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HomeMy WebLinkAbout80201 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 4= RESOLUTION NO. 8,020 A RESOLUTION AUTHORIZING THE CITY MANAGER TO ACCEPT BIDS AND AWARD CONTRACTS FOR THE PURCHASE OF REFUSE TRUCKS. 39'1 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS: SECTION 1. The City Manager is hereby authorized to accept bids and award contract for the purchase of refuse trucks, as set forth in the attached fact sheets, for a total price not to exceed the budget, payable from the funds specified in the fact sheets. ADOPTED: September 20, 1988 ATTEST: CITYVCL ERK JAN•, CZECH f �0111;� CITY ATTORNEY APPROVED: MAY R LOTTIE SHACKS FORD F -1 Me= 392 PURCHASING FACT SHEET BID NO: 8255 DATE OPENED: July 20, 1988 DEPARTMENT: Public Works DESCRIPTION: Refuse Trucks FUNDING: General & Special Project ACCOUNT NO: 100- 220 - 2110 -7060 / 210- 220 - 8506 -7060 ACCOUNT AVAILABILITY: $876,00.00 APPROPRIATION OR TRANSFER REQUIRED: $ None Little Rock AR RECOWM1@ATION AMID DISCUSSION: It is recommended that the low bid submitted by Perfection Equipment be accepted. There has been an inquiry from the second low bid, Bucy Equipment, as to whether Perfection qualifies for Arkansas Preference. A response from the City Attorney is attached. W moo=" "� BID 4i: 8255 DESCRIPTION: Refuse Trucks, 8 ea. DEPARTMENT: Public Works TABULATION Perfection Equipment ($59,841.00) Bucy Equipment 60,788.00 Downing Sales & Service 61,110.02 Bucy Equipment 61,213.00 Perfection Equipment 61,242.00 Davis Truck & Trailer 61,472.00 Ability Truck 64,632.24 Perfection Equipment 65,089.00 Bucy Equipment 65,961.22 Ability Truck 66,176.00 Bucy Equipment 66,386.22 Ability Truck 69,878.62 Moody equipment 73,877.00 Ability Truck 84,055.00 ($478,728.00) 393 ". City of Little Rock Mark Stodola City Hall 39'f . :Z City Attorney Markham at Broadway °'`;`'s;r ` .. Little Rock, Arkansas 72201 r<_. _. 501/371 -4527 August 22, 1988 Mr. Jerry Paul Purchasing Department City Hall, Third Floor Little Rock, AR 72201 LEGAL OPINION NO. 88 -31 Dear Mr. Paul: QUESTION PRESENTED 1. whether a company that rents office space and maintains an inventory of replacement parts for sanitation trucks qualifies as a bidder entitled to the Arkansas Preference codified in Ark. Code Ann. § 19 -11 -259 (b) (1987)? BRIEF ANSWER 1. Yes. The company has an office in Arkansas, pays taxes in Arkansas, and maintains an inventory of supplies for the sanitation trucks that were the subject of the bid. Under the facts and circumstances of this case, the City cannot say the company is precluded from claiming the preference. STATEMENT OF FACTS on June 27, 1988, the City issued an "Invitation to Bid" for sanitation trucks (Bid No. 8255). The bid was opened on July 20, 1988. Two of the companies submitting bids were Perfection Equipment Company of Little Rock, Arkansas, ( "Perfection ") and Bucy Equipment Company, Inc., of Rector, Arkansas ( "Bucy "). Both of these companies claimed the Arkansas preference codified at Ark. Code Ann. § 19 -11 -259 (b) (1987). Other bids were submitted including one from an out of state firm. At the July 20, 1988, bid opening, Perfection had the lowest responsible bid. On July 22, 1988, Bucy sent a letter of protest to this office -- with copies to the Purchasing Department and Mayor Lottie Shackelford -- suggesting that Perfection was not entitled to the Arkansas preference. Perfection sent a response on July 29, 1988, countering that it was entitled to the preference. Bucy sent another objection letter on August 4, 1988. Ill N = = 'E This is the first year that Perfection has been in the state. our investigation shows that on July 1, 1988, Perfection was issued Arkansas Sales Tax Permit 1- 60- 48110. Perfection has an office at 5500 Patterson Drive in Little Rock. This office is leased from Action Material Handlings, Inc. The local sales agent, Roger Smith, maintains an office and a secretary at this location. The inventory includes hydraulic parts that are used for the repair of the vehicles. In addition, Perfection has an agreement with a local company to provide repairs. Finally, according to Smith, the parent company for Perfection maintains a demonstrator truck in the State of Arkansas. Smith reports that Perfection has been permitted to claim the Arkansas preference in other bids in the state. Bucy has been in operation for 40 years. It reportedly keeps sanitation trucks on its premises in Rector. However, there is no indication that it has on hand the exact type of truck that was the subject of this bid. DISCUSSION The central question is whether Perfection qualifies as a resident firm entitled to the Arkansas preference.' Whether a firm is considered an Arkansas firm entitled to the preference is governed by statute. "Firm resident in Arkansas" shall mean any individual, partnership, association, or corporation, whether domestic or foreign, which maintains, at the time of submission of the bid, a bona fide place of business and a representative inventory of the commodities on which the bid is submitted within the State of Arkansas. In the case of a corporation, the corporation is duly qualified to do business and is in good standing under the laws of the State of Arkansas.... Ark. Code Ann. § 19 -11 -259 (a) (3) (1987). ' The Arkansas bid preference is not applicable unless an out of state firm bids. In this instance, Downey Sales and Service, a Missouri firm, submitted a bid. Thus, the provisions of this statute apply. Ark. Code Ann. § 19 -11 -259 (b) (2) (1987). [2] 395 =MOM== M In this instance there is little question about Perfection maintaining a bona fide place of business since there is a business address in Arkansas at which the local agent -- Roger Smith -- can be contacted by phone, by writing, or in person. The question is whether there is a "representative inventory of the commodities" on which the bid is submitted. "Commodities" shall mean supplies, goods, material, and equipment of every kind and character... Ark. Code Ann. § 19 -11 -259 (a) (4) (1987). In other words, was there a representative inventory of the supplies, goods, material, and equipment of every kind and character on which the bid is submitted. Two interpretations can be given to this requirement. The first is that in order to qualify for the preference a bidder must have supplies, etc., of every kind and character of the exact item bid in order to meet the requirement of maintaining a representative inventory. The other interpretation is that the bidder must have some of the supplies, or materials, etc., of the item bid in order to qualify for the preference. Either interpretation results in the same conclusion: Perfection should be awarded the bid. If the first interpretation is used it is obvious that neither party qualifies for the preference, and therefore Perfection still has the low bid. If the second definition is used then Perfection has some inventory available in the form of supplies (or material) associated with the hydraulic mechanism for the trucks. Therefore, it is also entitled to the preference and has the low bid. There are no cases directly on point under the present Arkansas preference statute. However, in a case decided under the former statute, containing virtually the same definition of a resident firm, the Arkansas Supreme Court concluded that the lack of a substantial inventory of the item bid would not defeat a preference claim. Stebbins and Roberts, Inc., v. Pulaski Glass and Mirror, 233 Ark. 449, 456, 345 S.W. 2d 912, 916 (1961). The Court noted: Neither do we attach significance to the amount of inventory held by Pulaski at the time of the bid -- nor to the fact that no additional employees are retained -- nor that advertising had not been entered into. After all, the paint [3] 39b 39'7 business was a new line for Pulaski, not be expected to have the m, supplies on hand, and available to public, to the extent offered by an paint dealer. 233 Ark. at 456, 345 [Emphasis supplied] and it would iterials and the general established S.W. at 916 This quotation is particularly applicable to this situation since Perfection is only now getting established in this business in Arkansas, while Bucy has been established here for over 40 years. It is our understanding that in the business of selling sanitation trucks no dealer actually keeps on hand inventory of the specific type of truck requested. At most there are demonstrators or catalogs from which bid specifications are answered. Upon getting a contract the bidder has to order the items from out of state. On this point we note that both Perfection and Bucy are incapable of meeting the requirements of the bid immediately but would need at least 90 -120 days after the contract award to provide the trucks. In short, despite Bucy's claim that they have some sanitation trucks on their lot, the fact is that neither company has a representative inventory of the actual truck bid. This investigation and past experience in the purchase of large vehicles -- e.g., fire trucks, ambulances -- leads us to conclude that the trade practice is to not keep the actual vehicles on hand. Consideration of this trade practice also leads us to conclude that the representative inventory requirement has been met by both Bucy and Perfection. To be sure, Bucy may have more inventory than Perfection. But, the statute does not differentiate between the amount of inventory that is maintained as long as the inventory maintained is representative of the commodity bid. CONCLUSION Under the facts and circumstances of this case, Perfection has met the minimum necessary requirements to qualify for the Arkansas preference. Because of the ruling in Stebbins and Roberts v. Pulaski Paint and Glass noted above, the City is unable to say that Perfection is not entitled to this preference. Therefore, if Perfection provided the lowest responsible bid, it should be granted the contract despite the protest made by Bucy. [4] M = M M This opinion was prepared by Assistant City Attorney Thomas M. Carpenter and was read and approved by me on this date. CITY ATTORNEY HAS /80923/vw [ 5 ] 39es