Trail contract conundrum completed … or is it?

Kevin L. Hoover
Mad River Union

ARCATA – At its Nov. 16 meeting, the Arcata City Council awarded a contract for construction of phase II of the Humboldt Bay Trail North to McCullough Construction Inc. The three-mile trail linking south Arcata to just south of the Bayside Cutoff will cost $4,690,763, though a five percent contingency fee of $234,538.15 could bring the total to $4,925,301.15.

The naming of McCullough had been delayed two weeks. After a lengthy bidding process, city staff had disqualified three of the five bidders for technical deficiencies in their bids, deeming them “nonresponsive.”

Humboldt Bay Trail North. City of Arcata image

Humboldt Bay Trail North. City of Arcata image

Several of the contractors disputed their disqualifications, citing what they said were problems with the city’s process, and asked for a re-bid. A few inferred possible legal consequences.

But staff defended the process and stuck with its recommendation that McCullough get the job. City Attorney Nancy Diamond assured the council that it had “an enormous amount of discretion” under law to define which bids were responsive or not. She reviewed the problems with the bids that were deemed nonresponsive – the key one being a failure to provide a Non-Collusion Affidavit – a document that ensures that the bid is a valid one.

“You should feel very comfortable with your decision,” Diamond said. The affidavit, she told the council, “is not a minor little point of state law. It’s required in all public construction contracts.”

Attorney John Klotsche, a construction litigator for disqualified bidder Mercer-Fraser Company, told the council that it had incorrectly specified that the affidavit be provided by the “awardee,” a status which none of the bidders could claim until after the contract had been awarded.

Thus, Klotsche claimed, a signed affidavit wasn’t required of the bid, that it isn’t disqualifying, that the city was about to violate state law and that it could suffer legal consequences.

“Nothing in there requires any bidder to sign a specific document,” Klotsche said.

He recommended that the city either re-bid the entire project, or award the bid to the lowest bidder, Stewart Construction, which had been deemed nonresponsive. But that would have required the city to hand over a multimillion-dollar contract to a bidder that had not provided an affidavit assuring that its proposal is valid.

Klotsche had prepared a detailed presentation, but was cut short when he exceeded the three-minute limit on public speakers. He asked for five minutes. Mayor Paul Pitino, who likes to keep meetings brisk, limited the attorney to one additional minute.

But Klotsche’s protestations came to naught. After minimal deliberation, the council unanimously adopted the staff recommendation and approved McCullough’s bid. Construction of phase II of the trail is set to begin next April.

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