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07/16/2019 Regular MeetingSOLID WASTE ADVISORY BOARD SCANNr--0 CAl SPECIAL MEETING MINUTES 1 .1vkw—"- � July 16, 2019 - 5:15 PM Kodiak Island Borough Assembly Chambers SWAB Case: 2019-01 Call to Order Chair Szabo called the special meeting to order at 5:15 p.m. on Tuesday, July 16, 2019. Roll Call Martha Barnett conducted a roll call. Board members present were Ed Mahoney, Jason Jardine, Steven Neff, Nathan Svoboda, Chair Nick Szabo, and Jeff Stewart. Laine Welch was absent. There were six present, one absent and a quorum was established. JEFF STEWART MOVED to excuse Laine Welch due to illness. STEVEN NEFF seconded the motion. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY. Ms. Welch was excused with a vote of six to zero. Visitor Comments: Comments were limited to three minutes per speaker and to matters not related to the scheduled hearing. There were no comments from the public. Preliminary Matters: Chair Szabo stated, "We are now convening as the adjudicating body to hear and decide the appeal, identified as SWAB Case 2019-01, which is an appeal from the Engineering and Facilities Department Director's denial of a protest filed by Denali Disposal from the award of contract 2019-25 for Residential and Commercial Solid Waste Collection and Recycling Services to Waste Collections of Alaska Inc. At this time if any members of the Board have financial interests or such strongly held opinions that they cannot be an unbiased judge in this matter, now is the time for the members to disclose and request to be excused from participation." Jeff Stewart requested to be excused and read a short statement. He believed he could not be an unbiased judge. The Chair excused Jeff Stewart. The Chair asked any members to disclose any ex parte communications regarding the appeal issues. Ed Mahoney stated that he had had a phone call from Mike Shrewsbury on June 11, but 1 nothing relating to the contract was discussed. The Chair ruled that there were no ex parte issues. The Chair informed the Board that there were two recent emails. • A letter from Stoel Rives LLP representing Alaska Waste. The Chair asked all the parties if there were any objections to the letter being part of the record. Hearing none, the chair ruled that the letter would be part of the record. • A communication from Birch Horton Bittner & Cherot representing Denali Disposal. The Chair asked the Borough if there was any objection to the email being part of the record. Hearing none, the chair ruled that the email would be part of the record. Hearing: The Chair asked if everyone was ready to proceed with the presenting of the evidence. The Chair asked the Clerk to read the brief summary of decision criteria: "The granting of any appeal or part thereof shall require the concurring vote of at least four Board members. Any appeal or part thereof which is not granted by the Board shall be considered denied. The burden of proof rests with the appellant. The board shall not be restricted by the formal rules of evidence, however, the chairperson may exclude evidence irrelevant to the issues appealed. The Board will not consider new issues or evidence not previously made available to the opposing party unless such evidence is solely offered for rebuttal or impeachment." The Chair summarized the way the proceedings would operate. The appellant, Bernadette Wilson, representing Denali Disposal, spoke first for approximately eighteen minutes. She provided her position on why Denali Disposal asked for an appeal of the Kodiak Island Borough Engineering and Facilities decision. She provided a summary of the evidence that she had provided to the Board. She made some comparisons of the evaluations to demonstrate her point and explained why Denali Disposal felt the decision was made erroneously. There were no questions for her at that time. The respondent, David Conrad, representing the Kodiak Island Borough Engineering and Facilities Department, spoke for approximately thirteen and a half minutes. He presented the Engineering and Facilities position and the procurement method used, and he provided some answers to questions that were brought up by Ms. Wilson. There were some questions from the Board for David Conrad, which were asked and answered. Bernadette Wilson had twelve minutes remaining for her rebuttal. She referenced Addendum Number Five and the sequence of emails which were sent. She clarified the experience of Denali Disposal, and she spoke regarding Denali Disposal's position on the evaluation numbers r and comparisons between the ratings of each company. There were some questions from the Board for Bernadette Wilson, which were asked and answered. Ed Mahoney asked a question of the Borough attorney Scott Brant -Erichsen and David Conrad, which both answered. The Chair asked if there was anything else. Bernadette Wilson made a statement regarding new containers. The Chair announced that the evidentiary phase of the appeal had been concluded. Debate and Decision: ED MAHONEY MOVED to uphold the Engineering and Facilities Director's decision and deny the appeal from Denali Disposal. JASON JARDINE seconded the motion. Discussion began on the motion. Ed Mahoney asked the Borough attorney, Scott Brandt - Erichsen, a question, which was answered. The Chair clarified that the goal of the Board was to determine whether the Borough staff acted according to the Request for Proposal (RFP) procedures, that the evaluation was done properly, and that the contract was awarded in the way specified by the RFP. Some of the Board members were concerned about making a decision in such a short amount of time and sifting through all the evidence that they had received. The Board also discussed the possibility of recessing into an executive session for further discussion. ED MAHONEY MOVED to recess into executive session. STEVEN NEFF seconded the motion. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY. STEVEN NEFF MOVED to include recording staff Martha Barnett, Tara Welinsky, Patricia Valerio, and Borough attorney Scott Brant -Erichsen in the executive session. NATHAN SVOBODA seconded the motion. ROLL CALL VOTE ON MOTION CARRIED UNANIMOUSLY. BOARD RECESSED INTO EXECUTIVE SESSION at 6:45 p.m. BOARD RESUMED SPECIAL MEETING at 8:07 p.m. Q The Chair stated the motion to uphold the Engineering and Facilities Director's decision and deny the appeal from Denali Disposal was on the floor. ROLL CALL VOTE CARRIED UNANIMOUSLY. Findings of Fact: The Board is affirming the Engineering and Facilities Director's decision because: 1. The Board finds that the procurement was conducted in accordance with the Borough Code, applicable statutes and terms of the RFP. 2. The Board finds that there was a reasonable basis in the record for the selection of the successful proposer. 3. The Board finds that the procurement officials considered the proposals fairly and honestly. 4. The Board finds that the procurement officials acted within the scope of their discretion in conducting the procurement and selecting the successful proposer. 5. The Board finds that any errors asserted by appellant, even if present, were insufficient to change the result of the procurement. 6. The Board finds that the procurement officials had the discretion to exclude the recycling component and did not abuse that discretion. 7. The Board finds that the procurement officials acted in accordance with the Borough Code and the RFP when they denied release of scoring tabulations and proposals prior to the award of the contract by the Assembly. 8. The evaluation process is entitled to a presumption of regularity. 9. While not an optimal process, there was no evidence of overt bias or unfairness in the execution of the evaluation. 10. The evaluation appears to have rated companies on their merits. Therefore, the Board finds that the challenge to the evaluation process is denied. 11. The proposers had notice that there would be no preference for women or minority owned businesses prior to the deadline for responding to the RFP. The fact that no preference would be provided was in the RFP and in Addendum Number Five. ED MAHONEY MOVED to approve the Findings of Fact. NATHAN SVOBODA seconded the motion. ROLL CALL VOTE CARRIED UNANIMOUSLY. The Chair stated there was one more Finding of Fact. 0 12. The Board finds that the procurement officials had the discretion to negotiate with only one proposer and did not abuse that discretion. STEVEN NEFF MOVED to adopt the final Finding of Fact. JASON JARDINE seconded the motion. ROLL CALL VOTE CARRIED, Four in favor (Jason Jardine, Steven Neff, Nathan Svoboda, and Nick Szabo) and One opposed (Ed Mahoney). The Chair stated, "According to Appellate Rule 602, the appellant or the respondent has the right of appeal to the Superior Court of the State of Alaska from our final decision. Should you wish to exercise your right of appeal, you must do so within 30 days from the date of distribution of our written decision. Failure to do so will forever bar you from any appeal of this decision." STEVEN NEFF MOVED to adjourn. NATHAN SVOBODA seconded the motion. ROLL CALL VOTE CARRIED UNANIMOUSLY. SPECIAL MEETING ADJOURNED at 8:15 p.m. kill'-I&IM1417:YA Qwavtc) tricia Valerio, Board Secretary KIB Engineering/Facilities Department APPROVED BY: iW Szabo, Chair Solid Waste Advisory Board Date: (2-12 Date: v� A /;