The company that finished second in the bid to design and build a $25 million utility project has notified Bay County officials it will file a formal protest of the selection process.
In a letter sent via electronic mail to the county's purchasing department on June 7, the attorney for CPH/Western Summit Team alleges county commissioners violated procurement procedures set forth in Bay County ordinances and Florida statutes by awarding the contract to Phoenix Construction of Lynn Haven.
At its June 4 meeting, the commission ranked Phoenix Construction first among five firms vying for the alternate water supply project. A month earlier, county staff reviewed the five responses to a Request For Qualifications (RFQ) and rated Phoenix fourth and CPH/Western Summit Team third.
During Phoenix Construction's presentation to the board, owner James Finch offered several performance guarantees if his company was awarded the contract. Finch promised there would be no change orders, up to $1.5 million in fee reductions if his company caused delays or failed to employ 95% local workers, and a five year "bumper to bumper" warranty on the work.
In the "Notice of Protest" letter, attorney Christopher McRae of the Tallahassee firm McRae & Metcalf, P. A. wrote that Phoenix Construction's guarantees were "… outside of that allowed or provided for in the RFQ and would be improper if considered in making an award of the Project."
"Some of the assurances that I heard Phoenix make were impressive and we certainly will make sure those are in the contract," Chairman George Gainer told News 13 after the meeting. Gainer had Phoenix in the top spot and ranked CPH/Western Summit Team as the second best qualified.
In the letter, McRae referenced Gainer's post-meeting comment as evidence Finch's guarantees factored into the commission's final ranking. In citing subsection 287.055(3) of the Florida Statues, McRae wrote that "…the County may accept and consider information relating to compensation to be paid under the contract ‘only during competitive negotiations.'"
In an exclusive interview, Gainer acknowledged CPH/Western Summit Team's right to protest the selection but said the company missed an opportunity at the board meeting.
"If they had something else to say, I really think they should have said it," Gainer said. "We all know how to rate firms and we rate them based on what they're supposed to come in there and say and what they have written down in their brochures… any guarantees beyond that would be just frosting on the cake."
Gainer said he's confident Phoenix Construction will do a competent job and was selected based on solid business principles, not because of Finch's promises.
CPH/Western Summit Team has until June 17 to file its formal protest and must accompany it with a $250,000 bond – an amount equal to 1% of the estimated contract. According to county policy, the purchasing director has 14 days to resolve the protest in a manner that satisfies all parties. The bond will be returned to the company if it prevails and forfeited if the protest is denied.
If the contract award is upheld, the protester can appeal the decision to the county manager. That decision is final and cannot be appealed to the county commission; however, the unsuccessful bidder retains the option to take legal action to satisfy its claim.