October 9, 1998

7:30 p.m.

The Board of Directors of the San Benito County Water District convened in special session. President Robert Swanson, Directors Ken Perry and Gary Gonzales were present together with District Manager/Engineer John S. Gregg, District Counsel David E. Pipal, Administrative Services Officer Janet L. Torres and members of the public.

a.       Pledge of Allegiance to the Flag:

President Swanson called the meeting to order and requested everyone to stand and recite the Pledge of Allegiance to the Flag.

1.       EXECUTIVE SESSION:      CONFERENCE WITH PROPERTY NEGOTIATOR

Pursuant to Government Code Section 54957.8

Agency Negotiator:                   District Manager/Engineer

Landowner:                     Steve Lindsay

District Counsel David E. Pipal adjourned the Board into executive session pursuant to the Government Code.

The Board reconvened into Public Hearing. District Counsel David E. Pipal reported the Board took action to enter into an agreement with property owner, Steve Lindsay.

2.       EXECUTIVE SESSION:      CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION SIGNIFICANT EXPOSURE TO LITIGATION

          Pursuant to Subdivision b of Government Code Section 54956.9:

          Number of Cases:            1

District Counsel David E. Pipal reported this item was not necessary at this time.

3.       AWARD OF CONTRACT - STREAM BANK REPAIRS ON PACHECO CREEK AT HOLLISTER CONDUIT CROSSING

District Manager/Engineer John S. Gregg reviewed the project history. He stated the District looked at the project to determine if it was the right project. He stated the bids received for the repairs were measurably higher than the project estimate. He stated one issue was that the pipeline is the property of the U.S. Government. He stated the Government can spend an enormous amount of time discussing the preservation of wetlands and the red legged frogs. He stated the District has encountered a number of challenges along the route and has received a favorable opinion from Fish and Wildlife Service. He stated he was anticipating having the projects required permits on Tuesday or Wednesday.

District Manager/Engineer Gregg asked what would the District gain by rejecting all the bids? He stated by rejecting all bids, the District would be leaving the area unprotected, and the District would have to put in minimum protection. He stated the best interest of the District was to award the bid at this time.

District Manager/Engineer Gregg stated by direction from the Board, he made reasonable efforts to contact contractors locally and from surrounding areas. He stated in the Notice to Contractors it stated interested contractors must attend the pre-bid conference and job walk. He stated both firms have had considerable experience in levy work and through the reference checks, no evidence of difficulties were found.

District Manager/Engineer Gregg stated the Board needs to determine whether to award the contract to Pavex who presented a regular bid or to Ford with an irregular bid.

President Robert Swanson opened the public comment period.

Pavex representative Tom Squary, counsel for Granite Rock spoke. He stated the question was whether the district should waive an irregular or erred bid. He stated he questioned whether the error could be waived legally. He stated it could not be waived if there was a cost impact. He stated he felt that Ford’s bid did have a cost impact by not attending pre-bid conference and job walk. He stated there was a cost involved in attending pre-bid meeting and job walk. He stated Pavex had to pay an employee to attend and Ford did not. Mr. Squary stated if the contract is awarded to Ford it will send a message to bidding contractors that you don’t have to attend pre-bid conference. He stated Pavex is ready to do the job and has done many jobs in the county. He introduced the Project Manager, Eric Streich and stated he was here to answer questions. District Counsel David E. Pipal stated Pavex counsel makes effective arguments in this matter. He stated the obligation of the Board is to award the contract to the lowest bidder. He stated Ford was not responsive in not attending pre-bid meeting and walk through. He questioned if the bidder has gained an economic advantage by not attending the pre-bid meeting. He stated he cannot see the economical advantage in not attending. He stated he felt there was no material that show defect in process. District Counsel Pipal stated Ford could sue the board for not exercising their right. He stated the Board is obligated to accept the lowest bid. He asked what was the effect of Ford’s non-attendance. District Manager/Engineer Gregg stated there were issues discussed on that site that were presented on site, implementing the contract. District Counsel Pipal questioned that non-attendance would not qualify them to do the work. Tom Squary stated he disagreed on what the obligations of the board was. He stated Ford’s bid did not meet each and every requirement by the board. Mr. Squary stated he does not see Ford suing the District. District Counsel Pipal asked the Board if they felt it was a minor formality and has the bidder received an economic advantage. President Swanson asked District Manager/Engineer Gregg if he could make a recommendation at this time. District Manager/Engineer Gregg stated the District did not state ‘must attend the pre-bid conference’ lightly. He stated there is a time element. He stated he would not have said ‘must’ if he didn’t care.

President Swanson asked if there was further discussion pending litigation in executive session? Director Perry stated he had some questions. He asked what the time frame was by not accepting any bids tonight? He asked when the District could go out for bids again? District Manager/Engineer Gregg stated in good faith you need to redesign the project. He stated it was not a good idea to go out for re-bidding just for the sake of re-bidding. Director Gonzales asked what District Manager/Engineer Gregg mean by redesign. District Manager/Engineer Gregg stated reconfigure the project for the re-bid. He stated the repairs need to be done and the District needs to be out of stream by October 31 or November 3, 1998. President Swanson stated the District needs to get the project done. District Manager/Engineer Gregg stated the major construction companies were notified of the request for bid. He stated Ford Construction Company was not on the list. He stated someone must have notified them and they called us. He stated other contractors received the information by mail, fax and hand delivery for the Addendum. President Swanson requested to go into executive session. District Counsel Pipal stated under the Government Code the Board can go into closed session for legal counsel, when board feels the threat of a legal suit. He adjourned to Executive Session.

The Board reconvened into Public Hearing. District Counsel Pipal reported no action was taken in the Executive Session. He stated the Board discussed contract legalities.

District Counsel Pipal stated the Board has discussed the fact of the urgency of the project. District Manager/Engineer Gregg stated the repairs need to be completed by October 31st or November 5th at the latest. President Swanson stated there is an utmost urgency that this project be completed by next spring. District Manager/Engineer Gregg stated the draft biological report has a requirement of November 5th being the completion date. President Swanson asked if the actual installation of the pipeline would be next year. District Manager/Engineer Gregg stated basically the connections from the 30" pipe to the 54" pipe needs to be done before the high demand season, as early as March. He stated at this time there are no regulatory deadlines. District Counsel Pipal recommended awarding the contract tonight and a finding in the motion, assuming which bid the Board accepts.

Upon motion duly made, seconded and unanimously passed the contract was awarded to Ford Construction, based on the time frame, that the irregularity of the bid was minor and did not constitute a monetary gain.

            The vote of each member of the Board on the preceding matters was as follows, unless otherwise stated:

            AYES:               DIRECTORS:   Swanson, Perry, Gonzales

            NOES:              DIRECTORS:   None

            ABSENT:          DIRECTORS:   Rupert, Buzzetta

            The Board adjourned to a regular meeting to be held on October 28, 1998 at 7:30 p.m., 30 Mansfield Road, Hollister, California.

 

                                                            _______________________________________

                                                            Robert M. Swanson

                                                            President

 

ATTEST:           ________________________________

                        Janet L. Torres

                        Administrative Services Officer