ 2190 1111' 9 1.500 $3,150 ou $ $21]0 $101,715 00 $ 33 1 1„ 111111 $2,66111 Do $' 150 1111 $2,4HH $41,616 00 $3E' $17,50000 $1 41 $'_`000 THE CITY OF DUB MEMORANDUM Masterpiece on the BARRY LIND CITY ATTOR EY To: Mayo r oy D. Buol and Members of the City Council DATE: July 12, 2012 RE: Dubuque Industrial Center South Grading and Utilities — 2012 Phase I At the June 4, 2012 City Council meeting, the City Council rejected all bids for this project and directed that the project be immediately rebid. On June 21, 2012, the new bids were received. The apparent low bidder for the project is Kueter Construction. However, there is an irregularity with the Kueter Construction bid that needs to be considered by the City Council prior to awarding the contract. BACKGROUND Section 2 -4.00 Bid Proposal Form of the Plans and Specifications for the project provides as follows: Bids must be made on the Bid Proposal form provided in the Contract Documents. The blank spaces for Bid prices must be filled in by the Bidder and no change shall be made by the Bidder in the phraseology of the Bid Proposal or in the items mentioned therein. The Bid Proposal must be fully completed, totaled, and fully signed when submitted. The original plans and specifications provided an itemized Bid Schedule, Bid Form 1A. See attached pages 1 -4. The original bid documents also included a Bid Proposal, Bid Form 1 B. See page 5 of the attached materials. Kueter Construction did complete submit the Bid Schedule and Bid Proposal forms in its original bid. However, those bids were rejected and the project was rebid. To avoid the confusion in the plans and specifications which resulted in the rejection of the original bids, IIW Engineers issued Addendum No. 1. See page 6 -7. The Addendum included a Revised Bid Schedule, Bid Form 1A. See pages 8 -11. However, the Bid Proposal form, Bid Form 1B, was not included with Addendum No. 1 because there had been no revision to the Bid Proposal OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org form. Kueter Construction submitted the Revised Bid Schedule and, initialed each page. See pages 12 -15. However, Kueter did not submit the Bid Proposal. Kueter also submitted a bid bond. See page 16. DEVIATION FROM PLANS AND SPECIFICATIONS The failure to submit the Bid Proposal, Bid Form 1B, is a deviation from the plans and specifications. The question becomes whether or not this is a material deviation, which would render the bid invalid, or is a minor irregularity which may be waived by the City Council. Unfortunately, there is very little law from the Iowa appellate courts on what constitutes a material deviation or a minor irregularity in a bid. One case, however, which does shed some light on the question, is Scheckel vs. Jackson County, Iowa, 467 N.W.2d 286 (Iowa Ap 1991), where the Court states as follows: As our supreme court in Istari Const. Inc. v. City of Muscatine, 330 N.W.2d 798 (Iowa 1983), stated: As a general rule, we are reluctant to interfere with a local government's determination of who is the lowest responsible bidder, absent proof that the determination is fraudulent, arbitrary, in bad faith, or an abuse of discretion. Our reluctance to interfere with local government determination under the circumstances mentioned above is founded on the theory that "public officers in awarding contracts for the construction of public works ... perform not merely ministerial duties, but duties of a judicial and discretionary nature...." 64 Am.Jur.2d Public Works and Contracts § 64 (1972). Courts, "in the absence of fraud or a palpable abuse of that discretion ordinarily will not interfere with their decision as to the details of entering into a contract, or the acceptance of bids therefor, so long as they conform to the requirements of controlling constitutional or statutory provisions, ordinances, or other governing legislative requirements." Id. The complaint here is that there is a genuine issue of fact as to whether the defect in the bid can be waived. In this respect, what defects in the bid may be waived is to be determined from a construction of the statutes and a consideration of the essentials of competitive bidding. Id. at § 62. As is stated in the Am.Jur.2d citation: Generally, formal defects not affecting the competitive character of a bid may be disregarded; and so, the mandatory provisions of a statute not being violated, a public board may waive compliance with its own requirements as to the form of bid, or as to information to be supplied by bidders. The statement has been made that the board may waive defects 2 in a bid where such waiver works no prejudice to the rights of the public. While public officials may waive irregularities or requirements as to the form of bids, they have no authority to waive defects which affect or destroy competitive bidding. Id. Generally the test of whether a variance is material is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders. Duffy v. Village of Princeton, 60 N.W.2d 27 (Minn.1953). As the court stated in Istari, at page 800, "Competitive bidding in granting of municipal contracts 'is employed for the protection of the public to secure by competition among bidders, the best results at the lowest price, and to forestall fraud, favoritism, and corruption in the making of contracts.' " Also of some practical assistance is the Public Owners' Guide to Legal Issues on the Bidding and Award of Construction Contracts in Iowa, published and endorsed by the American Institute of Architects, Iowa Chapter, American Council of Engineering Companies of Iowa, and Master builders of Iowa. A copy of the relevant sections of the Guide is attached. Appendix A to the Guide, Waiver of Bid Irregularities, notes that a bid must be "responsive ", which requires that it substantially comply with the specifications and requirements set out in the invitation to bid. Deviation amounting to a non - responsive bid is a "material" deviation which cannot be waived. A material deviation "occurs when one bidder gains a substantial competitive advantage as a result of the bidder's deviation from the requirements of the bid invitation." Or, as the Guide also points out, "a mistake is not material and therefore is waivable if the deviation is not 'capable of facilitating corruption or extravagance, or likely to affect the amount of bids or the response of potential bidders." According to the Guide, the proper test for determining whether the bid defect creates a competitive advantage is "whether the contract, with the defect included, would have afforded the bidder an advantage over its competitors." On the other hand, a minor, not material irregularity in a bid may be waived. An irregularity is considered minor "when the effect on price, quantity, quality, or delivery is negligible compared to the total cost." The Guide indicates that "lack of signature" may be considered a minor irregularity "where other documents indicate bidder's commitment to be bound, and in some instances failure to acknowledge addenda." The Guide also indicates that "bids must be signed to create a binding contract unless it can be determined from other bid documents that the bidder intends to be bound." Irregularities in bid documents must be considered on a case -by -case basis because they are so fact - intensive. 3 POSITION OF THE PARTIES I have attached to this Memorandum communications I have received from the attorneys for Kueter Construction and CJ Moyna & Sons, Inc. Both of those bidders firmly believe that they are the low responsible, responsive bidder. The attorney for Kueter Construction has found an Iowa Supreme Court case from 1941 which appears to support my conclusion below that the failure to sign a bid proposal can be waived by the City Council. If the contract is awarded to one of them, there is a possibility that the other unsuccessful bidder may file a lawsuit challenging the award of the contract. The risk to the bidder to whom the contract is awarded is that if the challenge is successful, the court would be required to conclude that the contract is null and void. In that event, the contractor would not be entitled to any compensation for work that was already performed. That is a significant risk that the contractor would be assuming. RECOMMENDATION Based upon the foregoing considerations, it is my opinion that Kueter Construction's failure to submit the Bid Proposal form at the time of the bid opening was a minor irregularity which can be waived. I base my recommendation on the following: 1. The failure to submit the Bid Proposal form does not appear to have resulted in an unfair competitive advantage nor does it appear to have affected the price, quantity, quality or delivery; 2. Kueter Construction did complete the Revised Bid Schedule and initialed each page, indicating that it must have received the Addendum No. 1. At the top of each page of the Revised Bid Schedule it is stated that "bidder agrees to perform all the work described in the contract documents for the following unit prices or indicated sums." This is evidence of the "bidder's commitment to be bound" by its bid. 3. Kueter submitted a valid bid bond. The bid bond, also signed on behalf of Kueter Construction, states that the bid bond will be forfeited if Kueter Construction withdraws its bid or fails to enter into a written contract with the City of Dubuque in accordance with the bid as accepted. 4. To avoid any concern that Kueter Construction would not honor its bid, I have had Kueter Construction complete and sign a Bid Proposal form. See page 17. Given the risk of a bid challenge, the third alternative the City Council may want to consider is rejecting all bids and requiring that the project be rebid. However, rebidding the project will result in a further delay of approximately one month for the 4 commencement of the project. There is also no guarantee that the current favorable bid amounts won't be higher the third time around. Based on the foregoing, I recommend that the City Council waive the failure to submit the Bid Proposal form as a minor irregularity. If the City Council is in agreement, the contract should be awarded to Kueter Construction, the lowest responsive, responsible bidder. BAL:tls Attachments cc: Michael C. Van Milligen, City Manager Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer Dave Heiar, Economic Development Director John Wandsnider, IIW F: \USERS\tsteckle \Lindahl\ Memos \MayorCouncil_ DubindustrialCtrSouthGrading &Utilities_071212.doc 5 i BIDDER agrees to perform all the work described in the CONTRACT DOCUMENTS for the following unit prices or indicated sums: CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID SCHEDULE NOTE: Bids shall EXCLUDE sales tax and all other applicable taxes and fees NO. DESCRIPTION MISCELLANEOUS SITE DEMO 1 Mobilization & Miscellaneous 2 Traffic Control 3 Substructure Removal - Building 1 4 Substructure Removal - Building 2 5 Substructure Removal - Building 3 6 Substructure Removal - Building 4 7 Substructure Removal - Building 5 8 Substructure Removal - Building 6 9 Substructure Removal - Silo 1 10 Substructure Removal - Bin 1 11 Plug and Fill 18" RCP 12 Fence Removal and Disposal 13 De- Energize and Remove Utility Poles 14 Well Abandonment 15 Remove Septic Tanks 16 Asbestos Removal 17 PCC - 9" Remove and Replace 18 Coordination for Work Around BP Petroleum Line EROSION CONTROL t9 Misc. Erosion Control 20 Seed & Fertilize Slopes w/ Wild Flowers & Native Prairie Grass 21 Seed & Fertilize - Rural 22 Mulch 23 Seed & Fertilize - Temporary 24 Temporary Sedimentation Basin 25 Silt Fence 26 Silt Fence - Removal 27 Erosion Stone 28 Riprap - Energy Dissipaters 29 Engineering Fabric - Energy Dissipaters 30 Turf Reinforcement Mat 31 Rolled Erosion Control Product (including building debris) (including building debris) (including building debris) (including building debris) (including building debris) (including building debris) This bid schedule accompanies the bid of Bid Proposal Page 1 of 5 UNIT QUANTITY PRICE 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 8,680 LF 1 LS 1 EA 1 LS 1 LS 312 SY 1 LS 1 LS 22 AC 87 AC 212 AC 109 AC 4 EA 1,510 LF 1,510 LF 207 TON 510 TON 107 SY 1,038 SY 1,871 SY BID FORM 1A TOTAL PRICE B -1 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASEI BID FORM 1A BID SCHEDULE (continued) UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE EROSION CONTROL (continued) 32 Stone Check 33 Check Dam 34 Sediment Trap 35 Sediment Basin 36 Inlet Protection 37 Bench Outlet Erosion Stone 38 Diversion Berm - Minor 39 Diversion Berm - Major 40 Construction Exit EXCAVATION 41 Excavation (Unclassified) 42 Excavation & Stockpile Unsuitable Mat. 43 Clearing & Grubbing 44 Topsoil - Strip & Stockpile (12 ") 45 Topsoil - Spread 46 Subdrain Tile W /Rock 47 3" Modified Macadam 48 Low Flow Channel 49 Geogrid STORM SEWER 50 18" RCP Storm Sewer CL 2000D 51 18 "FES 52 18" Checkmate Check Valve 53 24" RCP Storm Sewer CL 2000D 54 24" FES 55 30" RCP Storm Sewer CL 2000D 56 30" FES 57 36" RCP Storm Sewer CL 2000D 58 36" FES 59 42" RCP Storm Sewer CL 2000D 60 42" FES 61 48" RCP Storm Sewer CL 2000D 62 48" FES 63 Trench Stabilization Stone 64 48° Storm Manhole Base 85 48" Storm Manhole Wall 66 48" Cone Grate Trash Rack 67 72" Storm Manhole Base 88 72" Storm Manhole Wall 69 72" Cone Grate Trash Rack This bid schedule accompanies the bid of BId Proposal Page 2 of 5 35 EA 6 EA 3 EA 4 EA 21 EA 80 TON 11,610 LF 9,040 LF 2 EA 834,900 CY 104,000 CY 4 AC 33,000 CY 58,000 CY 13,073 LF 7,464 TON 538 LF 6,380 SY 111 LF 1 EA 1 EA 66 LF 1EA 105 LF 1EA 396 LF 1EA 304 LF 2 EA 41 LF 1EA 30 TON 1EA 10 VF 1EA 2 EA 23 VF 2 EA B-2 3 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1A BID SCHEDULE (continued) UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE STORM SEWER (continued) 70 84" Storm Manhole Base 71 84" Storm Manhole Wall 72 84" Cone Grate Trash Rack 73 84" Slab Top with Grate 74 Detention Outlet Structure 1 75 Detention Outlet Structure 2 76 Detention Outlet Structure 3 SANITARY SEWER 77 8" DIP Class 51 78 12" DIP Class 51 79 48" ID Manhole Base 80 48" ID Manhole Sidewall 81 Manhole Frame & Cover 82 Connection to Existing Sewer Manhole Stub 83 Select Backfill 84 Trench Stabilization Stone BASE BID TOTAL (Basta of Award) ALTERNATE 1 Sanitary Sewer A1-1 12" DIP Class 51 A1-2 48" ID Manhole Base A1-3 48" ID Manhole Sidewall A1-4 Manhole Frame & Cover ALTERNATE 1 TOTAL ALTERNATE 2 Sanitary Sewer A2 -1 8" DIP Class 54 A2 -2 48" ID Manhole Base A2 -3 48" ID Manhole Sidewall A2 -4 Manhole Frame & Cover ALTERNATE 2 TOTAL This bid schedule accompanies the bid of Bid Proposal Page 3 of 5 2 EA 17 VF 1 EA 1 EA 1 EA 1 EA 1EA 1680 LF 1607 LF 14 EA 144 VF 14 EA 1EA 60 LF 100 TON 1199 LF 5 EA 59 VF 5 EA 576 LF 3 EA 30 VF 3 EA 8 -3 4 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1A BID SCHEDULE (continued) UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE ALTERNATE 3 Sanitary Sewer A3 -1 8" DIP Class 51 A3 -2 48" ID Manhole Base A3.3 48" ID Manhole Sidewall A3 -4 Manhole Frame & Cover ALTERNATE 3 TOTAL ALTERNATE 4 Sanitary Sewer A4 -1 18" DIP Class 51 M-2 48" ID Manhole Base A4 -3 48" ID Manhole Sidewall A4-4 Manhole Frame & Cover ALTERNATE 4 TOTAL ALTERNATE 5 Sanitary Sewer A5 -1 8" DIP Class 51 A5 -2 48" ID Manhole Base A5.3 48" ID Manhole Sidewall A5 -4 Manhole Frame and Cover ALTERNATE 5 TOTAL ALTERNATE 6 Miscellaneous Slte Demo A6 -1 Superstructure Removal Building 1 A6 -2 Superstructure Removal Building 2 A6 -3 Superstructure Removal Building 3 A6-4 Superstructure Removal Building 4 A6 -5 Superstructure Removal Building 5 A6 -6 Superstructure Removal Building 6 A8 -7 Superstructure Removal Silo 1 A6 -8 Superstructure Removal Bin 1 ALTERNATE 6 TOTAL This bid schedule accompanies the bld of Bid Proposal Page 4 of 5 890 LF 3 EA 23 VF 3 EA 1061 LF 3 EA 46 VF 3 EA 928 LF 3 EA 22 VF 3 EA 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS B-4 s- CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1B BID PROPOSAL The bidder hereby certifies that the bidder is the only person or entity interested in this proposal as principal; that an examination has been made of the plans, specifications, and contract form, including the special provision contained herein, and of the site of the work, and the bidder understands that the quantities of work shown herein are approximate only and are subject to increase or decrease; and further understands that all quantities of work, whether increased or decreased, are to be performed at the unit price as stipulated herein; the bidder proposes to furnish all necessary machinery, equipment, tools, labor and other means of construction, and to furnish all materials specified in the manner and time prescribed and to do the work at the prices herein set out. Accompanying this proposal in a separate envelope is a cashier's or certified check payable to the City Treasurer, City of Dubuque, drawn on a bank in Iowa or a bank chartered under the laws of the United States, in the amount of ten percent (10 %) of the bid submitted; or a bid bond in the penal sum of ten percent (10 %) of the bid submitted executed by the bidder and an acceptable corporate surety. It is understood that this proposal guarantee will be retained in the event the formal contract or bond is not executed, if award is made to the undersigned. The bidder further agrees to execute a formal contract and bond, if required by the contract documents, within seven (7) days of the award of the contract by the City Council, and that the bidder will commence work on or about ten (10) days after the date of the contract, and will complete the work within the specified contract period or pay the liquidated damages stipulated in the contract documents. The bidder acknowledges receipt of the following addendum: Dated: Dated: Dated: PRINCIPAL: Contractor Address Individual ( ) Partnership ( ) Corporation ( ) City By: Signature State Zip Title Date Note: To be completed by out of State bidders. The State of does ( ) / does not ( ) utilize a percentage preference for in state bidders. The amount of preference is percent. Bid Proposal Page 5 of 5 B -5 DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I IIW PROJECT NO. 11083-01 ADDENDUM NO. 1 APRIL 30, 2011 TO ALL PLANHOLDERS AND INTERESTED PARTIES; This addendum provides clarification of and modification to the drawings, specifications and /or contract documents for the Dubuque Industrial Center South Grading and Utilities 2012 Phase I project. Bidders are required to acknowledge this addendum on the bid form. 1. PRE -BID MEETING MINUTES A Pre -Bid meeting was held on April 24, 2012. The minutes are included with this addendum and hereby made a part of the Contract Requirements. 2. CONTRACTOR GENERATED BID SCHEDULE The bid schedule may be transcribed to a contractor - generated form and submitted for this project provided it is attached to a properly completed Proposal. Unit prices will govem evaluation of bids. Transcription errors (bid item missing, etc.) may result in the contractor generated bid schedule being deemed nonresponsive, 3. NPDES PERMIT The Contractor is required to obtain the NPDES permit. At the completion of the project, when the required stabilization has been achieved, the Contractor can file a Notice of Discontinuation with the Iowa DNR, whereby the responsibility for the NPDES permit becomes the responsibility of the Owner. 4. GEOTECHNICAL RECOMMENDATIONS - CLAY CORE As discussed in the Pre -Bid meeting, soil borings in the vicinity of Detention 1 indicate that sand may be present. The embankment construction for the detention pond shall consist of compacted cohesive (clay) soil. The Contractor shall over - excavate the sand material to a depth of 5 feet below the elevation of the pond interior (or to bedrock) and replace it with clay. The excavation trench shall be at least 24 inches wide and it is anticipated that it will be 500 feet in length. All costs associated with excavation and placement of the clay core shall be included in the lump -sum contract price for Clay Core, 5. GEOTECHNICAL RECOMMENDATIONS - PAD 4 GRADING According to the geotechnical investigation, a slight modification to a portion of the northern cut - slope on Pad 4 may need to be made during construction. This is due to the expected presence of a potential unstable soil material that may be encountered during excavation. It is anticipated in the final (lower) 2 to 3 feet of excavation and for a length of up to 20 feet. This area may be adjusted so that the slope for this small portion, which is planned to be 3:1, may have to be flattened to a slope of 5:1. It is anticipated that this adjustment may affect no more than 50 CY of material. If needed, the cost for this adjustment shall be incidental to Excavation, Class 10. MW, P.C. www.iiwengr.com ARCHITECTURE CIVIL ENGINEERING CONSTRUCTION SERVICES ENVIRONMENTAL ENGINEERING LAND SURVEYING MUNICIPAL ENGINEERING STRUCTURAL ENGINEERING TRANSPORTATION ENGINEERING Dennis F. Waugh, PE /SE* Charles A. Cate, PE** Gary D. Sejkora, PE Michael A. Jansen, PE /SE Ronald A. Balmer, PE /SE /AIA John M. Tranmer, PLS / RLS Timothy J. Tranel, PE* John F. Wandsnider, PE Julie P. Neebel, PE James P. Kaune, PE Thomas J. Oster, PLS ** Wray A. Childers, PLS Geoffry T. Blandin, PE Mark C. Jobgen, PE Lauren N. Ray, PE/SE* Bradley J. Mootz, PE /SE Cody T. Austin, PE Marc D. Ruden, PE Mark R. Fassbinder, AIA* Michael A. Ruden, NCARB /AIA* Alice M. Ohrtmann, PE Craig J. Elskamp, AIA Robert W. Blok, PE Eric J. Helminiak, PEISE* Steven J. Hunn, PE Jeffrey J. Brandt, PLS / RLS * LEED AP ** Retired 4155 Pennsylvania Avenue, Dubuque, IA 52002 -2628 • [P] 563.556.2464/800.556.4491 ♦ [F] 563.556.7811 ENGINEERS. ARCHITECTS. SURVEYORS. IIW Dubuque Industrial Center South Grading and Utilities 2012 Phase I - Addendum No. 1 April 30, 2012 Page 2 of 2 6. EXCAVATION AND SPREADING OF UNSUITABLE MATERIAL OR TOPSOIL It has been determined that the contract does not currently provide for both excavation and spreading of unsuitable material or of topsoil under one contract item. The contract provides for placement of these two materials in a topsoil stockpile. To provide for excavation and spreading of unsuitable or topsoil material in one operation, a bid item has been added to the Revised Bid Schedule included with this addendum. It is estimated that 40% of the topsoil needed for slopes could be spread directly after excavation without having been placed in a stockpile. Therefore, the quantities have been adjusted accordingly. Also, the pertinent "Earthwork Calculation Information" contained in the Special Project Requirements for Section 11 (Pages SPR -2 and SPR -3) has been revised as follows: 3. The volume of unsuitable soil expected to be encountered, based on the Dubuque County Soil Survey and the geotechnical investigation, is estimated to be 104,000 cubic yards. This estimate is based on an average depth of 3.5 feet within the limits as shown in the plan drawings. Actual depths will vary, depending on what is encountered. Of this total amount, 81,000 cubic yards is planned to be excavated and stockpiled for later use as topsoil and 23,000 cubic yards is estimated to be excavated and spread as topsoil in a single operation. 4. The volume of topsoil to be stripped to a depth of 12 inches and stockpiled is estimated to be 33,000 cubic yards. Some or all of this material may be excavated and spread directly. If so, the quantity will be paid for as mentioned above. 5. The volume of topsoil and unsuitable soil to be spread on finished subgrade for swales and slopes is estimated to be 58,000 cubic yards, 7. TRAFFIC CONTROL - CLOSING OF SEIPPEL ROAD Traffic control was discussed at the Pre -Bid Meeting. The contract provides for closing Seippel Road for no more than 8 hours for construction of the sanitary sewer across the road. It was agreed that this would not be enough time and that closing the road for up to a week would provide enough time to get the open -cut sewer installed and backfilled and replace the concrete pavement with a temporary asphalt pavement patch. This would also provide for replacement of the asphalt patch and the concrete pavement that may be damaged due to the crossing of the road with off-road earth moving equipment. Seippel Road shall not be closed more than two times during the project and for no more than a total of 7 calendar days. All permitting and signage shall be the responsibility of the Contractor and shall be in accordance with all federal, state, and local requirements and the requirements of the latest edition of FHWA's Manual on Uniform Traffic Control Devices. The road shall be closed at Cottingham Road and at Cousins Road. A detour shall be set up to direct traffic from Cottingham Road, north on Seippel Road, East on Olde Highway Road, south and west on US 20, and west on Seippel Road to Cousins Road, as well as in the reverse direction. All "detour" signs shall be installed with the words "Seippel Road" directly under the detour sign. 8. REVISED BID SCHEDULE The bid schedule has been revised and included with this addendum. Bidders are required to submit the revised bid schedule. \`\\.\``o c ;. s s / p N'' /,,�� `,�.� Q�, �, %i'' 1 r,,, q� %,, o ; 1 z = WANDSNIDER = z _ - v 12868' �', * ,,',,,,,,,,,\" ` , :s �' %,,.,, / 0 Vy Q� ``��`� 'i"r,,,,i„tis��" SEAL I hereby certify that this engineering document was prepared by me or under my direct personal supervision and that I am a duly licensed Professional Engineer under the laws of the State of Iowa. FOR IIW, P.C. //, j� J24-1(JYCI J F. Wandsnider, P.E. License Number 12868 My license renewal date is December 31, 2013 Pages or sheets covered by this seal: Addendum No. 1 D to BIDDER agrees to perform all the work described in the CONTRACT DOCUMENTS for the following unit prices or indicated sums: CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 NOTE: Bids shall EXCLUDE sales tax and all other applicable taxes and fees UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE MISCELLANEOUS SITE DEMO 1 Mobilization & Miscellaneous 2 Traffic Control 3 Substructure Removal - Building 1 (including building debris) 4 Substructure Removal - Building 2 (including building debris) 5 Substructure Removal - Building 3 (including building debris) 6 Substructure Removal - Building 4 (including building debris) 7 Substructure Removal - Building 5 (including building debris) 8 Substructure Removal - Building 6 (including building debris) 9 Substructure Removal - Silo 1 10 Substructure Removal - Bin 1 11 Plug and Fill 18" RCP 12 Fence Removal and Disposal 13 De- Energize and Remove Utility Poles 14 Well Abandonment 15 Remove Septic Tanks 16 PCC - 9" Remove and Replace 17 Temporary Pavement Patch - 1" HMA on 12" Stone Base 18 Coordination for Work Around BP Petroleum Line EROSION CONTROL 19 Misc. Erosion Control 20 Seed & Fertilize Slopes w/ Wild Flowers & Native Prairie Grass 21 Seed & Fertilize - Rural 22 Mulch 23 Seed & Fertilize - Temporary 24 Temporary Sedimentation Basin 25 Silt Fence 26 Silt Fence - Removal 27 Erosion Stone 28 Riprap - Energy Dissipaters 29 Engineering Fabric - Energy Dissipaters 30 Turf Reinforcement Mat 31 Rolled Erosion Control Product This bid schedule accompanies the bid of Bid Proposal Page 1 of 5 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 1 LS 8,680 LF 1 LS 1 EA 1 LS 312 SY 1 LS 1 LS 1 LS 22 AC 87 AC 212 AC 109 AC 4 EA 1,510 LF 1,510 LF 207 TON 510 TON 107 SY 1,038 SY 1,871 SY B -1 8 NO. DESCRIPTION EROSION CONTROL (continued) 32 Stone Check 33 Check Dam 34 Sediment Trap 35 Sediment Basin 36 Inlet Protection 37 Bench Outlet Erosion Stone 38 Diversion Berm - Minor 39 Diversion Berm - Major 40 Construction Exit EXCAVATION 41 Excavation, Class 10 42 Excavation, Class 12 43 Excavation & Stockpile Unsuitable Material 44 Excavation & Spread Unsuitable Material 45 Clearing & Grubbing 46 Topsoil - Strip & Stockpile (12 ") 47 Topsoil - Spread 48 Clay Cone 49 Subdrain Tile W /Rock 50 3" Modified Macadam 51 Low Flow Channel 52 Geogrid STORM SEWER 53 18" RCP Storm Sewer CL 2000D 54 18" FES 55 18" Checkmate Check Valve 56 24" RCP Storm Sewer CL 2000D 57 24" FES 58 30" RCP Storm Sewer CL 2000D 59 30" FES 60 36" RCP Storm Sewer CL 2000D 61 36" FES 62 42" RCP Storm Sewer CL 2000D 63 42" FES 64 48" RCP Storm Sewer CL 2000D 65 48" FES 66 Trench Stabilization Stone 67 48" Storm Manhole Base 68 48" Storm Manhole Wall 69 48" Cone Grate Trash Rack This bid schedule accompanies the bid of Bid Proposal Page 2 of 5 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 UNIT TOTAL QUANTITY PRICE PRICE 35 EA 6 EA 3 EA 4 EA 21 EA 80 TON 11,610 LF 9,040 LF 2 EA 834,900 CY 500 CY 81,000 CY 23,000 CY 4 AC 33,000 CY 58,000 CY 1 LS 13,073 LF 7,464 TON 538 LF 6,380 SY 111 LF 1 EA 1 EA 66 LF 1 EA 105 LF 1 EA 396 LF 1 EA 304 LF 2 EA 41 LF 1 EA 30 TON 1 EA 10 VF 1 EA B -2 9 NO. DESCRIPTION STORM SEWER (continued) 70 72" Storm Manhole Base 71 72" Storm Manhole Wall 72 72" Cone Grate Trash Rack 73 84" Storm Manhole Base 74 84" Storm Manhole Wall 75 84" Cone Grate Trash Rack 76 84" Slab Top with Grate 77 Detention Outlet Structure 1 78 Detention Outlet Structure 2 79 Detention Outlet Structure 3 SANITARY SEWER 80 8" DIP Class 51 81 12" DIP Class 51 82 48" ID Manhole Base 83 48" ID Manhole Sidewall 84 Manhole Frame & Cover 85 Connection to Existing Sewer Manhole Stub 86 Select Backfill 87 Trench Stabilization Stone BASE BID TOTAL (Basis of Award) ALTERNATE 1 Sanitary Sewer A1-1 12" DIP Class 51 A1-2 48" ID Manhole Base A1-3 48" ID Manhole Sidewall A1-4 Manhole Frame & Cover ALTERNATE 1 TOTAL ALTERNATE 2 Sanitary Sewer A2 -1 8" DIP Class 51 A2 -2 48" ID Manhole Base A2 -3 48" ID Manhole Sidewall A2 -4 Manhole Frame & Cover ALTERNATE 2 TOTAL This bid schedule accompanies the bid of Bid Proposal Page 3 of 5 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID SCHEDULE REVISED PER ADDENDUM NO. 1 QUANTITY 2 EA 23 VF 2 EA 2 EA 17 VF 1 EA 1 EA 1 EA 1 EA 1 EA 1680 LF 1607 LF 14 EA 144 VF 14 EA 1 EA 60 LF 100 TON 1199 LF 5 EA 59 VF 5 EA 576 LF 3 EA 30 VF 3 EA UNIT PRICE BID FORM 1A TOTAL PRICE B -3 J0 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE ALTERNATE 3 Sanitary Sewer A3 -1 8" DIP Class 51 A3 -2 48" ID Manhole Base A3 -3 48" ID Manhole Sidewall A3 -4 Manhole Frame & Cover ALTERNATE 3 TOTAL ALTERNATE 4 Sanitary Sewer A4 -1 18" DIP Class 51 A4 -2 48" ID Manhole Base A4 -3 48" ID Manhole Sidewall A4 -4 Manhole Frame & Cover ALTERNATE 4 TOTAL ALTERNATE 5 Sanitary Sewer A5 -1 8" DIP Class 51 A5 -2 48" ID Manhole Base A5 -3 48" ID Manhole Sidewall A5 -4 Manhole Frame and Cover ALTERNATE 5 TOTAL This bid schedule accompanies the bid of Bid Proposal Page 4 of 5 890 LF 3 EA 23 VF 3 EA 1061 LF 3 EA 46 VF 3 EA 928 LF 3 EA 22 VF 3 EA B -4 BIDDER agrees to perform all the work described in the CONTRACT DOCUMENTS for the following unit prices or indicated sums: CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID SCHEDULE REVISED PER ADDENDUM NO. 1 NOTE: Bids shall EXCLUDE sales tax and all other applicable taxes and fees BID FORM 1A UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE MISCELLANEOUS SITE DEMO 1 Mobilization & Miscellaneous 1 LS $30,000.00 $30,000.00 2 Traffic Control 1 LS $6,000.00 $6,000.00 3 Substructure Removal 1 LS $5,000,00 $5,000.00 4 Plug and Fill 18" RCP 1 LS $2,000.00 $2,000.00 6 Fence Removal and Disposal 1 LS $4,536.00 $4,536.00 6 Well Abandonment 1 EA $755.00 $755.00 7 Remove Septic Tanks 1 LS $1,000.00 $1,000.00 8 PCC - 9" Remove and Replace 312 SY $45.00 $14,040.00 9 Temporary Pavement Patch -1" MA on 12" Stone Base 1 LS $3,000.00 $3,000.00 10 Coordination for Work Around BP Petroleum Line 1 LS $5,025.00 $5,025.00 EROSION CONTROL 11 Misc. Erosion Control 1 LS $12,000.00 $12,000.00 12 Seed & Fertilize Slopes w/ Wild Flowers & Native Prairie Grass 22 AC $2,713.50 $59,697.00 13 Seed & Fertilize - Rural 87 AC $1,000.00 $87,000.00 14 Mulch 212 AC $165.00 $32,860.00 15 Seed & Fertilize - Temporary 109 AC $25.00 $2,725.00 16 Temporary Sedimentation Basin 4 EA $300.00 $1,200.00 17 Slit Fence 1,510 LF $1.00 $1,610.00 18 Silt Fence - Removal 1,510 LF $0.10 $151.00 19 Erosion Stone 207 TON $17.00 $3,519.00 20 Riprap - Energy Dissipaters 510 TON $17.50 $8,925.00 21 Engineering Fabric - Energy Dissipaters 107 SY $2.00 $214.00 22 Turf Reinforcement Mat 1,038 SY $3.60 $3,633.00 23 Rolled Erosion Control Product 1,871 SY $2.25 $4,209.75 24 Stone Check 35 EA $500,00 $17,500.00 25 Check Dam 6 EA $760.00 $4,500.00 26 Sediment Trap 3 EA $525.00 $1,675.00 27 Sediment Basin 4 EA $500.00 $2,000.00 28 Inlet Protection 21 EA $25.00 $525.00 29 Bench Outlet Erosion Stone 80 TON $25.00 $2,000.00 30 Diversion Berm - Minor 11,610 LF $0.25 $2,902.50 31 Diversion Berm - Major 9,040 LF $0.25 $2,260.00 32 Construction Exit 2 EA $2,500.00 $5,000.00 This bld schedule accompanies the bid of Tom Kueter Const Co Inc C5'' Bid Proposal Page 1 of 5 B -1 I3 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE EXCAVATION 33 Excavation, Class 10 834,900 CY $1.62 $1,352,538.00 34 Excavation, Topsoil & Unsuitable Material 137,000 CY $1.00 $137,000.00 35 Clearing & Grubbing 4 AC $4,000.00 $16,000.00 36 Clay Core 1 LS $5,000.00 $5,000.00 37 Subdraln Tile W /Rock 13,073 LF $7.70 $100,662.10 38 3" Modified Macadam 7,464 TON $12.00 $89,568.00 39 Low Flow Channel 538 LF $5.00 $2,690.00 40 Geogrid 6,380 SY $2.00 $12,760.00 STORM SEWER 41 18" RCP Storm Sewer CL 2000D 111 LF $20.00 $2,220.00 42 18 "FES 1 EA $700.00 $700.00 43 18" Checkmate Check Valve 1 EA $4,600.00 $4,500.00 44 24" RCP Storm Sewer CL 2000D 66 LF $39.00 $2,574.00 45 24" FES 1 EA $750.00 $750.00 46 30" RCP Storm Sewer CL 2000D 105 LF $48.00 $5,040.00 47 30" FES 1 EA $800.00 $800.00 48 36" RCP Storm Sewer CL 2000D 396 LF $53.04 $20,988.00 49 36" FES 1 EA $1,120.00 $1,120,00 50 42" RCP Storm Sewer CL 2000D 304 LF $72.50 $22,040.00 51 42" FES 2 EA $1,200,00 $2,400.00 52 48" RCP Storm Sewer CL 2000D 41 LF $117.00 $4,797.00 53 48" FES 1 EA $1,700.00 $1,700.00 54 48" Storm Manhole Base 1 EA $1,250,00 $1,250.00 55 48" Storm Manhole Wall 10 VF $88.00 $880.00 56 48" Cone Grate Trash Rack 1 EA $775.00 $775.00 57 72" Storm Manhole Base 2 EA $1,500.00 $3,000.00 58 72" Storm Manhole Wall 23 VF $240.00 $5,520.00 59 72" Cone Grate Trash Rack 2 EA $1,350.00 $2,700.00 60 84" Storm Manhole Base 2 EA $2,000.04 $4,000,00 61 84" Storm Manhole Wall 17 VF $330.00 $5,610.00 62 84 " Cone Grate Trash Rack 1 EA $1,755.00 $1,755.00 63 84" Slab Top with Grate 1 EA $1,276.00 $1,275.00 64 Detention Outlet Structure 1 1 EA $2,250.00 $2,250.00 65 Detention Outlet Structure 2 1 EA $1,400,00 $1,400.00 66 Detention Outlet Structure 3 1 EA $4,250.00 $4,250.00 This bid schedule accompanies the bid of Bid Proposal Page 2 of 5 Tom Kueter Const Co Inc es`( B -2 NO. DESCRIPTION SANITARY SEWER 67 8" DIP Class 51 68 12" DIP Class 51 69 48" ID Manhole Base 70 48" ID Manhole Sidewall 71 Manhole Frame & Cover 72 Connection to Existing Sewer Manhole Stub 73 Select Back('II 74 Trench Stabilization Stone BASE BID TOTAL (Basis of Award) ia- CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 UNIT TOTAL QUANTITY PRICE PRICE 1680 LF $31.75 $53,340.00 1607 LF $46.50 $74,725.50 14 EA $1,250.00 $17,600.00 144 VF $87.50 $12,600.00 14 EA $730.00 $10,220.00 1 EA $2,000.00 $2,000.00 60 LF $50.00 $3,000.00 100 TON $40.00 $4,000.00 $2,325,159.85 ALTERNATE 1 Sanitary Sewer A1-1 12" DIP Class 51 1199 LF $50.00 $59,950.00 A1-2 48" ID Manhole Base 5 EA $1,500.00 $7,500.00 A1-3 48" ID Manhole Sidewall 69 VF $110.00 $6,490.00 A1-4 Manhole Frame & Cover 5 EA $730.00 $$,650.00 ALTERNATE 1 TOTAL $77,590.00 ALTERNATE 2 Sanitary Sewer A2 -1 8" DIP Class 51 576 LF $42.00 $24,192.00 A2 -2 48" ID Manhole Base 3 EA $1,500.00 $4,500.00 A2 -3 48" ID Manhole Sidewall 30 VF $110.00 $3,300.00 A2-4 Manhole Frame & Cover 3 EA $730.00 $2,190.00 ALTERNATE 2 TOTAL $34,182.00 ALTERNATE 3 Sanitary Sewer A3 -1 8" DIP Class 51 890 LF $42.00 $37,380.00 A3 -2 48" ID Manhole Base 3 EA $1,500.00 $4,500.00 A3 -3 0'10 Manhole Sidewall 23 VF $110.00 $2,530.00 A3 -4 Manhole Frame & Cover 3 EA $730.00 $2,190,00 ALTERNATE 3 TOTAL $46,600.00 This bid schedule accompanies the bid of Bid Proposal Page 3 of 5 Tom Kueter Const Co Inc B -3 145 CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID FORM 1A BID SCHEDULE REVISED PER ADDENDUM NO. 1 UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE PRICE ALTERNATE 4 Sanitary Sewer A4 -1 18" DIP Class 51 A4 -2 48" ID Manhole Base A4 -3 48" ID Manhole Sidewall A4 -4 Manhole Frame & Cover ALTERNATE 4 TOTAL 1061 LF 3 EA 46 VF 3 EA $80.00 $1,500.00 $110.00 $730.00 $84,880.00 $4,500.00 $5,060.00 $2,190.00 $96,630.00 ALTERNATE 5 Sanitary Sewer A5 -1 8" DIP Class 51 928 LF $42,00 $38,976.00 A5 -2 48" ID Manhole Base 3 EA $1,500.00 $4,600.00 A5 -3 48" ID Manhole Sidewall 22 VF $110.00 $2,453.00 A5 -4 Manhole Frame and Cover 3 EA $730.00 $2,190.00 ALTERNATE 5 TOTAL $48,119.00 ALTERNATE 6 Excavation A6 -1 Topsoil, Spread This bid schedule accompanies the bid of Bid Proposal Page 4 of 5 5,000 CY $1.65 $8,250.00 Tom Kueter Const Co Inc B -4 ' CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID BOND KNOWN ALL MEN BY THESE PRESENTS, that we Tom Kueter Construction Co . , Inc. as Principal, and Granite Re, Inc. , as Surety, are held and firmly bound unto the unto the City of Dubuque Iowa (the City), in the penal sum of Ten Percent of Bid Amount (10% of Bic) in lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. The condition of this obligation is such that whereas the Principal has submitted the accompanying bid, dated the 21st . day of June , 2012, for the Dubuque Industrial Center South Grading and Utilities 2012 Phase I Rebid protect, * *Please Note: Bid Amount May Not Exceed $4,2D,00.00 ** NOW, THEREFORE, If the Principal shall not withdraw said bid within the period specified therein during the opening of same, or if no period specified, within thirty (30) days after said opening, and shall within the period specified therefore, if no period be specified, within ten (10) days after the prescribed forms are presented to it for signature, enter into a written contract with the City of Dubuque, in accordance with the bid as accepted, and give bond with good and sufficient surety or sureties, as may be required for the faithful performance and proper fulfillment of such contract, then the above obligation shall be void and of no effect, otherwise to remain in full force and virtue. By virtue of statutory authority, the full amount of this bid bond shall be forfeited to the City In liquidation of damages sustained in the event that the afore described bidder, Principal, falls to execute the contract and provide the bond as provided in the specifications or by law. IN WITNESS WHEREOF the above bounden parties have executed this Instrument under their several seals this 1 day of June , 20 1 ?the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of Its governing body. PRINCIPAL: Tom Kueter Construction Co., Inc. Si nature Title June 14, 2012 Date C -1 SURETY: By: Granite Re, Inc. Surety Compa Signatur= Jonathan Pate Attorney -in -Fact Title June 14, 2012 Date 1 C CITY OF DUBUQUE, IOWA DUBUQUE INDUSTRIAL CENTER SOUTH GRADING AND UTILITIES 2012 PHASE I REBID BID FORM 1B BID PROPOSAL The bidder hereby certifies that the bidder is the only person or entity interested in this proposal as principal; that an examination has been made of the plans, specifications, and contract form, including the special provision contained herein, and of the site of the work, and the bidder understands that the quantities of work shown herein are approximate only and are subject to increase or decrease; and further understands that all quantities of work, whether increased or decreased, are to be performed at the unit price as stipulated herein; the bidder proposes to furnish all necessary machinery, equipment, tools, labor and other means of construction, and to furnish all materials specified in the manner and time prescribed and to do the work at the prices herein set out. Accompanying this proposal in a separate envelope is a cashier's or certified check payable to the City Treasurer, City of Dubuque, drawn on a bank in Iowa or a bank chartered under the laws of the United States, in the amount of ten percent (10 %) of the bid submitted; or a bid bond in the penal sum of ten percent (10 %) of the bid submitted executed by the bidder and an acceptable corporate surety. It is understood that this proposal guarantee will be retained in the event the formal contract or bond is not executed, if award is made to the undersigned. The bidder further agrees to execute a formal contract and bond, if required by the contract documents, within seven (7) days of the award of the contract by the City Council, and that the bidder will commence work on or about ten (10) days after the date of the contract, and will complete the work within the specified contract period or pay the liquidated damages stipulated in the contract documents. The bidder acknowledges receipt of the following addendum: Dated: 1911- 26/2 Dated: Dated: cAAU e4/1_ LA-W1 PRINCIPAL: CL Contractor Individual ( ) Part By: /0�y3 C 2;A9 Address ership ( ) Corporation QC) City State Signatur Title - Date Ck S2_o03 Zip ZC3/ 2 / Note: To be completed by out of State bidders. The State of does ( ) / does not ( ) utilize a percentage preference for in state bidders. The amount of preference is percent. Bid Proposal Page 5 of 5 B -5 1"/ r. • Pubi ic O Guide _ icy LegA I ttc s on the Biddin and Award o[ Cony ti uc,tion Contracts in Iowa Pad fti(JI Lid Anteric n Institute of :Arctutect', (1111 iptei l \tr7ei'icrtrl Council of Ene,irieerini,; Coni )anies irf Iki1:'v i 1'I i ter l;aiilders of Iowa Public Owners' Guide to Legal Issues on the Bidding and Award of Construction Contracts in Iowa Volume I, Edition I Published April 2006 TABLE OF CONTENTS INTRODUCTION 3 SECTION 1 DESIGN / BID / BUILD — IOWA-'S PUBLIC SECTOR DELIVERY METHOD 4 IMPORTANT TERMS ASSOCIATED W/ D ESIGN / BID / BUILD PROJECT DELIVERY SYSTEM4 Construction Documents 4 Contract Documents 4 Lump Sum Fixed Price 4 Competitive Bidding 4 Responsive Bid 5 Responsible Contractor 5 Summary & Overview — Design / Bid / Build Method & Structure 5 THE LEGAL ENVIRONMENT FOR THE ROLES & RESPONSIBILITIES FOR THE OWNER, DESIGNER AND CONTRACTOR ON A DESIGN / BID / BUILD PROJECT 6 The Owner's Roles and Responsibilities 6 The Designer's Role and Responsibilities 7 The General Contractor's Roles and Responsibilities 8 COMMON LEGAL ISSUES ARISING FROM IOWA C OMPETITIVE BIDDING LAWS 8 Public Bidding Threshold 8 Competitive Quotations for Projects Under $100,000 9 Bid Solicitation and Advertisement , 9 Proprietary or Sole- Source Specifications 9 Excessive Use of Alternates 9 Retainage 10 Contractor Qualification 10 Contractor Reg_ istration Requirements 10 Bid Bonds 11 Payment and Performance Bonds 11 Project Labor Agreements 11 Local Preference 11 In -State Preferences 11 Davis -Bacon Act 11 Waiver of Bid Irregularities 12 Bid Mistakes 12 Bid Challenges 12 Negotiating after the Bid Opening 13 Performance Contracting 13 Design / Build Project Delivery Method 13 CM at Risk / Guaranteed Maximum Price 13 FREQUENTLY ASKED QUESTIONS ABOUT DESIGN / BID / BUILD 15 SECTION 2 AGENCY FORM OF CONSTRUCTION MANAGEMENT 17 Fundamental Characteristic of Agency CM 17 Warranty Limitations 17 Insurance and Related Issues 17 Summary — CM Structure Services Overview 17 OTHER LEGAL ISSUES / SUMMARY 18 Conflicts of Interests / Self Perfo rming of Work . , 18 Bid Packages 18 Bonding & Liability Issues 18 No Bids Received 18 Appendix A i Appendix B vi Appendix C vii Appendix D viii INTRODUCTION The purpose of this guide is to provide public owners at all levels a better understanding of Iowa's competitive bidding laws as they relate to the bidding and award of public works construction projects. The contributing parties undertook this initiative with the understanding that there is a continual need for education on this subject. This Resource Guide will focus primarily on the design / bid / build project delivery system required by Iowa law for most public contracts. Public owners will be served better by a thorough understanding of how this particular project delivery system works with an emphasis on the legal pitfalls along the way to a successful construction project. This Resource Guide will also touch on various legal issues which may arise for owners considering the use of construction management advisors in the building process. Contributing Associations: MEM /r 4 •. . -• - Ill I/1 • � s1. ACEC '.,1. .r (,.1 - -.11 , o A ,..1 v 11\i. t 1,:r% ,e of Master Builders of Iowa www.mbionline.com 515- 288 -8904 American Institute of Architects, Iowa Chapter www.aiaiowa.org 515- 244 -7502 American Council of Engineering Companies of Iowa www.iaengr.org 515 - 284 -7055 Acknowledgements: Special thanks to the AGC of America, and John A. Templer, Jr., of the West Des Moines law firm of Whitfield & Eddy, P.L.C. for their help in assembling this Resource Guide. WHITFIELD EDDY P.LC. *Disclaimer. Nothing contained in this work shall be considered to be the rendering of legal advice on specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This work in any form herein, is intended solely for educational and informational purposes. 3 Volume 1, Edition 1, April 2006 APPENDIX A WAIVER OF BM IRREGULARITIES Authored by John A. Templer, Jr. Whitfield & Eddy, PLC West Des Moines, IA 515 558 0111 Note: This document is presented without Legal citations in that it was prepared primarily for the benefit of laypersons; however, most of the principles discussed herein are addressed in the main body of the Resource Guide. Some of the principles are also based on case authority from other jurisdictions that were used when no Iowa cases which were on -point could be found. The author believes that these cases would be instructive to an Iowa court should similar issues arise in this state. Citations are available from the author upon request. "The owner reserves the right to waive irregularities in the bids." There are no words which cause more consternation in the public bidding arena than the preceding sentence. Master Builders of Iowa and its legal counsel field more questions on this subject than perhaps on any other issue. And lately, as more young architects and engineers enter public service as the old guard retires, a whole new generation of owner's representatives needs to learn the basics of public bidding law. In this article we will explore the law as it relates to the issue of the owner's right to waive irregularities in the bid. Before we get into the heart of this subject, we need to discuss several basic rules for public bidding. There are two primary considerations in awards of public contracts: bidder responsibility and bidder responsiveness. Bidder responsibility is essentially whether a bidder on a public contract will be able to perform the contract. Considerations in determining whether a bidder is responsible include the experience of the bidder, financial condition, conduct and performance on previous contracts, facilities management skills, and the ability to properly execute the contract. Bid Responsiveness The main focus of this article, however, is on bidder responsiveness. A bid is said to be "responsive" when it substantially complies with the specs and requirements set out in the invitation to bid (ITB) or the request for proposals (RFP). Responsiveness is determined at the time of bid opening, and a non- responsive bid at the time of opening cannot subsequently be made responsive. This is one reason why language in the ITB which purports to give the owner the right to waive "any and all" bid irregularities is meaningless. Some bid defects are non- waivable, regardless of what the ITB says. Non- responsive bids should be immediately rejected and not even entered on the bid, tabulation. Of course, the problem that frequently arises is that while a bid may seem non- responsive, the public owner may believe it has the right to waive the irregularity. This is too -often the result when an owner reads a seemingly nonresponsive bid only to find that it would be the low bid if not declared nonresponsive. So when can an owner waive a bid irregularity? Courts often refer to a deviation amounting to a non - responsive bid in terms of its being "material." In general, if the deviation is material, it cannot be waived by the public owner, no matter how good the price may look (or no matter what the ITS says.) As will be explained in more detail below, a material deviation occurs when one bidder gains a substantial competitive advantage as a result of the bidder's deviation from the requirements of the bid invitation. Public Owners' Guide to Legal Issues on the Bidding and Award of Construction Contracts in Iowa Deviations highly technical in nature, or in unique situations, are less likely to cross the threshold into material deviation. Also, as stated by one court, a mistake is not material and therefore is waivable if the deviation is not "capable of facilitating corruption or extravagance, or likely to affect the amount of bids or the response of potential bidders." In considering whether a technically non- compliant bid could be accepted or cured, there are essentially two relevant factors for the owner to consider. First, it must be determined whether the effect of a waiver would deprive the public entity of its assurance that the contract will be entered into and performed in accordance with the specifications. Second, is a consideration of whether the waiver would adversely affect the competitive bidding process by placing one bidder in a position of competitive advantage? Competitive Advantage The proper test for determining whether the bid defect creates a competitive advantage is "whether the contract, with the defect included, would have afforded [the bidder] an advantage over its competitors." A public entity has no discretion to waive non - compliance with a specification where doing so would affect the bid price, or give one bidder a competitive advantage. For example, in one case, the bid documents required the prospective project to offer 50 parking spaces. One bidder's proposal lacked the requisite number of spaces, thus giving it a competitive advantage over other bidders whose bids included the necessary parking. Any time a bidder is allowed to avoid an otherwise mandatory bid requirement and other bidders are not afforded the same opportunity there is a competitive advantage for that bidder: Waiver of Minor Irregularities Minor - not material - irregularities in a bid may be waived. An irregularity is considered minor when the effect on price, quantity, quality, or delivery is negligible compared to the total cost. Examples of minor irregularities include: failure to submit the correct number of copies, lack of signature where other documents indicate bidder's commitment to be bound, and in some instances failure to acknowledge addenda. The public entity must be wary that in granting a waiver of deviation, it does not afford a "last look" to one bidder at the expense of others. Also, a public owner has no discretion to waive a defect where it would violate statutes or city ordinances on competitive bidding requirements. Some irregularities or defects in bids are more likely, perhaps even presumed, to be material. Anything that affects bid price is not a minor irregularity that can be waived. Moreover, the completion date is a material aspect of the bid. In one Iowa case where a bid required a completion date of Nov. 1, and the bid contained a Dec. 1 completion date, the bid was deemed non- responsive, as the completion date was declared to be material. The bidder may not alter or append the bid after it has been opened to bring it into compliance, for example by providing an important signature that was omitted from the original bid. Of course, bids must be signed to create a binding contract unless it can be determined from other bid documents that the bidder intends to be bound. When revisions to a bid are made before it is submitted, such as handwritten changes in the numbers or other information "whited- out," some states like Minnesota require that the changes be initialed or signed, or the bid is deemed non - responsive. When there is a substantial difference between the materials required in the specifications and those described in the bid, the bid is nonresponsive. If the specifications require a particular level of performance or specify a brand name, bids that offer a product not in compliance with the specifications are subject to rejection. (Of 11 Volume 1, Edition 1, April 2006 course, the problems associated with "sole- source" procurement would itself be a suitable topic for a future article for this publication.) The public owner after opening the bids may not permit a substitution of materials. Bid Bond Irregularities Failure to submit a proper bid bond with the bid is a material deviation rendering a bid non- responsive. Iowa law requires a proposal guarantee consisting of either a bid bond or a form of certified check. Also, the bond must be in the proper form. Where a bidder omitted the penal sum on a bid bond, the bid was declared non- responsive, and the bidder was neither allowed to explain the omission as a clerical error nor alter the bid to make it compliant. Another incident involved a photocopied power of attorney, rather than an original. Thus the bid failed to provide sufficient authority to bind the surety rendering the bid non - responsive. A third example concerned the omission of the bond commitment and period of bid validity. In these situations, the bids were held to be non - responsive. Other Examples of Irregularities State laws or regulations often provide instances where irregularities mandate the rejection of a bid. For example, under Iowa DOT regulations, "[pjroposals will be considered irregular and may be rejected for any unauthorized changes in the proposal form or for any of the following reasons:" A. If on a form other than that furnished by the Contracting Authority, or if the form is alt ered or any part thereof detached, B. If there are any unauthorized additions, conditional or alternate bids, or irregularities of any kind which may tend to make the proposal incomplete, indefinite, or ambiguous as to its meaning, C. lithe bidder adds any provisions reserving the right to accept or reject an award because of being low bidder on another proposal in the same letting, D. If the bidder adds any provisions reserving the right to accept or reject an award or to enter into contract pursuant to an award, E. If a bid on one proposal is tied to a bid on any other proposal, except as specifically authorized on the proposal form by the Contracting Authority, F If the proposal does not contain a unit price for each pay item listed, except in the case of authorized alternate pay item. Iowa DOT Standard Specifications 1102.10 (2001). Clerical Errors As all rules are subject to exception, some defects can be material and still waivable at the discretion of the public entity. The rules for this type of situation parallel those for the determination of when a low bidder can withdraw his bid if he discovers an error in the bid after the bids are opened. Regarding clerical errors there are at least two types of errors that are relevant to this discussion. The first is where there Is no latent mistake in an otherwise responsive bid. The mistake is obvious, making the bid facially non - responsive. However, the mistake is not material because it can be resolved by reference to information contained in other bid documents. One court has classified this kind of error as "one in the submission of a bid which does not support the release of the bidder." Related to this is the situation Where the mistake in the bid form is, so obvious that the owner could not have construed it as anything but a mistake. This does not contravene the regular rule that the lowest bidder be awarded the contract. Examples would include such things as misplaced decimal points, reversal of prices, and mistakes in the designation of units. The second type of problem is where the mistake is obvious and material and makes the bid facially non- responsive, but it cannot be resolved without reference to outside documents. In this situation the bid is non - 11.1. Public Owners' Guide to Legal Issues an the Bidding and Award of Construction Contracts in Iowa responsive, and must be rejected. For example, where a bidder failed to state the dollar amounts of work by subcontractors, and this could not be cured by information elsewhere in bid documents, the mistake was material and the bid was rejected. Clerical errors are waivable only in the first category - where the irregularity is a matter of "form and not of substance" and only when: 1) the bidder acted in good faith in submitting the bid, 2) in preparing the bid there was an error of such magnitude that enforcement of the bid would work severe hardship upon the bidder, 3) the error was not the result of gross negligence or willful intention, and 4) the error was discovered and communicated, along with a request to withdraw the bid before acceptance. The key distinction is whether the discovery of the mistake and the request for withdrawal is made before or after the contract is consummated. Under competitive bidding rules, a bid is firm, and remains so, until it is either accepted, or the time for accepting bids expires. In Iowa, a bidder may withdraw a bid until the time specified in the advertisement for receiving of proposals. They may not then be withdrawn until 30 days after the letting, unless, of course, a mistake is discovered and the mistake is such that withdrawal is permissible. See, for example, Iowa DOT Standard Specifications 1102.13 (2001). Timeliness If a bid is submitted late, it is virtually certain to be rejected, as this is not a waivable irregularity. A bid is late if it is "received in the office designated in the invitation for bids after the exact time set for opening." Timeliness of a bid is determined by time of receipt, not time of discovery of the bid by the owner. Under the late bid rule, bids may be considered if; 1) received prior to award, 2) late discovery was due primarily to government mishandling after receipt at the government installation, and 3) consideration of the bid would not compromise the integrity of the process because the bid was in the sole custody of the owner and therefore unalterable by the . bidder, from its receipt at the installation to its actual opening. For example, where a bid was delivered to Federal Express in a timely manner, but was late to the government installation due to the events of 941/2001, the bid was acceptable because bidder had neither an added competitive advantage nor an opportunity to alter its bid. Another unusual example of where a late bid was accepted was where three bidders were sent to the wrong location in the building where bids were to be received by a security guard, and were at that location before the time bids were due. This may be a unique situation, however, Most generally, when a bid is simply turned in late, there is little protection for the bidder. DBEs, MBEs, and WBEs Inclusion in bids of women -owned businesses (WBEs) and minority -owned businesses (MBEs), sometimes collectively known as disadvantaged business enterprises (DBEs), when mandated in the bid documents is often material. Certain Iowa regulations provide specific DBE requirements. See, for example, Iowa DOT Standard Specifications 1102.17 (2001). Filline in Blanks The general rule is that bid forms must be completely filled in. However, some minor discrepancies may be waivable. In some instances, it may be that failure to fill in a blank means that a bidder is willing to complete the task at no charge. This, of course; may not be the bidder's intention. For example, in a recent case, a bidder's omission of Mobilization cost could have been an indication that there would be no extra charge for mobilization, thus not creating a material deviation. Leaving blank spaces on a bid form is very dangerous. It iv Volume 1, Edition 1, April 2006 may give the owner a reason to assume the bidder meant "no charge" and accept the bid but bind the contractor to the original price. Different states have different interpretations of the materiality of leaving blank spaces on bid forms. In some states leaving a bid space blank or entering "no bid" is not substantial and the bid may still be considered responsive. Other states have differing views of the materiality of leaving bid items blank. Iowa's appellate courts have not yet had the opportunity to consider this issue. If the bid documents provide that all blanks must be filled in, or if specific language is required to be used, such as "no bid" when the bidder does not want to bid on an alternate, the bidder must adhere to the invitation or risk having the bid rejected. If the bid documents do not address the issue, the bidder should still avoid leaving any blank spaces. Acknowledging Addenda Characterization of some irregularities may differ from jurisdiction to jurisdiction. For instance, a bidder's failure to acknowledge receipt of addenda is immaterial in some states, such as Montana. Other jurisdictions disagree and consider the failure to acknowledge an addendum material, particularly if the addendum is a significant change to the contract requirements. Again, Iowa's courts have not yet ruled upon this issue. Conclusion A thorough understanding of the rules relating to bidding irregularities by both public owners and contractors will help to eliminate bid -time misunderstandings and ensure that the taxpayers' interests in the maintenance of the competitive bidding process continue to be protected. v •• PrtrocuN4 Page 1 of 3 Barry Lindahl - City of Dubuque, Iowa -- Dubuque Industrial Center South Grading and Utilities 2012 Phase 1 Rebid From: Todd Locher <tlocher @locherlaw.com> To: Barry Lindahl <balesq @cityofdubuque.org> Date: 6/27/2012 9:37 AM Subject: City of Dubuque, Iowa -- Dubuque Industrial Center South Grading and Utilities 2012 Phase 1 Rebid CC: Christopher Kueter <ckueter @qwestoffice.net> Dear Barry: represent Tom Kueter Construction, Inc. ( "Kueter Construction "). Kueter Construction is the low bidder on the above referenced project. I understand that John Wandsnider of IIW, PC, the engineer on the project, issued Addendum No. 1 dated January 19, 2012 and attached a revised Bid Schedule for all bidders to use. The due date for the bids was June 21, 2012 at 2:00 p.m. Chris Kueter of Kueter Construction received the Addendum and used the revised Bid Schedule to submit a bid. Kueter Construction's bid was submitted before the bid deadline expired. Kueter Construction's bid was submitted with a Bid Bond in the form required by the contract documents. Unfortunately, the Addendum provided by John Wandsnider did not contain a Bid Proposal form. Kueter Construction completed the revised Bid Schedule provided in Addendum No. 1 and Chris Kueter signed each page of the bid schedule on the bottom and submitted that Bid Schedule along with the Bid Bond on the forms specified in the contract documents and the addendum. Kueter Construction submitted its bid without the Bid Proposal form. For the reasons set forth herein, Kueter Construction's failure to submit the Bid Proposal was not a material defect. Iowa law permits the City of Dubuque to waive bid irregularities so long as a contractor has substantially complied with the bid and the contractor and no competitive advantage was conferred upon the bidder due to the bid irregularity. Urbany v. City of Carroll, 157 N.W. 852, 854 (Iowa 1916). In Urbany, the Iowa Supreme Court stated: The contract must be let to the lowest responsible bidder, and mere irregularities in the form of the bid will not justify its rejection, for these may be corrected in entering into the contract, after the bids are open. * ** The authorities agree that there must be a substantial compliance with the proposal to warrant the consideration of the bid, else bidding would not be on equal terms, and the advantages of competition lost. Id. See also, Scheckel v. Jackson County, 467 N.W.2d 286, 290 (Iowa Ct. App. 1991) ( "mere irregularities in the form of the bid do not justify rejection, but these irregularities may be corrected in entering into the contract after the bids are opened. "); Gaeta v. Ridley Sch. Dist., 788 A.2d 363, 368 (Pa. 2002)(A non - compliant bid for public work may be accepted or cured if its waiver would place a bidder in a position of advantage over other bidders or undermine the standard of competition.) file: / /C: \Documents and Settings \blindahl \Local Settings \Temp\XPgrpwise \4FEAD... 6/27/2012 Page 2of3 A recent treatise on public bidding addressed this issue and stated: Minor - not material - irregularities in a bid may be waived. An irregularity is considered minor when the effect on price, quantity, quality, or delivering is negligible compared to the total cost. Examples of minor irregularities include: failure to submit the correct number of copies, lack of signature where the other documents indicate bidders commit to be bound, and in some instances failure to acknowledge addenda. J. Templer, Public Owners' Guide to Legal Issues on the Bidding and Award of Construction Contracts in Iowa, Volume 1, Addition 1 Exhibit A (updated January 2009)(emphasis added) The unsigned Bid Proposal form at issue provides: (1) that the contractor agrees to perform all work set forth in the contract documents for the unit price set forth in the Bid Schedule, (2) states that the contractor is providing a bid bond in the amount of ten percent of the bid submitted and that the bid bond will be forfeited if the contractor refuses to sign the contract if it is awarded to the contractor and (3) that the contractor will sign the contract in seven days of the award and start work within ten days of the award. All of the commitments that are contained in the unsigned Bid Proposal were contained in Kueter Construction's bid. Specifically, the revised Bid Schedule submitted and signed by Kueter Construction contains the following language "Bidder agrees to perform all the work described in the contract documents with the following unit prices or indicated sums." Kueter Construction submitted a properly executed Bid Bond with its Bid Schedule. In the Bid Bond Kueter Construction agreed that it will not withdraw its bid and would enter into a written contract with the City of Dubuque "after the prescribed forms are presented to it" and "in accordance with the bid as accepted." The submitted Bid Schedule and Bid Bond indicates Kueter Construction's agreement with all of the the terms set forth in the Bid Proposal and the contract documents in general. Moreover, the irregularity at issue here does not give Kueter Construction a competitive advantage over any other bidder. Kueter Construction provided a unit price and total price for all items contained in the Bid Schedule and submitted a Bid Bond backed by an appropriate surety. Kueter Construction submitted a Bid Schedule that stated Kueter Construction agreed to "perform all work described in the contract documents" for the prices set forth in its Bid Schedule. By submitting the Bid Schedule along with the Bid Bond, Kueter Construction agreed to perform all of the work set forth in the contract documents at the prices specified in the Bid Schedule. For the reasons set forth herein, believes that any irregularity with regard to the bid of Tom Kueter Construction, Inc. is immaterial and should be waived by the City of Dubuque. look forward to your reply. Todd J. Locher LOCHER & LOCHER 202 2nd Avenue NW P.O. Box 7 Farley, IA 52046 Tel.: 563.744.3359 Fax.: 563.744.3350 e -mail: tlocher @locherlaw.com file: / /C: \Documents and Settings \blindahl \Local Settings \Temp\XPgrpwise \4FEAD... 6/27/2012 Page 3 of 3 IMPORTANT NOTICE: The information in this e-mail (and any attachment) is for the use of the designated recipient(s) only. This message may be privileged and confidential attorney /client communication. If you received this in error, any review, dissemination, distribution or copying of this message is strictly prohibited and may be covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 -2521, as well as other state and federal laws. If you have received this communication in error, notify the sender by reply e-mail and delete the original message (and attachments). IRS CIRCULAR 230 NOTICE: In compliance with U.S. Treasury regulations, any tax advise included in this communication cannot be used to avoid any U.S. Federal tax penalties or to promote, market or recommend to another any transaction or matter addressed herein. file: / /C: \Documents and Settings \blindahl \Local Settings \Temp\XPgrpwise \4FEAD... 6/27/2012 4owk 1-rwwt SIMMONS PERRINE MOYER BERGMAN PLC ATTORNEYS Robert E. Konchar Darrel A. Morf J. Scott Bogguss Janes E. Shipman Stephen .1. Holtman' Iris E. Muchmore Philip D. Brooks James A. Gerk Roger W. Stone Kevin J. Visser Randal J. Schuler William S. Vernon Eric W. Lani David W. Kubicek Matthew J. Brandes Michael McDonough' James M. Peters Mark H. Ogden Webb L. Wassmer Mark A. Roberts Chad M. VonKampen Gregory G. Williams Nicolas Abort- Assaly Allison M. Hefrern Lynn W. Hartman Kathleen A. Kleiman' Thomas D. Wolle Paul P. Morf Philip A. Burian' Christine L. Conover David J. Zylstra'' Thomas N. DeBoont Jason M. Steffens Mark J. Hersbergcr Matthew J. Adapt Robert S. Hatala Amanda M. D'Amlco Carrie L. Thompson COUNSEL RETIRED Jacob R. Koller Travis J. Schroeder Larry G. Guts' William A. Bergman Jeffrey K. Paul 1). Games Richard G. lineman, McGinness' Charles J. Krogmeicr Jr. REGISTERED Brian J. Fagan Laura E. Seaton PATENT Abbe M. Stensland Chad D. Brakhahn OF COUNSEL ATTORNEYS Kyle W. Wilcox` Lisa A. Stephenson Stephen C. Nelson Gregory G. Williams Jeffrey A. Stone James R. Snyder Christopher J. Voce' Matthew J. Hawn' Carrie L. Thompson Kerry A. Finley` Christopher J. Von" Dawn M. Gibson Susan H. Willey` Writer's email: rhatala(crsimmonsperrine.com July 11,2012 City of Dubuque c/o Mr. Barry Lindahl 50 W. 13th Street Dubuque, IA 52001 Re: Dubuque Industrial Center South Grading and Utilities 2012 Dear Mr. Lindahl: We represent C.J. Moyna with respect to the bidding on this project. I have had the opportunity to review the Bid Schedule, Bid Bond and Bid Proposal submitted by Kueter. Although Kueter submitted unsigned pages 1 -4 of the Bid Schedule by the June 21, 2012, 2:00 p.m. deadline, the signed Bid Proposal (page 5) was not submitted until on or after June 28. The failure of Kueter to submit the required signed Bid Proposal is a material bid irregularity nonresponsive to the bid requirements that cannot be waived. Although, the City of Dubuque can waive minor irregularities, the failure to submit a signed Bid Proposal goes beyond a mere irregularity. Without a signed Bid Proposal, there is no bid at all. First, Kueter's complaint that the Addendum provided by John Wandsnider did not have a Bid Proposal form is not helpful to Kueter. All four of the other bidders submitted a signed Bid Proposal as required. Plus, each page of the four page Bid Schedule specifically states that it accompanies the Bid Proposal (page 5). Kueter's failure to provide a signed Bid Proposal can only be attributable to Kueter. Second, the cases cited by Kueter do not support waiving the failure to provide a signed bid proposal. In Urbane v. City of Carroll, 176 Iowa 217 (Iowa 1916), the low bid was rejected because the completion date submitted by the low bidder was December 1, 1916, rather than the specified November 1, 1916. The bid was rejected because the bid did not conform to the City's proposal. In Scheckel v. Jackson County, 467 N.W,2d 286 (Iowa App. 1991), the "defect" occurred when the low bidder used 150% rather than $1.50 per unit for clearing and grubbing. The court found the error a minor irregularity because when the 150% was converted to $1.50, the extended bid and total bid remained the same. Finally, in Gaeta v. Ridley Sch. Dist., 788 www.simmonsperrine.com • 115 Third Street SE, Suite 1200, Cedar Rapids, Iowa 52401 • Telephone (319) 366 -7641 • Fax (319) 366 -1917 ❑ City Center Square, 1100.5'" Street, Suite 205, Coralville, Iowa 52241 • Telephone (319) 354 -1019 • Fax (319) 354 -1760 Also Ikenred to practice irr. 1 Illinois 2 Wisconsin 3 Missaari 4 Kansas 5Kew York 6 Mlunerota 7Michigan &California 9A'ebraska Simmons Perrine Moyer Bergman PLC July 11, 2012 Page 2 A.2d 363 (Pa. 2002), the court found that a bid submitted with a bid bond rated "6" rather than at least an "A -" was acceptable because nothing presented "contextualizes this difference in terms of its effect upon the necessary assurance to the District given the bid bond's limited purpose, scope and duration," Gaeta at 369. "We find the circumstances distinguishable from those involving price discrepancies, failure to bid on all necessary terms, the omission of cost or performance items, and defects related to a performance bond, concerning which liability is generally of far greater magnitude." Gaeta at 369 citing 10 McQuillin Municipal corporations Section 29.65. The failure on the part of Kueter to submit the required signed Bid Proposal is of far greater magnitude than any of the cases cited. Not only does the Bid Proposal confirm that the bidder will execute a formal contract and bond, it "certifies" among other commitments, that "an examination has been made of the plans, specifications, and contract form, including the special provision continued herein, and of the site of the work and the bidder understands that the quantities of work shown herein are approximate only..." This certification is included in the Bid Proposal for a reason, and the failure to provide that certification is a significant deviation from the bid requirements. Third, other jurisdictions have determined that a bid submitted without a properly executed Bid Proposal form was nonresponsive and, therefore, unacceptable. In Ace - Manzo, Inc. v. The Township of Neptune, 609 A.2d 112 (NJ Sup. 1992), the court held that the failure to execute and submit a bid proposal constituted a material defect of a bid (where the bidder failed to complete and execute page 4 of the Bid Proposal form). In Ace - Manzo, the low bidder, North Brunswick, submitted a complete and executed page 4 three days after the bids were opened. In holding that the failure to execute the Bid Proposal is a material, nonwaivable defect, the Ace - Manzo court cited Cushman and Doyle Construction Bidding Law (1990), 6.13 at page 147, stating: Commentators have noted that "as a general rule, an unsigned bid will be rejected as non- responsive on the theory that it does not constitute a binding offer. The competitive advantage that inheres in such situation is obvious, for it would give such a bidder the option of waiting until it has had the benefit of knowing the other bidders' prices before deciding whether to sign and be bound or not sign and walk away." The Ace -Manzo court went on to state: With no effective signature on page 4 of the bid proposal, North Brunswick was not bound to its bid and therefore could walk away from the obligation to perform work on the project. North Brunswick could also await the bid opening, examine all other bids and then decide to sign the bid and be bound. This Simmons Perrine Moyer Bergman PLC July 11, 2012 Page 3 ability to manipulate the bidding process gave North Brunswick an unfair advantage over the other bidders and compromised fair competition. The required signature of a bidder on page 4 of the Bid Proposal is a material condition and cannot be waived. Ace -Manzo at 138. In addition to holding that the unsigned Bid Proposal was a material defect, the court also held that the rejection of all bids was arbitrary, capricious and an abuse of discretion. Ace -Manzo at 143. The court reasoned that mere disqualification of a low bidder does not in itself give a municipality the right to reject all bids as to do so would undermine competitive bidding and discourage competition. Ace -Manzo at 118. In Thigpen Construction Co., Inc. v. Parish of Jefferson, 560 S.2d 947 (La. Ct. App. 5th Cir. 1990), the low bidder failed to submit a signed bid form. The general terms required that the proposal be properly signed by the bidder. The Thigpen court in overturning the trial court held that it was error to find that Thigpen would have been bound had the Parish accepted its unsigned bid. Thigpen at 950. The Thigpen court further noted that where there is a substantial variance between a bid proposed and a bid accepted, there is no competitive bidding and the contract thus awarded as void. Thigpen at 952, In George W. Kennedy Construction Co., Inc. v. City of Chicago, 481 N.E.2d 913 (III. App. 3rd 1985), the Illinois court applied the test of "whether a bid variance gives a bidder a substantial advantage or benefit not enjoyed by other bidders" in holding that Kennedy's failure to submit a signed Bid Proposal was a material defect requiring rejection. In Kennedy, the Illinois Court of Appeals found that Kennedy was not bound to the terms of its bid and if it were awarded the contract, Kennedy could disavow it at any time. The court concluded that Kennedy's ability to disavow the contract would put Kennedy in a competitively advantageous position in relation to the other bidders. Equally important, the court refused to find that Kennedy's signature on the Bid Bond cured the defect in the bid. In AAB Electric, Inc. v. Stevenson Public School District, 491 P.2d 684 (Wash. App. 1971), the court rejected the bidder's argument that his Bid Bond adequately protected the school and should have accepted his bid even where the bid form was not signed. The court rejected the bidder's argument because "the general rule is that the surety is not liable to the creditor unless his principal is liable, thus he may plead the defenses which are available to his principal." AAB Electric at 687. The court reasoned the bidder, as principal, would not be liable to the school district because the unsigned bid could not legally have been accepted. AAB Electric at 687. In the present case, Kueter's bid must be rejected for the following reasons: 1. The Bid Proposal was to have provided timely certification that "an examination has been made of the plans, specifications and contract form, including the special provision contained herein, and of the site of the work, and the bidder understands that the quantities of work shown herein are approximate only and are subject to increase or decrease; and further Simmons Perrine Moyer Bergman PLC July 11, 2012 Page 4 understands that all quantities of work, whether increase or decrease, are to be performed at the unit prices stipulated herein; ..." Kueter's bid fails to provide the required certification. 2. Although the Bid Bond provides that it will be forfeited as liquidated damages if the principal fails to execute the contract, the Bid Bond is conditioned on the principal submitting a bid that complies with the bidding requirements. Because the principal bid did not submit a signed Bid Proposal, it did not meet the conditions of the Bid Bond. 3. Kueter's failure to submit a Bid Proposal fails to comply with the bidding requirements and fails to establish that it is bound, giving it a potentially unfair advantage. 4. Kueter's bid failed to follow the requirements as set out in the City of Dubuque's Engineering Standards and Specifications April 1995 Section 2 -4.00. Although the Standards allow for the waiver of irregularities of a Bid Proposal, where there is no Bid Proposal there can be no waiver. Because Kueter failed to submit a valid bid and rejecting all bids is arbitrary, capricious and unreasonable undermining the competitive bidding process, C.J. Moyne requests that the City reject the bid submitted by Kueter and award C.J. Moyna the contract as the lowest responsible bidder. Sincerely, SIMMONS PERRINE MOYER BERGMAN, P.L.C. ROBERT S. HATALA RSH:jw \arv..q2--'-s let-l-aucki Barry Lindahl - Fwd: Tom Kueter Construction, Inc. Page 1 of 2 From: Todd Locher <tlocher @locherlaw.com> To: Barry Lindahl <balesq @cityofdubuque.org> Date: 7/11/2012 6:41 PM Subject: Fwd: Tom Kueter Construction, Inc. CC: Christopher Kueter <ckueter @qwestoffice.net> Dear Barry: This will respond to your email of July 9. Yes, Tom Kueter Construction, Inc. ( "Kueter Construction ") will move forward with the work if awarded the contract. Kueter Construction is confident in the position that any alleged defect with the bid is minor and can be waived by the City. I also wish to respond to Robert Hatala's email to you dated July 5, 2012 and his letter dated July 11, 2012. Despite Moyna's assertions to the contrary, the Iowa Supreme Court specifically addressed this issue in Interstate Power Company v. Town of McGregor, 296 N.W.2d 770, 777 (Iowa 1941). In the Interstate Power case, the Town of McGregor received an unsigned bid for the construction of an electrical power plant for the town of McGregor. Id. at 771. Although the Town of McGregor ultimately rejected the bid, the Iowa Supreme Court stated that the Town of McGregor had the right to waive the defect caused by the contractor's failure to sign the bid. Id. at 774. Cases from other jurisdictions also support the fact that failure to sign a bid is a minor irregularity that may be waived. Farmer Construction v. State Department of General Administration, 656 P.2d 1086 (Wash. App. 1983); East Side Disposal Company v. City of Mercer Island, 513 P.2d 1047 (Wash. App. 1973); Prendergast v. City of St. Louis, 167 S.W. 970 (MO. 1914); Menefee v. County of Fresno, 163 Cal. App. 3rd 1175 (1985). In Menefee, the successful bidder submitted a low bid for a Fresno County water, sewer, drainage and street improvement project. Id. at 1177. The successful bidder failed to sign "the appropriate line on the proposal sheet" page 4 of its bid's form. Id. The form was signed by the successful bidder at other locations and the "bond accompanying the bid was properly signed." Id. The County of Fresno accepted the low bid despite the fact the proposal was unsigned. The California Superior Court upheld the County's decision to waive the defect caused by the successful bidder's failure to sign. The California Court of Appeals affirmed the superior court's decision. CJ Moyna's counsel cited a 1971 Washington state decision, AAB Elec. Inc. v. Stevenson Public School Dist 303, 491 P.2d 684 (Wash. App. 1971). However, the AAB Elec. case was twice rejected by the Washington courts in the cases cited above and is no longer good law. Moyna's counsel also cited Geo. W. Kennedy Constr. Co. v. City of Chicago, 481 N.E.2d 903 (III. App. 1985) in support of its position. However, that case was later vacated and dismissed and is not good law. Geo. W. Kennedy Constr. Co. v. City of Chicago, 491 N.E.2d 1160 (III. 1986). Assuming without conceding that the Kennedy case is good law, the bid bond and several other documents in that case were signed by a secretary of the corporation without attaching bylaws that indicated that the secretary could bind the corporation even though the submission of the bylaws was required by the contract. No such issue exists in the instant case. file: / /C: \Documents and Settings \blindahl \Local Settings \Temp\XPgrpwise \4FFDC... 7/12/2012 Page 2 of 2 Finally, Moyna relies on a Louisiana case in support of its position. Thigpen Const. Co. v. Parish of Jefferson, 560 So.2d 947 (La. App. 1990). The Thigpen case is distinguished because a bid bond is not mandatory in Louisiana. Id. at 951. In this case, Kueter Construction's failure to sign the bid proposal is identical to that in Menefee. The holding in the Menefee case should control. Kueter Construction respectfully request the City of Dubuque to award the contract to Kueter Construction. look forward to your reply. Todd J. Locher LOCHER & LOCHER 202 2nd Avenue NW P.O. Box 7 Farley, IA 52046 Tel.: 563.744.3359 Fax.: 563.744.3350 e -mail: tlocher @locherlaw.com IMPORTANT NOTICE: The information in this e-mail (and any attachment) is for the use of the designated recipient(s) only. This message may be privileged and confidential attorney /client communication. If you received this in error, any review, dissemination, distribution or copying of this message is strictly prohibited and may be covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 -2521, as well as other state and federal laws. If you have received this communication in error, notify the sender by reply e -mail and delete the original message (and attachments). IRS CIRCULAR 230 NOTICE: In compliance with U.S. Treasury regulations, any tax advise included in this communication cannot be used to avoid any U.S. Federal tax penalties or to promote, market or recommend to another any transaction or matter addressed herein. file: / /C: \Documents and Settings \blindahl \Local Settings \Temp\XPgrpwise \4FFDC... 7/12/2012 v-/le /h&7-/ Honorable Mayor Roy D. Buol and City Council Members My name is Allen Taylor and I am the CFO of C.J. Moyna & Sons, Inc. 24412 Hwy 13, Elkader, Iowa. These comments pertain to Action Item #71Dubuque Industrial Center South - Grading & Utilities 2012 Project, Phase 1. You must decide if it is in the Cities best interest to waive a bid irregularity and award the Contract to Tom Kueter Construction Co., Inc. Please consider what impact to the City this decision could have on future project bids. The issue is not about a missing signature on a form, it is about the missing "Bid Proposal Bid Form B1 ". Without "Bid Proposal Form B 1," the bidder may not be bound to perform the work. The contractor can walk away or perform depending on the circumstances affecting the competitiveness of this bid and future bids. Illustrating the significance of the defect is that the City felt it necessary to secure a signed bid proposal after the fact. If the City Council decides that Bid Form B1 is an insignificant part of the Bid Documents and will be accepted after the time and date specified in the "Notice to Contractors for the Receipt of the Bids ", in the future a contractor might purposefully decide not to submit Form B1 . After the bids are read the contractor might elect not to sign Bid Form B1 resulting in a nonresponsive bid. In my discussion with our Bonding Agent, if the contractor is not bound by the documents submitted the Bonding Company is not bound for the Bid Bond. This could afford the bidder an advantage over the other bidders. In my opinion this affects the competitive bidding process. Thank you for your consideration. Q ry c co ,r r i 0 Page 1 of 1 Kevin Firnstahl - This looks like it s for tonight's City Council Meeting - how do we get the attachment? From: Juanita Hilkin To: Firnstahl, Kevin Date: 7/16/2012 11:41 AM Subject: This looks like it s for tonight's City Council Meeting - how do we get the attachment? Attachments: Honorable_Mayor Roy_D_Comments_07- 16- 12.docx »> "Citizen Support Center" <dubuqueia @mycusthelp.com> 7/16/2012 11:18 AM »> Contact Us Name: Allen Taylor Phone: (563) 245 -1442 Ext 8 Email: ataylor @cjmoyna.com City Department: City Council Message: [WEBQA_OPEN_ATTACHMENT] file: / / /C:/Users/kfirnsta/AppData/ Local / Temp /XPgrpwise /5003FDE4DBQDODBQ PO1... 7/16/2012