HomeMy WebLinkAboutBPW-03-05-03-01Purchase Ultraviolet Disinfection Eq/No BiddingRESOLUTION NO. BPW-03-05-03-01
A RESOLUTION OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE
CITY OF CARMEl,, INDIANA, DETERMINING TO FORGO COMPETITIVE
BIDDING AND REQUEST PROPOSALS FOR ULTRA VIOLET DISINFECTION
EQUIPMENT FOR THE CARMEL WASTEWATER UTILITY FOR THE CITY
OF CARMEL, INDIANA
WHEREAS, pursuant to Indiana Code, the Board of Public Works and Safety (the
"Board") may enter into contracts for Wastewater equipment as they are "duly authorized and
empowered by law or delegated and entrusted with authority to make purchases of material,
equipment, goods, and supplies"; and
WHEREAS, pursuant to Indiana Code 5-22-2-25, the Board is a purchasing agency as it
is authorized to enter into contracts by this article; and
WHEREAS, City of Carmel has determined to purchase ultraviolet disinfection
equipment for its Wastewater Utility; and
WHEREAS, although price will be an important consideration in purchasing the
ultraviolet disinfection equipment, other factors are equally important, including but not limited
to, dependability, durability, repair costs, and availability of replacement parts; and
WHEREAS, pursuant to Indiana Code 5-22-9-1, the Board is authorized, as a purchasing
agent, to make a written determination that the use of competitive sealed bidding is not practical
or not advantageous to the governmental body and may award a contract using the procedures of
this Indiana Code 5-22-9 for requesting proposals instead of using a sealed bidding procedure
under Indiana Code 5-22-7; and
WHEREAS, pursuant to Indiana Code 5-22-9-2, when such a determination is made, the
Board shall solicit proposals through a request for proposals, after giving public notice of such
request according to Indiana Code 5-3-1, which must include the following:
1. The factors or criteria that will be used in evaluating the proposals;
2. A statement concerning the relative importance of price and the other
evaluation factors;
3. A statement concerning whether the proposal must be accompanied by a
certified check or other evidence of financial responsibility, which may be
imposed in accordance with rules of the governmental body, and
4. A statement concerning whether discussions may be conducted with
responsible offerors, who submit proposals determined to be reasonably
susceptible of being selected for award; and
WHEREAS, pursuant to Indiana Code 5-22-9-4, the Board shall then open proposals so
as to avoid disclosure of contents to competing offerors during the process of negotiation; and
WHEREAS, pursuant to Indiana Code 5-22-9-5, the Board shall then prepare a register of
proposals that is open for public inspection after the award of the contract and that contains a
copy of the request for proposals; a list of all persons to whom copies of the request for proposals
were given; a list of all proposals received that includes the names and addresses of all offerors,
the dollar amount of each offer and the name of the successful offeror and the dollar amount of
that offer; the basis on which the award was made; and the contents of the contract file except for
proprietary information; and
WHEREAS, pursuant to Indiana Code 5-22-9-6, the Board may conduct discussions with
the final offerors who submitted proposals as provided in the request for proposals or under the
rules of the Board; and
WHEREAS, pursuant to Indiana Code 5-22-9-7, the Board shall award the contract to the
responsible offeror whose proposal is determined in writing to be the most advantageous to the
Board, considering price and other evaluation factors set forth in the request for proposals; and
WHEREAS, the procedures set forth in Indiana Code Chapter 5-22-9 will allow the City
to maintain appropriate price competition while allowing it at the same time to evaluate offers on
the other important bases besides price.
NOW, THEREFORE, BE IT RESOLVED by Board of Public Works and Safety of
Carmel, Indiana, that:
Section One: The Board is making a written determination that competitive sealed
bidding is either not practicable or not advantageous to the governmental
body..
Section Two: The Board is determining that receiving proposals is the preferred method
of awarding a contract for the purchase of ultraviolet disinfection
equipment for the Carmel Wastewater Utility.
_Section Three: The Board will follow the procedures outlined above and the provisions of
the Indiana Code 5-22-9 for requesting proposals.
Section Font: This Resolution shall be in full force and effect from the date of passage,
and its publication, as provided by law.
PA. SSED by the Board of Public Works of the City o~! Cannel, Indiana this ~J~" ~tay ot7
-/t,d'-- ,2003, by a vote of ,~ ayes and __1~__ nays.
CITY OF CARMEL, iNDIANA
BY ITS BOARD OF PUBLIC WORKS
AND S ETY ,,~ ~
-j~Br'ainaTd, pj~esiding omce -
Date:_ ~ ~ - t~2 ~
Date: 3 -'f'~-05
Date: f~~
/'~ian~'-L. Con'ray, IA~ C'mrk-Treasurer
BARNES ÞBURG
Nicholas K. Kile
(317) 231-7768
Email: nkile@btlaw, com
11 South Meridian Street
Indianapolis, Indiana 462043535 U.S.A.
(317) 236-1313
Fax (317) 231-7433
www. btlaw.com
July 22, 2003
Mr. John Duffy
Utilities Manager
City of Carmel
One Civic Square
Carmel, Indiana 46032
Dear John:
You asked for an analysis regarding whether the purchase of the ultraviolet disinfection
equipment pursuant to the recommendation of Jones & Henry Engineers, Ltd. dated June 3,
2003, would be proper and in accordance with public purchase statutes. I direct your attention to
my previous letter to you dated August 16, 1999, a copy of which I attach.
After a purchasing agent makes a written determination that the use of competitive sealed
bidding is not advantageous to the City, I.C. 5-22-9 authorizes the purchasing agent to use a
request for proposals procedure. The request for proposals must include the following:
1. The factors or criteria that will be used in evaluating the
proposals.
2. A statement concerning the relative importance of price and
other evaluation factors.
3. A statement concerning whether the proposal must be
accompanied by a certified check or other evidence of financial
responsibility, which may be imposed in accordance with rules of
the governmental body.
4. A statement concerning whether discussions may be
conducted with responsible offerors who submit proposals
determined to be reasonably susceptible of being selected for
award. I.C. § 5-22-9-2.
I have reviewed Resolution No. BPW-03-05-03-01, a copy of which you provided me.
Pursuant to this Resolution, the Board of Public Works has made the written determination that
the use of competitive sealed bidding is not advantageous to the City and that a determination
should be made pursuant to a request for proposals. I have also reviewed the request for
proposals dated March, 2003, a copy of which you also provided me. This document at Section
Indianapolis Fort Wayne South Bend Elkhart Chicago Washington, D.C.
Mr. John Duffy
July 22, 2003
Page 2
3 sets forth the factors or criteria that will be used in evaluating proposals and a statement
concerning the relative importance of price and the other evaluation factors. It does not plainly
refer to whether a certified check will be required; however, in the advertisement itself at Page I,
a statement is included that the Company should submit a financial statement. This probably
satisfies the third requirement under Indiana Code § 5-22-9-2. Finally, the statement in the RFP
at Page 15 that "ranking of each proposal will be based solely on the OWNER'S and Engineer's
evaluation of proposals and discussions, if conducted with prospective Offerors," (emphasis
added ) probably satisfies the requirement that there be a statement concerning whether
discussions may be conducted with responsible offerors. Therefore, in my judgment, the RFP
satisfies the requirements of Indiana Code § 5-22-9, which would authorize the City to select the
proposal recommended by Jones and Henry. It also appears that Jones & Henry has evaluated
the proposals using the criteria and relative weights set forth in the RFP.
All of the above is stated with the caveat that is set forth in my August 16, 1999 letter.
There has been one significant change in the statute subsequent to the original letter which I
believe makes the RFP process more applicable than it was at the time of the letter. Indiana
Code § 36-9-23-6(c) now provides: "A contract or an agreement with any contractor or
contractors for labor, equipment or materials shall be let and entered into under the statutes
governing the letting of contracts by agencies of municipalities." The phrase "including I.C. 5-
17-1" has been deleted. The statues governing the letting of contracts by agencies of
municipalities include I.C. 5-22, which includes I.C. 5-22-9. My previous concern with the
specific reference to I.C. 5-17-1, and I.C. 5-17-18-I's explicit statement that I.C. 5-17-1 does not
apply to purchases under I.C. 5-22 has been removed.
That said, the amendment has not removed all uncertainty. Ind. Code 5-22-1-2 still
excludes "[a] municipality for the operation of municipal facilities used for the collection,
treatment, purification, and disposal in a sanitary manner of liquid and solid waste." I have
previously explained why I believe this applies to a contract for operation and not the purchase
of equipment, but this language is plainly troubling at first blush. Given that Jones & Henry lqas
recommended the most expensive proposal by a significant margin, you may be challenged. The
better answer in the event of such a challenge is that I.C. 5-22-9 applies and is available in this
context.
Notably, if I am incorrect that I.C. 5-22 applies, then what requirements would apply?
The answer is none. In that event, the Board of Public Works has adopted a process for selecting
a supplier and has adhered to that process. In short, you could still proceed to make the
purchase.
Therefore, in conclusion, it is my belief that you may proceed to select the proposal
recommended by Jones & Henry.
BARNES ÞBURG
Mr. Jolm Duffy
July 22, 2003
Page 3
If you have any questions, please do not hesitate to ask.
NKK:mw
cc: James M. Gutting
Sincerely,
BARNES ÞBURG