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HomeMy WebLinkAbout05.14.2001 (2)COUNCIL WORK SESSION May 14, 2001 2:30 p.m. Council Chambers Members present: Mayor Rooff, Anders, Krizek, Gronen, Getty, Berry, Jordan. Members absent: Murphy. Moved by Getty, seconded by Gronen that the Agenda, as proposed, be approved. Ayes: Five. Absent: Jordan, Murphy. Motion carried. Willie Culpepper stated that the contractor on the Street Reconstruction Program has not reached 4 percent MBE participation, that he must be in violation of the contract and the city should stop work on the contract. Jordan now present at 2:32 p.m. Dave Love asked where did the 4 percent MBE participation come from. Mayor Rooff responded we asked Milt Dakovitch if he had 4 percent MBE participation and he said yes. Mr. Love stated he had an audio tape of the council meeting of April 26, 2001 and he can only hear the council talking about 4 percent. Mr. Love stated it was his understanding that Mayor Rooff's commitment was to have 5 percent MBE participation, and if not the city would rebid the job. Mayor Rooff stated he met with the minority contractors and contractor a number of times, and told them if we did not reach 5 percent MBE participation the city would rebid the contract and that is what was on the council agenda. Mr. Love stated that the words from Mayor Rooff were if we do not have 5 percent MBE participation he had the power to rebid the project. Mr. Love asked why are the minority contractors being used for statistics in data sent to DC, but when there is work they are left out. Mr. Love stated that 0 percent MBE participation for past years is ridiculous. Mr. Love stated he quit bidding because it was useless. Mr. Love stated he is concerned with the large volume of work coming into the city, and he has to make his living outside of the city. Mr. Love stated he is concerned that minorities represent 12 to 14 percent of the city's population, and the city only requires a 5 percent goal for MBE participation, and the contractor had zero percent participation. Mr. Love stated he quit bidding on the projects as he felt he was not being taken seriously. Mayor Rooff stated he put the item on the agenda to rebid, but he does not have a vote. Mayor Rooff stated that the council has talked about future work and the need to make changes. Mayor Rooff stated that minority contractors receive a lot of the work Community Development bids out, but not road work. Mr. Love responded that these contracts are peanuts compared to RISE projects, Airport and reconstruction programs. Mr. Love stated the minority contractors are specifically talking about road projects, and there has been 0 percent participation for five years. Mr. Love stated he talked with Councilperson Berry, and she thought there was going to be a hearing, not a vote. Mr. Love stated listening to the tape he was appalled and felt it was a slap in the face because $150,000 should have gone to MBE participation. Mr. Love stated if the contract was in compliance it should have been in writing so everyone would be informed. Mr. Love stated once the city lets a contract the numbers given by the contractor should be what the city talks about, not giving them work they are not qualified to do. Mayor Rooff responded that Mr. Love is correct that the contractor took work away from other contractors to reach 4 percent MBE participation. Jack Fellenzer, Contract Compliance Officer, stated that he does not have the 4 percent MBE participation in writing, but that 1.75 percent participation was submitted to him. W. C. Stokes stated he quoted Aspro, Inc. Item 56, top soil, at $7.00, and the engineers estimated the top soil at $7.50. The specifications asked for 4" and Mr. Dakovitch wanted him to accept 12" and he refused. Mr. Stokes stated that $59,855 was the total bid, and Mr. Dakovitch said he Council Work Session May 14, 2001 Page 2 wanted to do his own bid. Mr. Love stated that later Mr. Dakovitch offered the rock portion, but only 5,000 tons. Mr. Dakovitch wanted him to haul 5,000 tons of rock for $64,500, and that 92 percent was going to be the cost to haul the rocks, leaving Mr. Stokes with only $5,000 to play with. Mr. Stokes stated he refused that offer, and he does not feel Aspro made a good faith effort. Wally Stokes stated there has been a lot of talk about being the low bidder, and personally he does not believe the low bidder gets the job. Mr. Stokes asked how do you determine low bidder, does the contractor have to accept the low bid of the subcontractor, and what is the criteria under the local option sales tax. Mayor Rooff responded the city uses the engineer's estimate and compares that with the contractor's bid. Eric Thorson, City Engineer, stated the engineering department uses data from former years, and this year the engineer's estimate was considerably higher than the low bidder. Mr. Thorson stated that by state law the city is required to accept the lowest, responsible bid. Councilperson Anders stated that as public officials we are bound to take low bid, but asked if the contractor has to accept the low bid from the subcontractor. Mr. Thorson responded that is the contractor's choice, but he does not know if the contractor is required to take low bids also. Mr. Thorson stated it is up to the contractor to come up with the figures to get low bid. Terry Phillips asked if the same group of people could be the low bidder for ten years, excluding MBE and non -MBE participation. Mr. Philips stated he did not bid as he submitted quotes to Aspro in past years and felt it was a waste of his time because the contract was going to go to the contractors listed under Item 6. Mr. Phillips stated he knows in years past his prices have been good. Mr. Phillips stated he feels Aspro shuffles the numbers to exclude minorities, that minorities have been excluded in past years, and he asked how do the minority contractors get included. Mayor Rooff stated it was his understanding that the minority contractors felt the contractor had a lock on everything. Mr. Phillips stated the city is not getting a good price because the contractor controls the cost of materials. Mr. Phillips stated ten years ago a contractor from Cedar Falls was bidding on a project and did not meet the 5 percent MBE goal. The council decided to reject that bid and award the contract to the second lowest bidder. Mayor Rooff stated that the city is working under the policy adopted by the council in 1986. Jim Walsh, City Attorney, stated there have been a number of Supreme Court cases since then of reverse discrimination, that an entity cannot award on the bases of race. Mr. Walsh stated we can have Affirmative Action, but it has to be non -mathematical goals, or else they will throw it out. Mr. Walsh stated the courts would probably uphold the city's policy. Mr. Walsh stated that since 1986 the courts have ruled we cannot have strict rules, but as a policy board the council could reject bids to make sure the contractor made a good faith effort. Mr. Love stated it is up to the city to decide when they want to break this up, other states have done this. Mr. Love stated when you can show statistics of 0 percent, then there is a problem. Mr. Love stated if a message is not sent, the way the numbers are being shuffled around you could come up with the engineer's estimate. Mr. Love stated he would like to see the change orders. Willie Culpepper stated that Illinois has a program with set asides, and that there are programs that work. Mr. Culpepper stated that the little guy does not have the assets to fight the big contractors. W. C. Stokes stated that the Iowa Department of Transportation established an 80 percent rule whereby the contractor has to reach 80 percent of the goal. Mr. Stokes stated that no one wants the DOT program, we have a program now. Mr. Stokes asked what does the council intend to do with the reconstruction contract. Council Work Session May 14, 2001 Page 3 Mr. Walsh stated it was up to the council to decide what was said that day, and that stopping this contract could be ugly. Mr. Love said if the council was lied to when Aspro got the contract, then he didn't do what he said he would do. Mr. Love stated it is on tape that he committed to 4 percent MBE participation. Mr. Love stated the contractor needs to be stopped until he does what he said he would do. Councilperson Gronen asked how far geographically does the city advertise for bids. Mr. Thorson responded that there are several plan rooms, it is advertised in the Courier and contractors come from other areas. Mr. Thorson asked if the city could be the general contractor, and Mr. Walsh responded that it would not be illegal, but it is generally not good for a city to be in competition with private business. Councilperson Berry asked if the council has been misled what can they do. Mr. Walsh stated that unless the 4 percent MBE participation is in the contract document, there is nothing the city can do. Mr. Love asked the council if they were under the impression that 4 percent MBE participation was being met, and Councilperson Anders responded he was. Mayor Rooff asked Mr. Walsh to research the documents. Mayor Rooff stated that Mr. Fellenzer forwarded a letter saying the contractor made a good faith effort based on the program and bids. Mayor Rooff stated that there has been one MBE meeting, and Wallace Stokes was the only one to attend. W. C. Stokes stated that the minority contractors purposely did not attend the meeting. Councilperson Krizek stated she believes there was a misunderstanding and maybe the city needs to look at the contract. Councilperson Getty asked W. C. Stokes if the part he turned down was 2.8 percent of the MBE participation, and Mr. Stokes stated it would have been $64,500. Councilperson Getty stated he believed the 4 percent included 1.2 percent for cement and 2.8 percent for Mr. Stokes. Mr. Love asked if the minority contractors could get a commitment from the council that not only for this contract but in the future the contractors will have to live up to their obligation to the city or they won't get the contract. Councilperson Krizek asked if the minority contractors don't bid how will they get it, and Mr. Love responded if the council assures him he will start bidding again. Councilperson Berry stated that Mayor Rooff revived the MBE/WBE Committee to look at making changes. Mayor Rooff asked Mr. Walsh and Mr. Fellenzer to review the documents. Councilperson Getty asked W. C. Wallace if he was saying that the day the city had the meeting and accepted Aspro's bid with 4 percent MBE participation that he had already turned down Aspro, and Mr. Wallace responded yes. Councilperson Anders stated to shut down the project now might be more punitive than what it is worth and still have enough time to get streets constructed that are part of the project. Councilperson Anders stated the city will work with Aspro to get the 4 percent. Councilperson Anders stated the minority contracts need to show the council support by bidding on the jobs. Mr. Love stated that the bottom line is Aspro lied, and he could have lived with the 4 percent MBE participation in the contract. With no further business before the council, it was moved by Getty, seconded by Jordan that the meeting be adjourned at 3:38 p.m. Ayes: Six. Absent: Murphy. Motion carried. Nancy Eckert City Clerk