Someone posted the UH press release on Tsai's blog, UH issued a press release today on the bid protests:
The University of Hawai’i has denied two protests contesting the award of a contract for the resurfacing of UH Manoa’s Clarence T.C. Ching Athletic Complex (formerly known as Cooke Field).
Interestingly enough, in addition to Sadowski/CO-HA, the fourth-lowest bidder (Ching's Nursery) also filed a bid protest. The decision has been appealed to the DCCA, so it's not over yet. Also, I believe construction is still stayed pending the appeal.
"I'm coming back, I will return, and I'll possess your body and I'll make you burn; I have the fire, I have the force, I have the power to make my evil take its course" -- "Number of the Beast" Iron Maiden
Get this done already, everybody knows Hamocon can get this thing done right. Trapasso couldn't be happier with the Murakami Stadium job.
"I saw the fullback, he's looking directly at me," Soares said. "I knew he was coming my way, so I already knew. I went with all my power and all my might and I went crush him. I heard him when I hit him, I heard him -- he felt it."
Article from Star-Bulletin. Work will be delayed until DCCA comes out with a decision.
"I'm coming back, I will return, and I'll possess your body and I'll make you burn; I have the fire, I have the force, I have the power to make my evil take its course" -- "Number of the Beast" Iron Maiden
According to the SB article, the hearing is set for September 23rd. Hopefully, neither party seeks a waiver of the 21 day deadline to hold the hearing due to some scheduling conflict. The issues are not complicated at all, and the hearing needs to proceed, pronto!
What ever happened to paying for quality workmanship over lowest bid? In the long run it is cheaper.
“Far better is it to dare mighty things, to win glorious triumphs, even though checked by failure...than to rank with those poor spirits who neither enjoy much nor suffer much, because they live in a gray twilight that knows not victory nor defeat.”
I haven’t been following this much but I don’t get it, if the work requires a licensed contractor then why did UH accept a bid from an unlicensed contractor? I’m now curious to know what the bid requirements were along with what license is required under the detailed scope of work they were bidding for. The Hawaii contracting laws are simple and clear, unless I'm missing some part of it, sounds like UH may be a part of aiding and abetting unlicensed activity if they deny the protest.
Gatorade, off the top of my head: The low bidder, RMY, listed a DBA or trade name for Logan Hamocon (Sports Turf Hawaii) instead of listing Hamocon the sole proprietor. Hamocon is licensed as a C-27 specialty contractor in landscaping. Sports Turf Hawaii is recognized and registered as Hamocon's trade name with the Contractors License Board, and RMY included Hamocon's license number with the listing. Hamocon intially registered "Sports Turf Hawaii" as his trade name with the Department of Commerce and Consumer Affairs Business Registration Division ("BREG"). However, the registration expired, and Hamocon recently established Sports Turf Hawaii LLC. The LLC is not a licensed entity, and registered the same trade name for the LLC with BREG.
The second low bidder/protestor CO-HA is trying to argue that the low bidder RMY failed to list a licensed subcontractor to do the installation of the turf since the DBA/trade name is currently registered with an unlicensed entity, Sports Turf Hawaii LLC. A technical argument.
The burden of proof will be on CO-HA. Since Sports Turf Hawaii was first used as a trade name by Hamocon as a sole proprietor (and I assume that he has never abandoned its use since, for example, he was referred to as Sports Turf Hawaii in connection with the Murakami Field installation), plus Sports Turf Hawaii is registered as his trade name with the Contractors License Board and RMY included Hamocon's license number in the listing, I believe that CO-HA will be unable to sustain its burden of establishing that RMY did not list a licensed contractor to perform the turf installation. In addition, the purpose of the subcontractor listing statute, HRD 103D-302(b), is to prevent the practice of bid shopping - where a winning contractor shops among subcontractors to get a lower price (and more profit for the contractor). By requiring the contractor to list subcontractors for the different parts of the work, the contractor cannot shop. In this instance, I don't see any danger of bid shopping since Sports Turf Hawaii and Hamocon's license number were listed together for the turf installation work. Hamocon is clearly the person intended by the bidder to do the installation.
The brouhaha also includes CO-HA's principal, Dennis Sadowski's attempts as a member of the Contractors License Board, to establish a new specialty contractor classification for the installation of artificial sports surfaces. It has been perceived by many as an effort to eliminate competition in the bidding for future public works projects, i.e., an attempt to ice others out on licensing grounds. It appears that the it remains a provisional license and only a "recommendation" at this point per Contractors License Board Executive Officer Verna Oda. This is the issue that has everyone upset at Sadowski and CO-HA, but it does not appear to be part of the protest.
Finally, in response to Hogster, going with the lowest responsible, responsive bidder is meant to be beneficial to us taxpayers. Competitive bidding is meant to prevent the under the table non-bid contract deals of the past that gave lucrative contracts to a connected few. Lowest price does not necessarily mean lowest quality. Contractors are still required to meet the project specifications. There is no guarantee that a higher price will guarantee that you get a cadillac instead of a chevy - you could be paying for a cadillac and getting a chevy since contractors are in the business of making money and it is not in their interest to construct anything better that what is specified by the architect or engineer. In public works projects, the winning bidders are required to post performance bonds to ensure faithful performance of the contracts. Thus, if the contractor performs shody work, the surety bond will be called to correct the deficiencies. With respect to this particular project, though, the difference in bid price between RMY and CO-HA is pretty small at about $20,000 ($86x, xxx versus $88x, xxx or thereabouts.) so I don't think the protestor's price will ensure a better product than the low bidder's.
Duster, thanks for the explanation. I know you are a legal eagle so I have to ask, is the burden of proof on CO_HA? Is the interpretation of the rules and regs set by the DCCA too? I do know that the DCCA/CLB’s rules are pretty clear regardless of the “technical argument”; so Co-HA’s complaint could be legit? Correct me if I’m wrong but after reading it, I don’t believe there is anything unique in the requirements of the bid process. Because of that; IMO, the “technical argument” is what will keep the matter unresolved and ruling in favor of the low bidder will be a contradiction of the DCCA’s own rules. I’ve heard of situations where businesses licenses were temporarily suspended for less reason.
Under Hawaii Administrative Rules ("HAR") section 3-126-56(c), the burden of proof is on the party who initiated the administrative proceeding. Since CO-HA filed an appeal/requested administrative review of UH's denial of CO-HA's protest, the burden of proof is on CO-HA. Unlike the typical administrative proceeding, the Hawaii Rules of Evidence applies, per HAR section 3-126-56(a).
As for CO-HA's argument, it is based solely on whether the Hearings Officer buys its argument that Sports Turf Hawaii is the trade name of an unlicensed entity, Sports Turf Hawaii LLC only. This registration is with the Business Registration Division. Because CO-HA is asserting a licensing issue as opposed to a business regitration issue, I think Hamocon's registration of Sports Turf Hawaii as his trade name with the Contractors License Board (who deal with contractor licensing), and the listing of Sports Turf Hawaii with Hamocon's license number on RMY's bid is sufficient to overcome the challenge. In addition, Hamocon owns Sports Turf Hawaii, LLC, and Hamocon has apparently used the trade name prior to and after forming Sports Turf Hawaii, LLC.
I would expect the low bidder, RMY, to intervene as an interested party. I can see a bunch of contractors being called to testify that Hamocon and Sports Turf Hawaii are synonymous. As the "owner" of the project, UH will probably also have representatives offering such testimony. They probably used the trade name in connection with the winning bid on Murakami Stadium. How can CO-HA sustain it burden of proof under such circumstances?
For practical purposes, the stay of the procurement (i.e. project delay) will end with the Hearings Officer's decision. If CO-HA loses, Hawaii Revised Statutes section 103D-710(b) will enable UH and RMY to proceed with the project, irrespective of whether CO-HA appeals the Hearings Officer's determination.
Pocho wrote:So when is the decision to come down? The season will be done by the time the new gets installed.
Lose Money Already
Black Ball the cry babies company
It depends on how long it takes for Hearings Officer Sheryl Nagata to complete a written decision after the hearing. Maybe a couple of weeks after the hearing, unless she orders the submission of post-hearing briefs and/or proposed findings of fact and conslusions of law (i.e., more paper), then it will be later.
I don't know how long it takes to install the drainage, infill and turf, but suspect that you are right with respect to an after the football season completion date.
Pocho wrote:So when is the decision to come down? The season will be done by the time the new gets installed.
Lose Money Already
Black Ball the cry babies company
It depends on how long it takes for Hearings Officer Sheryl Nagata to complete a written decision after the hearing. Maybe a couple of weeks after the hearing, unless she orders the submission of post-hearing briefs and/or proposed findings of fact and conslusions of law (i.e., more paper), then it will be later.
I don't know how long it takes to install the drainage, infill and turf, but suspect that you are right with respect to an after the football season completion date.
Mahalos for the response and time frame for installing the turf.
After thinkning about it, I don't think UH or any State/Federal/C&C entity can BlackBall this dudes company for big jobs. The Private Sector is going to have to take the lead and not deal with this dude.
Pocho wrote:So when is the decision to come down? The season will be done by the time the new gets installed.
Lose Money Already
Black Ball the cry babies company
It depends on how long it takes for Hearings Officer Sheryl Nagata to complete a written decision after the hearing. Maybe a couple of weeks after the hearing, unless she orders the submission of post-hearing briefs and/or proposed findings of fact and conslusions of law (i.e., more paper), then it will be later.
I don't know how long it takes to install the drainage, infill and turf, but suspect that you are right with respect to an after the football season completion date.
Per tommui on Tsai's blog, the hearing date was set for 10/8.
Interestingly enough, apparently Ching's Nursery, the fourth-lowest bidder, also appealed to DCCA. Unless they protested the three bids that beat them, I don't see how they are an aggrieved party here.
"I'm coming back, I will return, and I'll possess your body and I'll make you burn; I have the fire, I have the force, I have the power to make my evil take its course" -- "Number of the Beast" Iron Maiden
WassupDoc (someone who spends much of her time at the Capitol and has attended most of the hearings and meetings on the turf contract) posted this analysis of the contract timeline.
RE Ching/Cooke Field Renovation Timeline:
Based upon what we heard today at the preliminary hearing and what has been talked about from a technical perspective concerning the work itself once the contract has been let, here is my take:
The hearing will be held on DrDoc’s and my birthday in October - whoopdedoo!! - with a decision to be rendered within a month. It will take about two to five working days for all the paperwork to be updated once the decision has been made and then the clock will start running on the implementation of the contract.
Materials will be ordered as needed which could come in as early as two weeks or take as long as six weeks - it all depends upon how much backstock the manufacturer has on hand at the time the order is placed - and cash in hand in required.
While waiting for the turf to arrive, all of the prep work will be completed.
Once the turf arrives, it will take between about ten calendar days to finish up the project plus another week to go through the inspection and sign-off process.
All of this assumes reasonably decent weather, but we’re about to move into our rainy season so that is also an unpredictable factor.
There is also speculation that should CO-HA/Sadowsky lose the hearing, they will move it on over to Circuit Court and, if needed, through the appeals process at the state - and maybe even the Ninth Circuit Court of Appeals and beyond. That means in about five years, a final, final decision will be rendered.
If that were to happen, then UH would have to decide whether to just bag the whole thing and let Sadowsky have the contract so as to get the Ching/Cooke Field fixed - or to keep fighting on principle that the lowest bidder whose work on a previous contract has proven exemplary should be the one to get this contract.
What would you do if you had to make that decision?
Glad I am not the President of the University of Hawai`i.
