OFFICE OF ATTORNEY GENERAL FILE ATTORNEY GENERAL January 4, 2011 Mr. Kyle E. Hart Attorney at Law Fabyanske, Westra, Hart & Thomson 800 LaSalle Ave Ste 1900 Minneapolis, MN 55402-2037 Re: North Dakota Mill and Elevator ANB Mil Siding Project Dear Mr, Hart: | provide general counsel legal services to the North Dakota Mill and Elevator (NDM), The NDM forwarded me a copy of the letter you sent to Mike Muire of Heyer Engineering dated December 21, 2010, and a copy of your letter to Chris LeMoine dated December 28, 2010. In your letters you indicate that your client, D&M Roofing Company (D&M) should have been awarded the bid because D&M had the lowest ‘monetary bid for the siding project. North Dakota law provides that a governing body shall enter a contract with the “lowest responsible bidder’. N.D.C.C. § 48-01.2-09. "Lowest responsible bidder” is defined as “the lowest best bidder for the project considering past experience, financial condition, past work with the governing body, and other pertinent attributes that may be identified in the advertisement for bids.” N.O.C.C. § 48-01:2-01(19). The North Dakota Supreme Court has determined that North Dakota's bidding statutes do not require a public entity to award a contract to the lowest bidder. Baukol Builders, Inc. v. County of Grand Forks, 751 N.W.2d 191 (2008). The law provides that an award be to the “lowest responsible bidder’ which means something more than mere financial responsibility, Id, ‘A public entity has discretion to determine the lowest responsible bidder and may ‘consider the bidder's abilty, skill, reputation, integrity, experience, efficiency and ‘capacity. Id. (citing N.D.A.G Opinion 2002-F-04). As allowed by law, the NDM considered other factors besides the base bid amount in awarding the contract. One important factor to the NDM was the time of completion. ‘The bid documents indicate that the date of completion of the project was an important factor that the NDM would consider. The Bid Form indicated “Note: The schedule is very important to the Owner and will be a condition to the Contract award.” ‘TheMr. Kyle & Hart January 4, 2011 Page 2 Completion and Phasing instructions found in section 01160 indicate that “All Work to be substantially complete by the earliest possible date.” The NDM gave great weight to the abilty of Construction Engineers to finish the project by May 1, 2011 Not only was D&M’s bid completion date almost 4 months later than the next lowest monetary bidder, but D&M's bid also stated a completion date of 8/31/2010, a date that hhas already past. In the bid documents, the NDM reserved the right to reject bids for itregularties. A pre-bid meeting was held on November 30, 2010, At that meeting, the NDM explained to the bidders the special project conditions that would need to be implemented to allow the NOM to continue normal operations while the new construction was taking place. The NDM also took into consideration that your client did ‘ot attend the pre-bid meeting when giving consideration to the amount of D&M's base bid. The law does not require the NDM fo award the contract to the lowest monetary bidder, land as such, the NDM does not intend to award the bid to D&M. Sincerely, COS Mekada Lori S. Mickelson Assistant Attomey General vkk cc: Vance Taylor, General Manager, North Dakota Mil & Elevator Karlene Fine, Executive Director, Industrial Commission= FABYANSKE Kyle E Hart WESTRA Dirge 612 353.766 HART & = THOMSON December 28, 2010 YIA E-MAML (clemoine@ndmilcom) Chris LeMaine North Dakota Mill and Elevator Association 1823 Mill Road Grand Forks, ND 58203, Re: North Dakota State Mill & Elevator A/B Mill Siding ‘Our File Nos 84628001 ear Mr: LeMoine: ‘This firm represents D&M Roofing Company ("D&M"), the low bidder on this project. ‘We understand that, despite the fact that D&M was the low bidder, you intend to award the contract tothe second low bidder in violation of North Dakota public bidding law. On behalf of DEM, please consider this letter to be a demand for all public records in your possession or subject to your control that refer or relate to your solicitation of bids for this project, evaluation of such bids, and your communications with the bidders (Nola Dakota Code, Chapter 44.04), We will pay the reasonable costs of copying such records. However, ifthe records cost, more than $100 10 produce, then I would like the opportunity to review the records before designating any for copying Sine Sn ‘Kyle E. Hart KEHisjs cc; Mike Muir, Heyer Enginsering (via fax: 701-280-9686) ‘Dan Hokanson, D&M Roofing Company (via email: dan@dmroofing.us) ‘se asa one See 9% Mp Manet $542 Ma 6239.76 Pa 61235976 wasn| WHT FABYANSKE WESTRA HART & THOMSON December 21, 2010 EACSIMILE (701) 280-9686 Mike Muire Heyer Engineering 1020 36" St. SW Fargo, ND 58103 Re: North Dakota State MIll & Plevator A/B Mil Siding. Dear Me. Mure: ‘This fim represents D&M Roofing Company ("D&M"), the low bidder on this public project. D&M onderstands that the owner intends to award this contract to the second low bidder, based omits “expected” but not contactually required earlier substantial completion and Final completion dats. ‘This ix ao despite tho fact that D&M?s bid was substantially lowe than the second low bid. Please be advised that if the owner elects to award the contract tothe second low bidder, then it will be violating North Dakota's public bidding laws and D&M will seek 10 enforce all of its legal rights. A public owner cannot consider subjective and non-contractually required esiteria when deciding whose bid to accept. If so, then there would be no end to the kind of fraud and favortim that would creep into public contracting. Please let me know by the close of business tomorrow that the contrac is going tobe awarded to D&M. Kyle E. Hart KEHAjs ec: Dan Hokanson (via email) 00 Lee Se 908, Me Minne SED M6235 Fe 1236.82 ween @s02/002