A - Town Council Meetings

SPECIAL TOWN COUNCIL MEETING Tuesday September 10, 2024 4:45 p.m. Municipal Complex, Council Chambers 100 Ann Edwards Lane, Mount Pleasant, SC 29464 MINUTES 1. Call to Order Mayor Haynie called the meeting to order at 4:46 p.m. Daniel Brownstein, Howard Chapman, Laura Hyatt, Guang Ming Whitley, Jake Rambo, John Iacofano, Gary Santos and Carl Ritchie were all present. 2. Public Comment Zach Kern, said he is the attorney of record for today and stated for public comment, if there is anyone who is a bidding firm that is not Artigues, they will be given a special designation to speak after the Town and Artigues have presented. Mayor Haynie said the Town will be given five minutes for a presentation, then Artigues will be given five minutes to present, then any other bidding firms as necessary will be allowed five minutes to present. There will be a question-and-answer period by Town Council, and then a rebuttal period of three minutes each will be given to the Town and Artigues. After that, Council will deliberate and vote. 3. Appeal of Bids and Purchases Committee Finding and Determination from August 20, 2024 Special Meeting regarding the Town’s Landscape Maintenance Services Contract. August 20, 2024 Bids & Purchases Committee Meeting Minutes Ms. Cotov said the Town issued a best value bid on June 25, 2024, for landscape maintenance services which was opened July 25. She said the August Bids & Purchases Committee approved staff’s recommendation to award four landscape maintenance areas and provided additional background information as shown. Ms. Cotov reviewed the findings and determination. Ms. Cotov also presented some additional information and clarifications. Page 2 of 10 Ms. Cotov said that if Area 1 is re-bid, we would not be able to issue Area 2 until we know who the successful bidder is, because if Artigues is not awarded Area 1, they should be eligible as the best value bid for Area 2. Mr. Pagliarini said there are three specific issues crucial to this decision. The first is that the management plan that was left out on the bid by Peggra was material. It was a very important part of the plan, and staff believes that the bid amount would have substantially changed had they included it, so this more than a $200,000 difference in bid. Secondly, as Ms. Cotov stated, Peggra has never worked for the Town, and third, review of this compromises our entire bid process. Mayor Haynie said that was the Town’s presentation and Artigues’ representative would now be given the opportunity to present. Ms. Bright Ariail stated she is representing Artigues, and thanked Council for the opportunity this evening. She said she concurred with much of what the Town representatives have stated. Ms. Ariail said that the bid that was submitted by Peggra Farms was non-responsive, and before bids can be considered it must be determined if the bids are responsive. She said if it does not comply with all the requirements of the solicitation, it is considered non-responsive, and the bid can no longer be considered. Ms. Ariail provided a letter including case law supporting their position. She said that by failing to provide a management plan, Peggra Farms should be deemed non-responsive. She said the second issues is that Peggra made some admissions during the hearing for the bid protest that are disturbing and improper. She said they talked about withdrawing their pricing, that they and Pleasant Places, which has common ownership among family members, made the decision to withdraw some of their bids Page 3 of 10 based on, competing, so they would both be awarded portions of the bid. She said that is what they stated in front of the Committee during the protest. Ms. Ariail said lastly she wanted to go over some of the findings of the Committee. She said the town addressed best-value bidding which the Town has done since 2018, which is common in public contracting. Mayor Haynie asked if there were any other bidders that would like to make a presentation. There being none, Mayor Haynie stated the next portion would be a question-and-answer period by Town Council. Mr. Iacofano asked Ms. Ariail to finish her statement on the price difference she was going to make before her time ran out. Ms. Ariail said during the Committee’s deliberations they put a lot of emphasis on the fact that the bid from Peggra Farms was $200,000 less than that of Artigues. She said that is not to be a consideration when you consider a best-value bid. She said there were four factors in the procurement that were to be evaluated, and only one of them was the management plan. The others were price, experience and references/past performance. She said all four of these factors went into the scores that were properly done by the procurement department, but the one thing that was not properly done was that Peggra Farms was given a score of zero on their management plan, when they should have been found non-responsive. She said all the firms were evaluated on their bid price, and in a best-value bid, the Town made the decision to have this as a best-value bid instead of a low bid. She said it was not appropriate to consider a difference in price at that point. Mr. Iacofano asked the basis of the original protest. Ms. Cotov said in their letter there were five pieces that were protested. She said she believed the issues in the protest were addressed, and they (Peggra Farms) said they were the low bid, and the contract should have been awarded to them but Ms. Cotov said it was in fact a best-value bid, not a low bid. She said they indicated they had experience and had not been formally reprimanded, but Ms. Cotov said the Town had never done work with them, so they do not have experience with them, nor could they have been reprimanded. She said they stated one of the other firms had not submitted a bond or check that was required, but Ms. Cotov said it had been submitted. Ms. Cotov said the fourth item was they had information that the other bidder had been terminated, but it had not. She said the last two points were that Peggra farms had information that the other firm did not have the experience, but based on the solicitation and Page 4 of 10 the data provided, the selection committee believed that they did have the experience needed for this project. Ms. Cotov said the last piece is they wanted consideration because they are a minority/woman business enterprise, but the Town does not have that as a consideration, but instead has a local vendor partnership program. She said that Peggra Farms is based in Walterboro, so they would not have qualified. Ms. Cotov said those complaints were all addressed in the protest. Mr. Chapman asked how many years ago we knew that we have individuals with the same family involved in this project. Ms. Cotov said she personally had no knowledge of it, and she still does not know the relationships. Mr. Chapman asked if Mr. Guy Artigues and his firm were asked to work on Highway 17 landscape maintenance because a previous firm we were using was not doing a good job. Ms. Cotov responded in the affirmative, stating there had been in the past concerns about a firm being utilized, and they could not accomplish it, but they were terminated for convenience, not for cause, as they did not have the manpower. Mr. Chapman asked which firm was asked by the Town to take over. Ms. Cotov introduced Kathy Frame, Procurement Officer to respond. Ms. Frame said Pleasant Places was asked to take over the contract that was terminated in 2020 during the pandemic from the firm that was unable to staff it. Pleasant Places was the second low bidder, and they were asked to take over the contract. In response to a question from Mr. Chapman, Ms. Frame said she believed the owner of Pleasant Places was Mr. Guy Artigues. Mr. Chapman asked if Mr. Guy Artigues is also Peggra Farms and Ms. Frame said she did not believe that was the case. Mr. Chapman asked about comments made during the bid protest, and Ms. Frame stated Mr. Guy Artigues spoke first, followed by Mr. Gilly Artigues, who she believed is his son, part of Peggra Farms. Mr. Chapman said the issue is the Town was let off the hook with a company that was doing a terrible job on Highway 17, and Mr. Guy Artigues and his firm took over the contract for four years. Mr. Chapman said the reason it went out for bid is there were many issues within the Town that needed to be addressed as far as landscaping. He said we are not giving Peggra Farms the bid. He said the Committee went into executive session, and what was decided upon was to have just the major highways portion re-bid. Mr. Chapman said the Committee felt that a company that was owned and operated, and would still be, except for the name, by Peggra Farms, was doing the work that the Town asked them Page 5 of 10 to take over. He said while they did not put in a management plan, they worked for four years and it was being done well. He said he is suggesting that we re-bid that part, and that was the committee decision, and make sure that Peggra Farms understands that even though they did a great job while they were performing the work for four years, that is not good enough. It must be put on paper. Ms. Whitley asked for confirmation that the Town never contracted with Peggra Farms and they did not work for the Town for four years. Ms. Cotov responded in the affirmative. She asked who owns Peggra Farms. Ms. Cotov said Peggra Farms protested because they said it is a woman- owned business, and it is Renee Artigues. Ms. Whitley asked if she is related to the Artigues’, and Ms. Cotov responded in the affirmative. Ms. Whitley said the company that took over the contract was Pleasant Places, and Guy Artigues is the owner, and Ms. Cotov responded in the affirmative. Ms. Whitley asked who Artigues Landscape and Maintenance is owned by, and Mr. Reese Artigues stated he is the owner. Ms. Whitley asked if Yellowstone had ever contracted with the Town and Ms. Cotov responded she believed we have. Ms. Frame confirmed they have contracted with Yellowstone. Ms. Whitley said she understands that not one firm can win all four areas. Ms. Cotov said Artigues was the best- value bid, and one firm cannot be awarded all four areas, and one firm cannot be awarded major and secondary roadways. Ms. Whitley said even though Artigues was the best-value bidder for areas one and two, they were awarded the bigger contract, which was area one, but if they were not awarded area one, they would bump Yellowstone out of area two and Artigues would be awarded area two. Ms. Cotov responded in the affirmative. Ms. Whitley asked why the bid by Peggra was not rejected for failure to complete the management plan. Ms. Frame said per our solicitation, responsiveness meant they provided their bid guarantee, their bid form, provided acknowledgment of the addendum and they signed everything. She said when they looked at it for responsiveness, they did comply, but when we looked at them for responsibility, they did not comply, so they received zero points. Ms. Whitley said all the grounds for appeal were addressed, so there were no real grounds for the appeal, other than the fact that they failed to submit a management plan. She asked if they were asking to be able submit a management plan and be considered. Ms. Frame said what they were originally asking in the protest was that the contract with Artigues be canceled and it be awarded Page 6 of 10 to them. The Bids and Purchases Committee said they were not going to do that, but instead we will re-bid major roadways, area one. Ms. Whitley said Peggra’s protest was because they were the lowest bidder they should be awarded the contract, as opposed to the way the Town was awarding which was best-value. Ms. Frame responded in the affirmative. Mr. Rambo said he is unclear about what was involved in the management plan. Ms. Frame said part of the reason a management plan is required is we found over the years that low-bid landscaping does not work. She said a contractor is needed to give the Town a plan on how they will handle execution of the services and safety, so we can make sure they are following their plan and performing. Mr. Rambo asked if the family connection with the different firms matters. Ms. Cotov said this is the first time we have done a best-value bid and asked for a management plan because all of this is just too much for one firm which is why it is parsed out in pieces. Mr. Pagliarini said the relationships are irrelevant to this process. Mr. Rambo said the bid of the protester was $200,000 less, but asked if they would have completed the management plan aspect would it not have been that much less. Mr. Pagliarini said we cannot predict that, but it stands to logic that as was stated by staff, with that included it would have almost certainly increased the bid amount as there would be more stuff required. Mr. Rambo asked if Mr. Pagliarini thought the bid solicitations gave very clear directions on what the bids must include. Mr. Pagliarini said this section specifically was highlighted and underlined, and it was mentioned twice, and he does not see how it could have been missed. Mr. Rambo asked why we would want to hire a company that did not follow the simple directions laid out in the bid process. Mayor Haynie said this information was provided by legal counsel. If the appeal decision is overturned, that awards all program areas as originally approved on the original bids. He said we are here to see if we will overturn the Bids and Purchases Appeal decision, not to award or judge bids. Mayor Haynie said if the decision is upheld to rebid, then the rebid on program Area 1, major roadways, they would award the contracts for areas 3 and 4, which is town properties to Artigues, and tree care and maintenance to Yellowstone Landscape. He said the award for area 2 would be held because Artigues was not eligible to receive that for having been the bidder chosen for area 1. Mayor Haynie said the landscape Page 7 of 10 maintenance services were extended for the month of September for all areas. Ms. Whitley said one of Mr. Pagliarini’s three statements as to why the Bids and Purchases Committee decision should be overturned was because the bid process could be undermined. She said listening to this, she sees why that would happen. She said anyone submitting a bid for anything in the town could leave information off their response, and they could protest. She said it would bog down the smoothly running processes of the town. Mr. Pagliarini said that is the exact position staff takes. It has a cascading effect. Part two is bids are secret for a reason and now the information is out, and anyone could come in and bid knowing what was already submitted, so we are effectively discounting the winning bidder’s amount. Mayor Haynie said one of the things that was agreed to is that there will be three minutes of rebuttal from the Town and three minutes from Artigues, at which time deliberation and vote will take place. Mr. Pagliarini said this is an unusual situation where the protesting party is much in alignment with what staff has provided, so technically there is not much to rebut in this circumstance. He said based on the appeal language itself, the five elements that Ms. Cotov read, none of those elements were grounds to overturn the process and require a new bid. Mr. Pagliarini said from a legal standpoint we do not believe there is any cause to overturn the bid as it existed. He said this was a material element of the response, and clearly stated in the bid requirements and all the other bidders provided the information. Mr. Pagliarini said it does stand to reason that we are going to be dealing with potentially months and months of appeals because of the cascading process. He said they believe the process was fair and equitable from the beginning. Ms. Ariail said she agrees that we are basically aligned, but one thing that she thought got bogged down in the committee meeting was the representative from Peggra, who is Peggra Farms owner Ms. Artigues’ son, kept speaking of Pleasant Places and their experience and history with the Town, but that was not Peggra, that was Pleasant Places. She said she felt the Committee was confused by his presentation and believed that work that had been done by Pleasant Places was done by Peggra. Ms. Ariail said in the original solicitation it was a requirement that the bidder shall submit a management plan, how they were going to perform the services. She said it was a performance spec, and asked for Page 8 of 10 project scheduling, quality control issues, and that each program should be addressed separately. She said a schedule that blends safety, traffic and flow and budget must be submitted, which was sent out as an addendum after a pre-bid meeting. Ms. Ariail said when the committee was deliberating, they seemed to be focused on the fairness, and there is case law that talks about fairness in contracting. She said the South Carolina Procurement Review Panel has said while the evaluation does not have to be perfect, it must be fair. She said if this is re-bid it is not going to be fair to Artigues or the other bidders that followed the solicitation and did the work properly. Mr. Reese Artigues, owner of Artigues Landscaping said if you read the transcripts from the protest, he said his brother and nephew were very clear in stating that Peggra and Pleasant Places are essentially the same company. He said they are not. He asked if they are the same company, why did they submit two bids. Mr. Rambo moved to overturn the decision of the Bids and Purchases Committee which would then revert all decisions back to the original decisions, seconded by Ms. Whitley. Mayor Haynie said for clarification that would award all program areas as originally approved beginning October 1. Mr. Rambo responded in the affirmative, as did Ms. Whitley. Mr. Chapman said Highway 17 maintenance throughout the Town is very important. He said by looking at a firm who did the work for four years, working with our off-duty police officers on the street and having a plan that was good enough for four years, it seems like we should at least give them a second chance. He said as to the question of if the bid would be higher if they had included the management plan, they had already been doing it for four years, so why would it be higher. They know exactly what it would cost them. Mr. Brownstein said we are elected to be wise stewards of taxpayer money, and so the net effect of Mr. Rambo’s motion is that we will be paying $200,000 a year extra per year for four years for a total of $800,000 in taxpayer money when we know that essentially the same firm has been providing a quality service. He said that weighs very heavily on his mind. Mr. Iacofano said he has submitted many bids, and they must be completed properly and turned in on time. He said there is a reason something was put in a bid and management and safety is paramount. Page 9 of 10  He said that part of the bid, which was put in the bid on purpose so as to know that management and safety is an integral part of the workings of the company. He said we will undermine and compromise the entire bid process for more than $800,000 over the life of the Town of Mount Pleasant by allowing this to continue. He said he agrees with Mr. Rambo and Ms. Whitley on their motion. He said this was not a money bid, but a best-value bid. He said we should not undermine staff, and it was a fair bid. Ms. Whitley asked if Pleasant Places submitted bids as well. Ms. Cotov responded in the affirmative, that a few were withdrawn, but they submitted for all the areas, but withdrew the secondary roads. Ms. Frame said they had a bid issue and requested to verify their bid. She said their pricing for 19 areas matched their pricing for one area. They realized they priced it incorrectly and requested to withdraw everything but secondary roadways. Ms. Whitley said her thought is that Pleasant Places is owned by the husband and Peggra Farms is owned by the wife, and because the Town said that all four would not be awarded to the same company because it is too much, they created a separate entity that had never worked for the Town in order to try and get all four bids which defeats the purpose of the Town dividing this among four companies. Mayor Haynie called for the vote on the motion to overturn the appeal decision of the Bids and Purchases Committee and revert to the original awards of the contracts to begin on October 1. Mr. Iacofano, Mr. Rambo, Mr. Ritchie, Ms. Whitley and Mayor Haynie voted in favor with Mr. Brownstein, Mr. Chapman, Ms. Hyatt and Mr. Santos all voting opposed. The motion carries with a 5-4 vote. 4. Adjourn There being no further business, the meeting was adjourned at 5:39 p.m. Respectfully submitted, Christine Barrett Clerk of Council September 10, 2024 Page 10 of 10