PU-25-0032

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TranscriptWhat was said at each appearance is below it. Machine transcription, with speaker names inferred from voice matching. 53% of 123 lines carry a name. It shows what was said, not what was decided, and both the words and the names can be wrong.

1. 1Aug 19, 2025
   Board of County CommissionersR52Regular businessApproved

   Approved minutes

   Approved Staff’s recommendation with Commissioner Yeager absent from the vote.

   Open this item →▶ Play from 3:10:50
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   StarkeyChair

   3:10:50And now we have um we're back to R S two, right?

   Unidentified speakerVoice A

   3:10:53No, you've got two continuances.

   StarkeyChair

   3:10:57Okay. And then we'll come back to our

   3:11:01Okay. Let's go.

   ▶ 3:13:4928m2/2

   StarkeyChair

   3:13:49Or fifty two.

   Nicholas Mudry

   3:13:54Yeah. I'll be

   3:13:55here.

   StarkeyChair

   3:14:01Good afternoon, Carrie Roberts, Purchasing Director for Pasco County. Today we're here for item R52, PU25-032. Review the County Administrator's decision in response to protest of solicitation number IFBKM-25-054. Shady Hills Wastewater Treatment Plant Headworks Replacement. Approve award of solicitation number IFBKM-25-054. To Vogel Brothers Building Company in the amount of thirty-three million eight hundred sixteen thousand two hundred twenty-six dollars and eighty-six

   3:14:32cents.

   3:14:37There it is. All right, thank you very much. So our timeline for this project is that we had Bids open on the fourth, I'm sorry, the eighth of April. We had four bids received, one from Archer Western Construction, one from Carr and Collier Inc., one from Poole and Kent Company of Florida. And then one from Vogel Brothers Company. On 418, we had received an interoffice memo recommending from Utilities, Engineering, and Contracts Management that the notice of intent to award be issued to Vogel Brothers.

   3:15:07That document was issued on 421-25. On 428-25, Poole and Kent protested and we received that letter. On 5125, they were deemed eligible and Were sent a letter. On 516-25, the county administrator formally denied Pool and Kent's protest. On 6225, Pool and Kent requested a protest review by the board. On 6.5, the purchasing department requested additional clarification from Vogel regarding their trench safety details. And on 618-25,

   3:15:38Vogle Brothers returned detailed responses to the safety trench questionnaires. In regards to the protest, the protest was received timely. It was on the 28th of April. It stated that Vogel should not be eligible for award due to the failure to show that the person signing the bid form was authorized to bind Vogel to contract, which we refer to as signature authority. Also, the failure to meet the Trend Safety Act requirements, stating Vogel did not list all methods and units for all work as required by the state. State Trench

   3:16:08Safety Act, and that it was impossible to perform job safety with the amount of trench safety funding vocal listed in the trench safety form. in i.e. that Vogel's bid should have been higher. The next point was that the county corrected Vogel's pricing. Vogel put higher amount in the bottom of its bid form and the county should have used that amount. The county's response to the protest was regarding signature authority. Not documenting the bidder's signature authority is a technical deficiency, which can be corrected. It is not considered a material deficiency, which would kill the bid.

   3:16:38We rejecting bids for significant signature authority reasons would not serve the public interest of getting the lowest price. In regards to the trench safety concerns, the state trench safety act only requires that amount on trench safety forms be based on certain units, not that amounts be listed in those units. Also by signing the bid form, Vogel represented that they'll comply with all trench safety standards at no extra cost. And also there was no evidence that extra trench safety money would have raised Vogel's bid to be close to the other bid amounts. In regards

   3:17:08to county correcting the price, Vogel inadvertently added line items designated, quote, for county use only to their bid price entered on their bid form. This falsely inflated their total bid price communicated during the public bid opening. The county bid form does state that the county can fix errors in creating or adding line items in the bid form. On 6225, Pool and Camp requested County Administrator's protest. I'll be re reviewed by the board. And finally, our recommendation is to uphold the decision by the County Administrator to deny the

   3:17:39protest by Poole and Kent under Section 2-124G2 of the purchasing ordinance and award the contract to Vogel. Both bidders are here and would like to speak.

   3:17:50Okay. Um

   StarkeyChair

   3:17:52well who goes first? Pooling can. Okay, pooling. Sorry for your long

   David Boucher

   3:17:59it was a long one. My name is David Boucher, I'm with the Pool and King Company and uh I'll be be joined by our legal counsel, Stuart Sakwa, online. I have some documents I'd like to share.

   StarkeyChair

   3:18:11Uh move to receive in five. Second. All in favor? Aye. Aye.

   David Boucher

   3:18:27Can I be heard? This is Stuart Sakwa. Can you all hear me?

   StarkeyChair

   3:18:33Who was that?

   3:18:36Um Who's doing the who's doing the speaking?

   David Boucher

   3:18:39Uh stewardess. Stewardess.

   StarkeyChair

   3:18:40Okay, how does that work?

   3:18:43Okay.

   Unidentified speakerVoice B

   3:18:44First of

   3:18:44all,

   3:18:44I'd like to uh thank the commission for uh extending the accommodation. I'm uh not able to travel right now. And so I appreciate the opportunity to uh present this um Live online. Um The um Doc one of the um documents that uh you all should have received is uh a letter dated June 2nd, 2025. Oh. That um Responds

   3:19:15to um The uh the decision by the uh county administrator. I d just wanted to walk you through those issues. There is a PowerPoint presentation as well. Um Oh are you all able to see that?

   David Boucher

   3:19:34Yes.

   Unidentified speakerVoice B

   3:19:36Okay.

   3:19:38So Yeah um Under under Florida law. Um The uh county or or municipality, who the the the public owner Um has has generally has discretion uh when awarding a contract. However, there are certain um uh items that where there there isn't uh discretion, they have to strictly follow

   3:20:08their own rules. Um And generally um If you look at um Page four of the letter. you will see that Um There the list of items where uh You know, a provision in a contract is considered to be material. uh are items um in this case Um the the ones that are applicable are Oh.

   3:20:39It's the data. fails to convey a clear intent to be bound, meaning, is there a way he can get out of the contract? even though he submitted a bid. And he submitted a bid bond. Second is If there are mandatory requirements in the instruction to bidders Once they're i if it's mandatory, you can't then turn around the the the owner can't turn around and say, Oh It's not material. the the law

   3:21:10generally is if you make something mandatory It's material. And then the last um Uh category are statutory requirements. And so in this case We have One each of those. Um The the first one uh I'd like to point you to is The um Chair Safety Act. If you could go back to the first slide, please. I'm sorry.

   3:21:42Um if you can click on it it should be able to uh Make them um Enlarge so you can read it better if you just click it once please.

   StarkeyChair

   3:21:51We we can read it very well. We have Okay, that's it. Even bigger.

   Unidentified speakerVoice B

   3:21:58The uh Uh Florida uh Trent Safety Act. Um comes came as uh as a the uh contents of it were initially created by the federal government under OSHA. to protect uh workers from um you know, being injured or or killed because of um Cavins in in um And Tunches. Um Subsequently,

   3:22:30in the early nineteen nineties, the uh Florida Legislature adopted uh this statute which basically took the requirements of the OSHA regulations and turned them into Uh state law. Um And

   3:22:50Um

   3:22:52It said the the key provisions are in in section five fifty-three sixty-three. It says the contract bid submitted by the contractor shall include, means it's may that makes it mandatory. you know, separate items identifying the cost of compliance. And then the second part and then in in section five fifty three sixty four It specifically says that the the

   3:23:22separate items identifying the the cost of compliance shall be based on the linear feat. of the trenches. Uh if you go to the next slide, please.

   3:23:37So

   3:23:39Um

   3:23:42In this c if then if you can blow it up uh H hit the button so it enlarges it again? All right. So This is then uh is is this is a form that was prepared by Pasco County that contractor had to sign. And it says that the bidder acknowledges that included in the various items Uh Or you know, to comply with the Trip print safety act and they they

   3:24:12include five hundred dollars. And then again, if you'll see at the bottom there, it says it is a mandatory requirement that the disclosure statement be submitted with the bid. You go to the next page, please.

   3:24:28You can uh again h uh click button it's a So then this provision This is the neck this is the form that they have to Two Sign. And it says that The the bidder has to um the following it says that the following excavation measures in the linear feet of trench excavated under it they have to specify the linear fee. in the form and says

   3:24:58these units um a and and the prices are have to be disclosed and it says the important part here is there's purpose uh for the purpose of compliance with the aforementioned act. In other words If you can go to the next page, please.

   3:25:17So you see this is the form that they had to to then fill out. and under it the I have verbals on the left and pull and cancel on the right. And what you'll see is Um In the units. Uh they put one Uh Vogel did and then their unit of measure is LS, which stands for Lump Sum. Whereas pooling can't put in 500 and LF, which is linear

   3:25:47feet for one item. And cheating.

   3:25:52Form and it's a hundred. That's what the statute requires. And the reason that they require it is because Uh contractors were not thinking about trench safety And people were being Injured and and dying. from you know, because they weren't taking adequate safety measures. This is a required provision. And They chose for whatever reason

   3:26:22not to bother to fill out the form as it's required. And it's a non-waivable thing because it's a a statute and it's done to protect the life and safety of the workers. Yeah. if you look at the um administrator's decision, he says, Well, it's not that big of a deal because he looked at it and said, it's not a whole lot of money. But this isn't about money. This is about protecting people's lives. And

   3:26:53and the state legislature has said that this is a mandatory thing. Every contractor who's doing any trench work on any job If the trenches are more than five feet deep, must fill out this form. And if you don't you're not entitled to the job. At least for public ones. Um Can we go to the next slide, please?

   3:27:20you'll see that these were the other two bidders. Yeah. So basically three out of the four were able to follow what they were supposed to do. and only Google was una was unable to do it and The way the the law is is you know nine If you can't if you don't fill out that form, which is mandatory, you don't fill out properly, You're you're uh not uh a non responsive bidder. That's

   3:27:51Go to the next slide, please.

   3:27:56Yeah to understand why the the that they put in sloping. This is uh uh uh lay out of uh part of the the project. If you could uh click button please so that Bands.

   3:28:13See the there is uh where the yellow highlighting is. That is a forty two inch Uh pipe. that is to be installed on the project. Um and that that section there is about Thirty feet. Uh or so in length.

   StarkeyChair

   3:28:33Your your time is is wrapping up, so sp you might want to speak a little faster.

   Unidentified speakerVoice B

   3:28:37Okay. Next slide please.

   3:28:43Uh if you can blow that up, please. Wait, one more. You'll see this now shows that that pipe has to go under these duct banks, and you can see the highlight. that it's sixteen feet deep. The only way to install that pipe sixteen feet deep is to use Sheeting, you can't do it by sloping. And and so They're not going to be able to do Uh they clearly didn't follow

   3:29:14the the instructions. There's no way you can put in that pipe uh by just sloping it, which is what they said. And therefore their bid is non responsive and they're not entitled to the the project. You can move on to the next slide.

   Unidentified speakerVoice A

   3:29:30That was your time, sir.

   StarkeyChair

   3:29:31Yeah, that was I gave you another forty seconds, so I'll sign it.

   3:29:40I

   3:29:40don't

   Unidentified speakerVoice B

   3:29:41ask that you just read my letter then from June second.

   StarkeyChair

   3:29:44Yeah, I've got it here in front of me.

   Don Hempke

   3:29:58I I have a PowerPoint which we can present

   StarkeyChair

   3:30:03Okay. Any second. Commissioner Second?

   Don Hempke

   3:30:09Second.

   StarkeyChair

   3:30:10I'll favor I. It's long day.

   Don Hempke

   3:30:14My name's Don.

   StarkeyChair

   3:30:16And you have ten minutes as well.

   Don Hempke

   3:30:18My name is Don Hempke, H-E-M-K-E. I'm an attorney with Carlton Fields. I live in Tampa. And with me is the Vice President for Bogle Brothers, Darren Bogle. Basically uh and I'm we're gonna shorten the portion of this and I'm gonna let Mr. Vogel talk about the technical issues in so far as the trenching is concerned. But the background as you look at PowerPoint two is very clear

   3:30:48that basically this is the fourth time that basically people from the county will have looked at this issue.

   3:30:59Our price is basically fifty-three thousand dollars cheaper than uh

   3:31:08than basically the competitor here uh and basically the

   3:31:16The purchasing department has recommended an award to us. What I would like to point out if you look at page three of the PowerPoint, the standards become different on a situation like this because they have the burden of proof. Uh they have one of the purposes of competitive bidding of course is uh getting the cheapest price for a quality good, save

   3:31:47c money county, and basically it's five hundred and thirty two thousand dollars that would be saved. And finally, as you go up the tier, first began with the County Administrator's decision as you go up on appeal, it's a narrow standard. You don't sit as a new de novo review, make your own determination. You've got to determine that the county administrator was arbitrary, capricious, or in clear violation of the law in making his decision, and he clearly did

   3:32:17not. They have not talked much about the i their first claim, if we go over to the case.

   Unidentified speakerVoice C

   3:32:27Well, I mean Don, I I can jump in on some of this. So I mean the the first part is on the signatory authority, if you go on Sun Biz, I'm an officer of the organization, I'm an owner of the organization, and I signed under perjury whether or not I was bound to be able to sign for the project. My name's on the door, I'm pretty sure I can sign for the project, to be honest. Um when we get to the trench safety Um first of all, the gentleman misspoke. Um of the bidders, two of us listed um lump sum as an option, Vogel and I think Archer. I can't

   3:32:58remember who the second one was. There was two of the um vendors that use um Lineal Foot. Um the last significant expansion that was done at Shady, we performed. I'm looking at my trench safety form. Unfortunately, I don't have the original signed one anymore because that was in 2017. And we weren't doing electronic smittles yet. But I have what we had prepared, and we turned in a for the unit price an each of $2,000 for the trench box. There's $40,000 worth of slide rail put into the job. The bottom line

   3:33:28is safety is one of the four key beliefs of Vogel Brothers. Since the Trench Safety Act went into effect in the state, we've completed over 250. 54 projects under the Trench Safety Acts. We've had zero incidents related to trench trenching activities and zero compliance notices. Um, you know, if you look right now, our EMR currently is sitting at point five nine. Um safety is a huge importance to us. And so I I really don't appreciate the uh assumption that based upon a a

   3:33:58dollar value on the um form whether or not we can uh complete the work on that sense. Um if you look at the drawing that the other gentleman pulled up, the reality is that there's almost $100,000 worth of shoring that we're all going to be carrying on that. It's not a trench box, it's not sloping. That's going to be sheet piles. There's going to be some s form a trench um of slide rail system as well. So the $10,000 that they had shown

   3:34:26So the the reality is it's covered and if you look on our slide on sheet number

   3:34:37Uh lost track on those sheets now. Um on page seven, I believe there was no less than six other times in the ITB that I'm attesting that we're gonna follow the and are bound to the laws under OSHA and under the Trent Safety Act. So uh the the form Yeah, I just to say on the forum that you know I didn't have we didn't have a linear foot down. when in reality, you know, another several bidders did lump sum. I've shown a lump sum number in the past on a project for the county

   3:35:07that we s complete successfully. It uh seems like we're in compliance there. Um and then I mean he didn't even get to the third point talking about the uh bid form itself. But if you want it to go. To sl I mean, I don't even know if we really need to go over that at this point, but um if you want to go to slide

   StarkeyChair

   3:35:33Thirteen? Yeah.

   Unidentified speakerVoice C

   3:35:34Thir yeah, thirteen we can start there.

   3:35:40And in reality it's actually before that it'll be slide twelve, 'cause it talks about it breaks it down.

   Nicholas Mudry

   3:35:46Okay.

   Unidentified speakerVoice C

   3:35:52So uh BP four specifically states that

   Daryl Whitlock

   3:35:57Mm-hmm.

   Unidentified speakerVoice C

   3:35:58If you um look on in the IFB on BP four it says the total bid price quoted above represents the bid for the proposal. The total bid price was what was included on line three. Line three for Pull and Kent is at thirty one million three hundred and two thousand two hundred dollars. And line three for Vogel Brothers was thirty million eight hundred and four thous eight hundred and four thousand eight hundred and ninety eight dollars, which is a difference of four hundred and ninety seven thousand dollars. So at the end of the day

   3:36:29uh specifically in the IFP um in the um proposal it states that line three is the determining number and we're four hundred thousand dollars less. So um I I think that's really all we have at this point. I mean, if anyone wants to talk more about trench safety, I would love to do it. We have a great safety department that can go over it. Um I I I just really think we Pretty much we can't do anything unless Don, you have anything else you would like to add?

   Don Hempke

   3:36:58I just want to add thing about the signatory requirement basically.

   3:37:04He is sworn under per penalty of perjury that he had authority to do this. That is by far and Florida case law is very clear that you can add a formal document afterwards basically when it goes to responsibility.

   Unidentified speakerVoice C

   3:37:19And we have a secretary certificate that we can provide, but the IFB actually stated if you're an officer of the company, you do not have to provide the secretary certificate. And I am an officer on Sunbiz, I'm an owner of the company. So I'm I'm sure I can sign.

   Don Hempke

   3:37:35Questions?

   StarkeyChair

   3:37:39Any questions?

   Don Hempke

   3:37:40Um and we of course adopt the position that the county's taken. Uh County Administrator and gives denials for all three grounds that they have raised. Those are in our packet there as well.

   StarkeyChair

   3:37:59Mm.

   3:38:03Well I I do have one question. Um just that attorney for the other company, I don't know their names. Um Was that was that form filled out correctly? I'm I'm a little lost this trench act form.

   Unidentified speakerVoice C

   3:38:18So that form is on every project we we do. And if you go and look at on that example that so that would be on sheet

   3:38:38Putting through here. Uh slide eleven.

   3:38:46He stated in the state statute that it says only lineal foot. The county's form already shows unit of measure, lineal foot, slash SY, which is square um yardage. However As you saw, these forms are on every single bid we do in the state. We did a a lump sum for sloping on this one. One of our competitors did a lump sum number for s the cost of a single trench box. It's

   3:39:16really more it's an acknowledgement, no different than doing like a hundred dollar indemnification. We're acknowledging that we're that the state trench safety act is going to be followed. Because

   StarkeyChair

   3:39:25that's what gets a little over my head. And I'm not an attorney, so I have to look to my attorney.

   Unidentified speakerVoice A

   3:39:32Well they have they have indicated that They're gonna comply with the law. And they are Not increasing the cost of their bid. Um To for their basically they're eating compliance. So I I

   Unidentified speakerVoice C

   3:39:52And we've attested that like six different times. It says you're attesting you're following the Trench Safety Act.

   Don Hempke

   3:39:57And and and for the reference of other commissioners, basically if you look at page eight, there it itemizes what it recommends by that. We're going to do.

   Unidentified speakerVoice C

   3:40:12So yeah, I'm we've acknowledged the so in that letter that was discussed, you we acknowledged the requirements of the trench safety act and we certified that you know it's gonna be you know all work's gonna be followed in that manner. We that was one of the questions that was asked in that um letter that purch the purchasing department mentioned.

   MarianoVice Chair

   3:40:39Madam Clerk. So in reading the other slide It even says under a separate item identify identifying the cost of compliance with trench safety standards shall be based on the linear foot trench to be excavated.

   3:40:54That would be the way this was put in for a linear foot would be acceptable. Mr. Attorney?

   Unidentified speakerVoice A

   3:41:01We advise we advised the administrator on the protest, so I mean uh I'm not gonna I'm not going to countermand the the advice that my assistants have given. I I think that I think that you are fine upholding the the administrators.

   3:41:21Are we done with the presentation?

   StarkeyChair

   3:41:23I think so. Yeah. Yeah, yeah.

   3:41:28I didn't see the red light go off, but I'm sure it's we started asking uh but we started asking questions.

   MarianoVice Chair

   3:41:34Okay, so we're to the board. Hearing from my county attorney, he's comfortable with it.

   3:41:39I'll move approval of staff's recommendations. I'll

   Oakley

   3:41:41second it.

   StarkeyChair

   3:41:43More discussion? Okay. All in favor? Aye. Aye.