Dickinson awards $2.8M landfill contract amid bidding controversy - Dickinson Press

Dickinson awards $2.8M landfill contract amid bidding controversy - The Dickinson Press | News, weather, sports from Dickinson North Dakota

Dickinson awards $2.8M landfill contract amid bidding controversy

Commissioners award multi-million dollar landfill expansion contract to Baranko Brothers, Inc. after extensive debate on procedural errors and legal considerations.

DICKINSON — The City of Dickinson awarded a $2,839,012.17 contract for landfill expansion to Baranko Brothers, Inc., which undercut project estimates by $58,493.18. Despite not submitting the lowest bid among seven proposals, Baranko Brothers won the contract after two rounds of commission voting following controversy over procedural and compliance issues, which raised legal and ethical concerns.

The core of the issue centered on a procedural error identified by Sherwin Wanner, of Houston Engineering, who was hired to assist in the final design and construction management of the Dickinson Landfill expanision project. Houston Engineering received $87,969 for their work on finalizing the plans and assisting the city with the bidding of the project.

Warner explained to commissioners that during the bid solicitation process, an addendum issued contained incorrect instructions on how to submit Minority Business Enterprise (MBE) and Women's Business Enterprise (WBE) solicitation forms, as well as the certification for Debarment and Suspension form, required by the Clean Water State Revolving Fund (SRF) loan funding.

This resulted in confusion during the opening and consideration of bids received, and that it was only after all bids had been opened and considered did the mistake in the instructions provided to bidders come to light.

City Attorney Christina Wenko reviewing the situation, noted that the error pertained to whether these documents were included in the bid security envelope or the main bid envelope.

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"The century code doesn't give us a whole lot of guidance when it comes to bidding requirements," Wenko said, highlighting her legal advice for the city to consider one of two options.

Wenko provided insight into the situation, noting the city's legal options in light of the procedural error. Wenko highlighted that the city could either waive the irregularity, allowing the project to proceed with the lowest bidder; or the city could reject all bids and restart the bidding process to ensure full compliance and transparency.

Aaron Praus, speaking on behalf of the city staff, recommended proceeding with the lowest bidder in Edward H. Schwartz Construction, despite the procedural issues, at a total cost of $3,174,959.05.

During the public commentary portion of the discussion on the issues, the Baranko Brothers voiced their dismay about being the only ones to submit the proper paperwork during the recent event.

"What Christina isn't telling you is that failing to include the required bid forms constitutes a failure to meet specifications. It's not our rules; it's your rule. We adhere to them and BBI should not be penalized for following the rules. It's as simple as that," Joe Kessel, owner of Baranko Brothers, said. "Schwartz was not the lowest responsible bidder because he did not adhere to the rules and complete the bid form correctly. Therefore, he is not responsible. The only responsible bidder here was us."

Commissioner John Odermann raised concerns about the potential legal outcomes of accepting a bid that did not present the lowest offer.

"What are the ramifications?" he asked City Attorney Wenko. "You're saying that we have to look at all the bids because they were opened, but as a municipality if we were to accept Baranko Brothers, Inc.'s bid and then somebody challenged it not being the technically the lowest bid. What are the potential ramifications of that?"

Wenko responded the city could indeed face litigation for not accepting the lowest bid and cautioned commissioners to consider the two options presented for the best legal course of action. She explained her legal view that the law supports fixing minor issues in the Schwartz Construction lower bid that it did in supporting selecting Baranko Brothers.

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"I think that in that certain circumstance, there is legal precedent to allow the city to waive the irregularity with Schwartz Construction's bid," she explained. "There's not a whole lot of legal precedent to go the other way."

Commissioner Dr. Robert Baer raised the city's legal discretion to reject any bid, for any reason, contemplating if this could apply to dismissing the lower bid in favor of Baranko Brothers, as the sole entity who bid in accordance with the procedural requirements.

Wenko cautioned against such a "broad interpretation" of this authority, clarifying, "I don't believe that that's probably a fair interpretation."

As commissioners continued to debate the merits of all options, Wenko advised the legal and procedural nuances facing the commission and again recommended a reset.

"I think the cleaner option is to reject all and start over if that's what you decide to do," she said.

A motion to "reject all bids and have a rebid" was made and seconded, but would lead to a tied vote 2-2 as Commissioner Suzi Sobolik was absent.

Reflecting on past procedural errors, Mayor Scott Decker emphasized, "I have a real problem when we are expected to follow a process or a procedure and we don't, and then we make excuses."

Amidst the deadlock, Oderman proposed an alternative, "I'll make the motion for option three," making a motion aimed to uphold the initial specifications and award the project to Baranko Brothers.

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The commission unanimously voted in favor of the motion 4-0, concluding the debate.

"[Baranko Brothers, Inc. Inc.] followed the rules and Houston Engineering didn't follow procedures," Decker said. "Paying attention to details matters, especially on large projects like this."

In an interview with The Dickinson Press, Decker stated that commissioners plan to discuss and ensure that they have more oversight during future bids in an effort to prevent similar errors moving forward.

"Ultimately, the responsibility gets pushed back on us," he said. "So if that's the case, commissioners need to be present during the bid opening. At least two commissioners."

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