All meeting minutes posted on the township website are unofficial minutes. Official copies of minutes may be obtained from the township clerk.

Minutes: June 27, 2013

A. OPENING OF REGULAR MEETING

1. Call to Order

A regular meeting of the Randolph Township Council was called to order at 5:00 p.m. by Mayor MacArthur. This meeting is held pursuant to the New Jersey Open Public Meetings Act. Adequate notice of the meeting has been provided by posting written notice of the time, date, location, and to the extent known, the agenda of the meeting in Randolph Township. This notice was posted on the bulletin board within Town Hall, it was filed with the Township Clerk, and it was provided to those persons or entities requesting notification. Notice was also provided to the Randolph Reporter and the Morris County Daily Record on December 7, 2012, by e-mailing them the annual resolution adopted by the Council on November 29, 2012. The annual resolution, which included this meeting date, was advertised in the Randolph Reporter, the official newspaper of the Township of Randolph, and the Daily Record on December 13, 2012. The time change for this meeting was advertised in the Randolph Reporter on June 20, 2013.

2. Roll Call

PRESENT:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys (arrived at 7:30 p.m.)
Mayor MacArthur

ABSENT: None

Also present: Tiena Cofoni from the Law Office of Edward Buzak.

3. Mayor MacArthur led the Pledge of Allegiance.

B. EXECUTIVE SESSION

WHEREAS, Section 8 of the Open Public Meetings Act, Chapter 231, P.L. 1975 (N.J.S.A. 10:4-12) permits the exclusion of the public from a meeting under certain circumstances; and

WHEREAS, this public body is of the opinion that such circumstances presently exist,

NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the Township of Randolph, in the County of Morris, and State of New Jersey as follows:

1. The public shall be excluded from the remaining portion of this meeting.

2. The general nature of the subject matter to be discussed is as follows:

Personnel
Wolosky v Randolph
Stonybrook Day Camp

3. As nearly as can now be ascertained, the matter or matters to be discussed at this time will be disclosed to the public at such time and under such circumstances as are prescribed by law.

4. At the conclusion of the Executive Session, Council may reconvene in public session for the purpose of taking formal action.

Councilman Guadagno made a motion to enter into Executive Session at 5:03 p.m. Councilwoman Veech seconded the motion, and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Mayor MacArthur

NAYS: None

ABSENT: Deputy Mayor Loveys

Councilwoman Carey made a motion to return to Open Session at 6:50 p.m. Councilman Napoliello seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Mayor MacArthur

NAYS: None

ABSENT: Deputy Mayor Loveys

Councilman Hirniak made a motion to accept the terms of the settlement negotiated by our Township Attorney, which would result in a one-time payment of $675 to settle outstanding costs incurred by Plaintiff’s counsel. Councilman Guadagno seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech

NAYS: Mayor MacArthur

ABSENT: Deputy Mayor Loveys

C. APPOINTMENTS

1. Traffic Advisory Committee—Student Liaison Katrina Vinkman—2 year term

Moved to August 2, 2013 agenda.

D. RECOGNITION/PROCLAMATION

1. Eagle Scouts

Mayor MacArthur recognized and congratulated four Eagle Scouts, Thomas Cohrs, Colin Ebneth, Connor Manning, and Stephen Snelson. The Mayor commended each on his project, gave a biography of each scout, explained that there were four individual proclamations, and read the combined proclamation below. Eagle Scouts Thomas Cohrs, Colin Ebneth, Connor Manning, and Stephen Snelson described their projects and were each presented with a Proclamation, a plaque, and a Randolph Township pin.

WHEREAS, Thomas Cohrs, Colin Ebneth, Connor Manning, and Stephen Snelson are members of Boy Scouts of America, Boy Scout Troop 53 or 54, and

WHEREAS, Thomas, Colin, Connor, and Stephen have achieved the rank of Eagle Scout in the Boy Scouts of America, and

WHEREAS, in accomplishing this, Thomas, Colin, Connor, and Stephen completed a significant service project which they just described to us and which is detailed individually on their proclamations, and

WHEREAS, in achieving this accomplishment, Thomas, Colin, Connor, and Stephen have reached the zenith of scouting, and as such are a source of pride and inspiration for all of Randolph,

NOW THEREFORE BE IT PROCLAMED, by Randolph Township, that Eagle Scouts Thomas Cohrs, Colin Ebneth, Connor Manning, and Stephen Snelson are recognized and congratulated for this exceptional achievement.

2. Swearing in Police Officers

Manager Lovell’s comments included the following:

• All three candidates have been recruited from a police academy.
• They are joining a great department with national accreditation.
• And with recent retirements, a young department with many opportunities.
• These men impressed the Randolph delegation. Their collective backgrounds will bring strengths to the department gained from their respective educations, work in other careers, and in two cases, their military service.

David Christopher Spence

• Graduate of Richard Stockton College, Bachelor of Science in Business Finance.
• Member of the New Jersey National Guard 2003-2009. Deployed in Iraq.
• Worked in the private finance sector both for Chase and Northwestern Mutual.

Mayor MacArthur swore in David Spence.

Christopher Carbonaro

• Graduate of the University of Phoenix, BS in Global Business Management.
• Fluent in Japanese and conversant in Spanish.
• Service in U.S. Air Force 1999-2004 with assignments overseas in Japan and England.
• Worked in the public sector and private sector for Nidec America Corporation, Home Depot as an Asset Protection Specialist, and Iwatani Corporation of America.

Christopher Carbonaro was sworn in by his father.

Sean Verbist

• Graduate of Montclair State University, BA in Justice Studies.
• Member of the National Criminal Justice Honor Society—Sigma Alpha Lambda.
• A.A. degree in Criminal Justice from Bergen Community College.
• Served as a Police Reserve Officer—Paramus, Park Ranger—Paramus, and Police Dispatcher in Montclair.

Mayor MacArthur swore in Sean Verbist.

E. OPEN TO THE PUBLIC

Seeing no one from the public, the public portion was closed.

F. MANAGER’S REPORT

Manager Lovell reported:

• He is working with Dan Mason and going through the process of hiring a Finance Officer. He has received a couple of resumes and hopes to get more.
• He is setting a date, hopefully in July, for the oral evaluation for the Chief of Police position. The two Lieutenants are vying for the position. The oral review board consists of himself, Jim Loveys, Roxbury Manager Christopher Raths, and Randolph School District Superintendent Dr. David Browne.
• He attended the Wildlife Management Committee meeting. One important issue raised was the concern about residents feeding wildlife, specifically deer. Deputy Mayor Loveys will report on this issue in August.

G. APPROVAL OF MEETING MINUTES

1. Approval of Regular Meeting Minutes of March 2, 2013 and March 7, 2013

Councilman Guadagno made a motion to approve the meeting minutes of March 2, 2013 and March 7, 2013. Councilman Napoliello seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

H. COMBINED ACTION RESOLUTIONS

Item #11, Municipal Building HVAC: The Council had authorized a study, is this design the next step?

Manager Lovell explained that Strunk-Albert Engineering is going to do the design specifications so the project can go out to bid this year. They have worked on several projects in the past and have experience working in the building.

Councilman Guadagno made a motion to approve the Combined Action Resolutions. Deputy Mayor Loveys seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

1. To Increase Authorization Amount of Purchases under a NJ State Contract #M0002 Industrial/MRO Supplies and Equipment from Various Vendors for 2013

R-200-13

WHEREAS, the Township of Randolph utilizes New Jersey State Contract #M0002 Industrial/MRO Supplies & Equipment through various vendors for all departments in the Township; and

WHEREAS, the original resolution indicated the purchases would not exceed $50,000.00; and

WHEREAS, purchases under this contract are already approaching that amount and additional purchases are expected through year’s end; and

WHEREAS, those additional purchases are anticipated to be approximately $25,000; and

WHEREAS, funds are available for this purpose.

NOW, THEREFORE BE IT RESOLVED that the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, authorize the amendment of R 74-13 from $50,000 to $75,000 to purchase from New Jersey State Contract #M0002 Industrial/MRO Supplies & Equipment as needed for all departments in the township.

2. Refund Outside Tax Sale for 102 Shongum Road to US Bank for Pro Capital 1—$39,067.58

R-201-13

WHEREAS, Outside Tax Sale Certificate #1934 held by US Bank for Pro Capital, I, assessed to Judith Mackenzie, Block 208.02, Lot 7, 102 Shongum Road; and

WHEREAS, the above mentioned Tax Sale Certificate has been redeemed through the Tax Collector, including principal and interest in the amount of $39,067.58.

NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the Township of Randolph, County of Morris, that the Treasurer be instructed to refund $39,067.58 to US Bank Cust for Pro Capital I, holder of Tax Sale Certificate #1934.

3. Refund 2008 Tax Overpayment to Chabad of Randolph—$16,165.19

R-202-13

WHEREAS, Chabad of Randolph has been granted to be a tax exempt property for the tax year 2008 by the Tax Court of New Jersey on Block 166, Lot 1.01, known as 48 W. Hanover Ave.; and

WHEREAS, an overpayment exists as a result of the exemption for the year 2008 in the amount of $16,165.19.

WHEREAS, it is recommended by the Tax Collector that this overpayment be refunded at this time.

NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the Township of Randolph, County of Morris, that the Treasurer be instructed to refund the overpayment of $16,165.19 to Chabad of Randolph.

4. Release Road Opening Cash Bond for the Purpose of Repaving a Driveway at 14 Trout Brook Lane to Christopher Olive—$500.00

R-203-13

WHEREAS, the Engineering Department has received a request from Christopher Olive, for the release of a $500.00 cash road opening bond posted for the purpose of repaving an existing driveway at 14 Trout Brook Lane, Mendham;

WHEREAS, the Road Opening Bond consisted of a $500.00 cash bond, which was received and deposited with the Finance Department on June 6, 2013 and;

WHEREAS, the Applicant was required to post this cash bond to guarantee the repaving of existing driveway at 14 Trout Brook Lane within the Township Right of way, and;

WHEREAS, the Engineering Department has inspected the road opening work, and found it to be acceptable.

NOW THEREFORE, BE IT RESOLVED by the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey that it is recommended by Raffaele Carchia, Engineering Administrator that the Cash Road Opening Bond in the amount of $500.00 be refunded to Christopher Olive, 14 Trout Brook Lane, Mendham, NJ 07945.

5. Authorizing the Award of a Contract to Roxbury Auto Wreckers of Kenvil for the Purchase of a 2014 20-Ton Trailer for Public Works—$19,236

R-204-13

WHEREAS, the Township of Randolph (“Township”) wishes to purchase a 20-ton trailer with air brakes for the Public Works Department; and

WHEREAS, the Purchasing Agent has solicited quotes from five different vendors for this item; and

WHEREAS, four of the vendors responded; and

WHEREAS, quotes were received from the following and for the prices listed:

Performance Trailers Inc., Flanders, NJ—$20,542;
Jesco, Inc., South Plainfield, NJ—$22,000;
Harter Equipment, Inc., Millstone Twp, NJ—$21,182;
Roxbury Auto Wreckers, Kenvil, NJ—$19,236; and

WHEREAS, the quote from Roxbury Auto Wreckers of Kenvil, NJ was the least expensive; and

WHEREAS, the Public Works Director and Foreman have reviewed the quote and recommend the award to Roxbury Auto Wreckers of Kenvil, NJ; and

WHEREAS, the quotes were not solicited through receipt of sealed quotes, therefore the requirements of N.J.S.A. 19:44A-20.5 (Anti Pay-to-Play Legislation) apply; and

WHEREAS, in accordance with the Anti Pay-to-Play Legislation, Roxbury Auto Wreckers submitted to the Township the Political Contribution Disclosure Form, Stockholder Disclosure Certification and Business Entity Disclosure Certification as required; and

WHEREAS, Roxbury Auto Wreckers has also submitted to the Township a New Jersey Business Registration Certificate, as required; and

WHEREAS, funds are available for this purchase in account 04-215-55-954-301.

NOW, THEREFORE BE IT RESOLVED by the Township Council of the Township of Randolph, County of Morris, State of New Jersey, as follows:

1. The Township hereby awards a contract to Roxbury Auto Wreckers of Kenvil, NJ for the purchase of a 2014 Novae Sure-Trac 20-ton trailer with air brakes for the price of $19,236.
2. This Resolution shall take effect immediately.

6. Authorizing Purchases under Somerset County Co-Op for Document Scanning and Microfilming Services from Foveonics for 2013—Not to Exceed $45,000

R-205-13

WHEREAS, the Township of Randolph utilizes Somerset County Co-op #2-SOCCP Contract #CC-0095-13 Document Scanning and Microfilming Services through Foveonics for various departments in the Township; and

WHEREAS, these purchases are made on an as-needed basis; and

WHEREAS, these purchases will not exceed $45,000 for 2013; and

WHEREAS, funds are available for this purpose.

NOW THEREFORE, BE IT RESOLVED that the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, authorize the Township of Randolph to make purchases under Somerset County Co-op #2-SOCCP Contract #CC-0095-13 Document Scanning and Microfilming Services through Foveonics for various departments in the Township as needed.

7. Authorizing 6-12-2013 Amended Shared Services Agreement with Mendham Township for Seeing Eye Lease Dated July 1, 2013

R-206-13

WHEREAS, Randolph Township passed Resolution #164-13 on May 2, 2013 authorizing the Mayor to sign a Lease Agreement between the Township of Randolph and the Township of Mendham for the lease of the property and buildings known as the Seeing Eye Property; and

WHEREAS, this Agreement did not meet with the approval of the Township of Mendham; and

WHEREAS, the Agreement was amended on June 11, 2013; and

WHEREAS, both parties agree to the terms of the Amended Lease Agreement, attached hereto, which shall commence July 1, 2013.

NOW, THEREFORE, BE IT RESOLVED that the Mayor is hereby authorized to sign the Lease Agreement.

8. Refund Registration for Summer Teen Camp to Jennifer Rosenberg—$925.00

R-207-13

WHEREAS, Jennifer Rosenbergen registered her child for Randolph Township Summer Teen Camp and paid the fee of $925.00; and

WHEREAS, her daughter will not be attending Randolph Township Summer Teen Camp program due to a conflict.

NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey that it is recommended by Russ Newman, Director of Parks, Recreation and Community Services that $825.00 be refunded to Jennifer Rosenbergen, 8 Hillcrest Drive, Randolph, NJ 07869.

9. Authorizing the Settlement of Certain Residential Tax Appeals—Block 201, Lot 37.06—12 Heather Lane

R-208-13

WHEREAS, appeals of the real property tax assessments of the following properties have been filed in the Tax Court of New Jersey:

; and

WHEREAS, the property owner and the Township have agreed to a settlement for the pending appeals; and

WHEREAS, the property owner and the Township of Randolph have further agreed that the refund resulting from the settlement shall be made within sixty (60) days of the date of entry of Judgment by the Tax Court of New Jersey; and

WHEREAS, the property owner has agreed to waive pre-judgment interest due on any refunds payable as a result of the proposed settlement provided that the refund is made within sixty (60) days of the date of entry of Judgment by the Tax Court; and

WHEREAS, the settlement of this matter, as set forth herein, is in the best interest of the Township of Randolph and is recommended by the Township Tax Assessor and should, therefore, be settled pursuant to the terms set forth herein.

NOW, THEREFORE, BE IT RESOLVED, by the Township Council of the Township of Randolph, in the County of Morris, State of New Jersey, as follows:

1. The settlement of the following tax appeals filed at the Tax Court of New Jersey is hereby authorized as follows:

2. Upon receipt of the Tax Court Judgment, the Township Tax Collector is hereby authorized to refund the amount due and to be paid within sixty days of the issuance of the Judgment by the Tax Court of New Jersey.

3. This resolution shall take effect immediately or as otherwise provided by law.

10. Release of Police Detail Escrow

R-209-13

WHEREAS, the Finance Department received escrow funds for Police Detail.

WHEREAS, the Detail work has been completed.

THEREFORE, BE IT RESOLVED by the Mayor and Council of the Township of Randolph, Morris County, New Jersey that it is recommended by the Finance Department that the escrow funds for the following amounts be refunded:

Randolph Soccer Club $2,520.00
High Point Utilities $142.00
Randolph Education Foundation $186.78

11. Authorizing Award of PSA to Strunk-Albert Engineering for Mechanical Engineering Services for Municipal Building HVAC Design and Specifications

R-210-13

WHEREAS, the Township of Randolph (“Township”) requires Mechanical Engineering Services for the Township of Randolph Municipal Building HVAC Upgrade Project; and

WHEREAS, Elizabeth Crescibene, Purchasing Agent, has determined and certified in writing that the value of these services will exceed $17,500; and,

WHEREAS, the Township has agreed to retain Strunk-Albert Engineering located at 804 Seven Bridge Rd, Route 209, East Stroudsburg, PA 18301 to provide the necessary Mechanical Engineering Services for the Township of Randolph Municipal Building HVAC Upgrade Project for a total amount not to exceed $28,900; and

WHEREAS, the anticipated term of this contract is until the Township of Randolph Municipal Building HVAC Upgrade project is fully completed; and

WHEREAS, the contract with Strunk-Albert Engineering is for a total amount not to exceed $28,900 and was not solicited through receipt of sealed bids or competitive contracting, therefore the requirements of N.J.S.A. 19:44A-20.5 (Anti Pay-to-Play Legislation) apply; and

WHEREAS, in accordance with the Anti Pay-to-Play Legislation, Strunk-Albert Engineering has submitted to the Township the Political Contribution Disclosure Form, Stockholder Disclosure Certification and Business Entity Disclosure Certification as required; and

WHEREAS, Strunk-Albert Engineering has also submitted to the Township a New Jersey Business Registration Certificate, as required; and

WHEREAS, there are funds available for the retention of such professional services; and

WHEREAS, said professional services may be retained without competitive bidding pursuant to the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.

NOW, THEREFORE BE IT RESOLVED by the Township Council of the Township of Randolph, County of Morris, State of New Jersey, as follows:

1. The Township hereby hires, employs and retains Strunk-Albert Engineering having an office at 804 Seven Bridge Rd, Route 209, East Stroudsburg, PA 18301 to provide Mechanical Engineering Services for the Township of Randolph Municipal Building HVAC Upgrade Project effective June 28, 2013 until the Municipal Building HVAC Upgrade project is fully completed.
2. Strunk-Albert Engineering shall be compensated for a total contract amount not to exceed $28,900.
3. The contract with said firm is for professional services and exempt from the bidding requirements under the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.
4. The award is also subject to compliance with the Equal Employment Opportunity Requirements pursuant to N.J.S.A. 10:5-31 et seq. and N.J.A.C. 17:27.
5. The Mayor and Township Clerk, together with all appropriate officers, employees, professionals and staff of the Township are hereby authorized and directed to take all steps necessary to effectuate the purposes of this Resolution.
6. It is hereby directed that Notice of Award of this Contract shall be published once in the official designated newspaper of the Township within ten (10) days of the date hereof.
7. This Resolution shall take effect immediately.

12. Authorizing Change Order #2 to JA Alexander to Reduce Contract by $3,379 for the Community Center/Library Bringing New Contract Total to $277,389.00

R-211-13

WHEREAS, JA Alexander, contracted by the Township to perform site work at the Community Center/Library; and

WHEREAS, the original contract with JA Alexander was $269,237; and

WHEREAS, Changer Order #1 was previously approved and resulted in a increase of $11,531; and

WHEREAS, it is recommended by the Township Engineer that the following Change Order be approved:

Change Order #2—Final quantity changes for a reduction of $3,379.

NOW, THEREFORE BE IT RESOLVED, by the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey that Change Order #2 be approved and the contract amended.

13. Authorizing a Purchase from Beyer Ford under MCCPC Contract #15C for Pick-Up Truck, Extended Cab for Fire Prevention Bureau—$22,770.00

R-212-13

WHEREAS, the Township of Randolph wishes to purchase a 2013 full-size pick-up truck extended cab for the Fire Prevention Bureau; and

WHEREAS, Beyer Ford has a contract on the MCCPC (Contract #15-C, Item 6D) for this item, specifically, a Ford F150 4x4 Super Cab; and

WHEREAS, the cost for the purchase of this item is $21,160 and additional options (power equipment group, skid plates and step bars) total $1,610; and

WHEREAS, funds are available for this purchase; and

WHEREAS, the Township of Randolph desires to award a contract for the purchase of a Ford F150 4x4 Super Cab to Beyer Ford of Morristown, NJ under MCCPC Contract #15-C, Item 6D for $22,770.

NOW, THEREFORE BE IT RESOLVED that the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, authorize the Township of Randolph to purchase a Ford F150 4x4 Super Cab for the Fire Prevention Bureau from Beyer Ford under MCCPC Contract #15-C, Item 6D for $22,770.

14. Refund Escrow for 27 Stonehill Road to James Isherwood—$541.00

R-213-13

WHEREAS, the Planning and Zoning Department received escrow funds from James Isherwood, 27 Stonehill Road, Randolph, NJ, Block 22, Lot 22, and in the amount of $1,000.00; and

WHEREAS, the project has been completed and closed out and there are no outstanding payments due.

NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey that it is recommended by Darren Carney, Planning and Zoning Administrator the remaining escrow funds in the amount of $541.00 be refunded to James Isherwood, 27 Stonehill Road, Randolph, NJ 07869.

___________________
Darren Carney, Planning & Zoning Administrator

15. Amending Resolution R-78-13 for Purchases Under Morris County Contract #14 Catch Basins & Manhole Castings from Various Vendors

R-214-13

WHEREAS, the Township of Randolph utilizes Morris County Cooperative Pricing Council (MCCPC) Contract #14 Catch Basins & Manhole Castings through various vendors for all departments in the Township; and

WHEREAS, the original resolution indicated the purchases would not exceed $50,000; and

WHEREAS, purchases under this contract are already approaching that amount and additional purchases are anticipated through year’s end; and

WHEREAS, those additional purchases are anticipated to not exceed an additional $10,000; and

WHEREAS, funds are available for this purpose.

NOW THEREFORE, BE IT RESOLVED that the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, authorize the amendment of R 78-13 from $50,000 to $60,000 to purchase from Morris County Cooperative Pricing Council (MCCPC) Contract #14 Catch Basins & Manhole Castings from various vendors for all departments in the Township as needed.

16. Awarding a Contract for Maintenance of Township’s Fire Apparatus to EL-BO Inc., dba Defender Emergency Products

R-215-13

WHEREAS, the Township of Randolph advertised for a Maintenance Contract for Township’s Fire Apparatus and received bids on June 12, 2013; and

WHEREAS, 1 bid was received; and

WHEREAS, the sole bid was received from the following and for the bid prices listed:

EL-Bo, Inc. dba Defender Emergency Products Sales & Service, Brick, NJ -

Hourly Rate for Routine Service $95.00
Hourly Rate for Emergency Service $95.00
Rate for Annual DOT Inspection $101.95
Cost for pick-up and delivery (per vehicle) from fire department locations to vendor’s facilities $425.00
Percentage Above Cost on Parts used 35%; and

WHEREAS, the Fire Chief and Purchasing Agent recommend the award of the contract to EL-Bo, Inc. dba Defender Emergency Products Sales & Service as the lowest responsive, responsible bidder; and

WHEREAS, the funds for this project will come from 01-201-26-315-308; and

WHEREAS, the Township of Randolph desires to award a contract for the Maintenance Contract for Township’s Fire Apparatus to EL-Bo, Inc. dba Defender Emergency Products Sales & Service of Brick, NJ for the contract period of July 1, 2013 through June 30, 2014 with the option to extend for two one-year contracts or one two-year contract.

NOW, THEREFORE BE IT RESOLVED, by the Township Council, Township of Randolph, County of Morris, State of New Jersey, that a contract be awarded to EL-Bo, Inc. dba Defender Emergency Products Sales & Service of Brick, NJ for the Maintenance Contract for Township’s Fire Apparatus project for the prices noted above per their bid proposal for the contract period of July 1, 2013 through June 30, 2014 with the option to extend for two one-year contracts or one two-year contract.

17. Refund Road Opening Cash Bond for Repaving a Driveway at 5 Appio Drive to Domingo Navarro—$500.00

R-216-13

WHEREAS, the Engineering Department has received a request from Domingo Navarro, for the release of a $500.00 cash road opening bond posted for the purpose of repaving an existing driveway at 5 Appio Dr., Randolph;

WHEREAS, the Road Opening Bond consisted of a $500.00 cash bond, which was received and deposited with the Finance Department on June 6, 2013 and;

WHEREAS, the Applicant was required to post this cash bond to guarantee the repaving of existing driveway at 5 Appio Dr. within the Township Right of way, and;

WHEREAS, the Engineering Department has inspected the road opening work, and found it to be acceptable.

NOW THEREFORE, BE IT RESOLVED by the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey that it is recommended by Raffaele Carchia, Engineering Administrator that the Cash Road Opening Bond in the amount of $500.00 be refunded to Domingo Navarro, 5 Appio Dr., Randolph, NJ 07869.

18. Resolution Approving Liquor License Renewals for the 2013/2014 Season

R-217-13

Liquor License Renewals for the 2013-2014 Season

BE IT RESOLVED by the Township Council of the Township of Randolph, Morris County, New Jersey, that the following applications for renewal of alcoholic beverage licenses for the respective premises hereinafter designated, for the 2013-2014 season commencing July 1, 2013 and ending June 30, 2014 be and the same are hereby granted. The fees being as hereinafter listed and the said applicants having complied with all requirements of the Statutes and Rules and Regulations of the Department of Alcoholic Beverage Control:

BE IT FURTHER RESOLVED that the Township Clerk be and is hereby ordered and directed to sign and issue said licenses in the name of the Township of Randolph and to deliver the same to the licensee when receipt is signed by the licensee or the authorized agent to the licensee.

19. Rescinding Award of MCCPC Contract from Aluminum Athletic Equipment and Re-Awarding Portion of Contract #20-B Sporting Goods to BSN

R-218-13

WHEREAS, on April 25, 2013, the Township of Randolph (“Township”) on behalf of the Morris County Cooperative Pricing Council (“MCCPC”) awarded Contract #20-B (Sporting Goods) to various vendors; and

WHEREAS, an award was made to Aluminum Athletic Equipment Company for Item #4 in Category B (Soccer Equipment) of Contract #20-B; and

WHEREAS, Aluminum Athletic Equipment Company is not willing to absorb the additional cost to increase their Workers’ Compensation Insurance to bring it into compliance with the requirements contained in the Bid Specifications; and

WHEREAS, BSN, the second low bidder for Item #4 in Category B (Soccer Equipment) of Contract #20-B (Sporting Goods), has agreed to hold their pricing for that item for the term of the contract; and

WHEREAS, it is in the best interests of the MCCPC to rescind the award of Item #4 in Category B (Soccer Equipment) of Contract #20-B (Sporting Goods) from Aluminum Athletic Equipment Company and re-award Item #4 to BSN.

NOW, THEREFORE, BE IT RESOLVED that the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, approve the rescission of Item #4 in Category B (Soccer Equipment) of Contract #20-B (Sporting Goods) from Aluminum Athletic Equipment Company and re-award Item #4 to BSN.

20. Authorizing Award of MCCPC Contract #38 to Communications Specialist and #48 to Storr Tractor

R-219-13

WHEREAS, the Township of Randolph (“Township”) on behalf of the Morris County Cooperative Pricing Council (“MCCPC”) sought bids for the following contracts:

#38—Preventive Maintenance/Repair of Communications Equipment (Radios)
#48—Equipment Parts for Turf Care

and

WHEREAS, bids have been advertised and were received on June 18, 2013, on behalf of the MCCPC in accordance with Local Public Contracts Law for the contracts noted above; and

WHEREAS, Communications Specialists was the lowest responsive and responsible bidder for Contract #38 (Preventive Maintenance/Repair of Communications Equipment); and

WHEREAS, Storr Tractor was the lowest responsive and responsible bidder for Items #1 and #2 and Power Place, Inc. was the lowest responsive and responsible bidder for Item #3 in Contract #48 (Equipment Parts for Turf Care); and

WHEREAS, the Township desires to award the contracts to the bidders in the amounts as set forth on the Notification of Award sheets which are attached as Exhibit A.

NOW, THEREFORE, BE IT RESOLVED that the Mayor and Council, Township of Randolph, County of Morris, State of New Jersey, hereby authorize the award of the contracts noted above.

21. Raffle License, Amusements, Kiwanis Club of Randolph at the County College of Morris, 214 Center Grove Road, Randolph, NJ for Freedom Festival on July 4 & 5: 5 p.m. - 11 p.m., July 6 & 7: 2 p.m. - 11 p.m.

I. UPCOMING EVENTS

1. Thursday, July 4—Freedom Festival 5 p.m. - 11 p.m. one price night
2. Friday, July 5—Freedom Festival 5 p.m. - 11 p.m. band night
3. Saturday, July 6—Parade at noon, Freedom Festival 2 p.m. - 11 p.m., Fireworks at 9:45 p.m. (Sunday raindate)

J. ORDINANCES: SECOND READING/PUBLIC HEARING

1. Ordinance #14-13: Capital Ordinance—$965,000 Funding Storm Water/Sewer/Water Improvements

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH PROVIDING FOR VARIOUS 2013 CAPITAL IMPROVEMENTS APPROPRIATING $965,000 FROM THE CAPITAL IMPROVEMENT FUND” be read by title on second reading and a hearing held thereon.

Manager Lovell explained that this is a cash ordinance, the cash is raised in the Capital Improvement Program this year and the Township isn’t bonding these projects. He reiterated what projects and purchases were included in the Capital Improvement Program.

OPEN TO THE PUBLIC

Seeing no one from the public, the public portion was closed.

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH PROVIDING FOR VARIOUS 2013 CAPITAL IMPROVEMENTS APPROPRIATING $965,000 FROM THE CAPITAL IMPROVEMENT FUND” be passed on final reading and that a Notice of Final Passage of said Ordinance be published in the official designated newspaper according to law.

Deputy Mayor Loveys stated that he hoped the Township would seriously market the rental of the sewer Jet Vac truck to other towns. Manager Lovell replied that a rate for the operator and the truck will be established and it will be made available to neighboring towns.

Councilman Guadagno made a motion to support the adoption of the ordinance. Councilwoman Veech seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

2. Ordinance #15-13: Capital Ordinance—$651,200 Funding Various Improvements and Equipment Purchases

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH PROVIDING FOR VARIOUS 2013 CAPITAL IMPROVEMENTS APPROPRIATING $651,200, THEREFORE, INCLUDING $119,000 FROM THE CAPITAL IMPROVEMENT FUND; $230,500 FROM THE RECREATION DEVELOPMENT AND REDEVELOPMENT TRUST FUND; $271,700 FROM CAPITAL FUND BALANCE AND $30,000 DUE FROM THE RANDOLPH TOWNSHIP BOARD OF EDUCATION” be read by title on second reading and a hearing held thereon.

Manager Lovell explained that this is a second cash ordinance, no debt is associated with it, and it will be utilized to undertake improvements and to purchase equipment in Randolph Township. The funding for the Maintenance Facility oil dispense system and the controls for the entrance and exit gates projects will be shared with the Board of Education. He reiterated what projects and purchases were included in this ordinance.

OPEN TO THE PUBLIC

Seeing no one from the public, the public portion was closed.

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH PROVIDING FOR VARIOUS 2013 CAPITAL IMPROVEMENTS APPROPRIATING $651,200, THEREFORE, INCLUDING $119,000 FROM THE CAPITAL IMPROVEMENT FUND; $230,500 FROM THE RECREATION DEVELOPMENT AND REDEVELOPMENT TRUST FUND; $271,700 FROM CAPITAL FUND BALANCE AND $30,000 DUE FROM THE RANDOLPH TOWNSHIP BOARD OF EDUCATION” be passed on final reading and that a Notice of Final Passage of said Ordinance be published in the official designated newspaper according to law.

Councilman Napoliello made a motion to support the adoption of the ordinance. Councilman Guadagno seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

3. Ordinance #16-13: Bond Ordinance—$200,000 Funding Renovation of Seeing Eye Animal Shelter

BE IT RESOLVED that an Ordinance entitled “BOND ORDINANCE PROVIDING FOR IMPROVEMENTS TO THE SEEING EYE ANIMAL SHELTER IN AND BY THE TOWNSHIP OF RANDOLPH, NEW JERSEY, APPROPRIATING $200,000 THEREFORE AND AUTHORIZING THE ISSUANCE OF $180,000 BONDS OR NOTES OF THE TOWNSHIP TO FINANCE PART OF THE COST THEREOF” be read by title on second reading and a hearing held thereon.

Manager Lovell explained that the Township is working to establish the Seeing Eye shelter in Mendham as the Randolph Township Animal Control facility. This funding will allow for renovation of the buildings. The animal control facility will serve Randolph and the other towns for which we provide animal control services.

OPEN TO THE PUBLIC

Judith Stewart of 114 Everdale Road stated that she was pleased that this was coming to pass.

Seeing no one further from the public, the public portion was closed.

BE IT RESOLVED that an Ordinance entitled “BOND ORDINANCE PROVIDING FOR IMPROVEMENTS TO THE SEEING EYE ANIMAL SHELTER IN AND BY THE TOWNSHIP OF RANDOLPH, NEW JERSEY, APPROPRIATING $200,000 THEREFORE AND AUTHORIZING THE ISSUANCE OF $180,000 BONDS OR NOTES OF THE TOWNSHIP TO FINANCE PART OF THE COST THEREOF” be passed on final reading and that a Notice of Final Passage of said Ordinance be published in the official designated newspaper according to law.

Deputy Mayor Loveys recognized former Councilman Obremski for working tirelessly to see this through.

Councilman Guadagno made a motion to support the adoption of the ordinance. Councilwoman Veech seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

4. Ordinance #17-13: Amend Bond Ordinance #5-07 to Modify Project Description—Police Department Renovations and Improvements—$80,000

BE IT RESOLVED that an Ordinance entitled “BOND ORDINANCE OF THE TOWNSHIP OF RANDOLPH, NEW JERSEY AMENDING THE DESCRIPTION OF THE IMPROVEMENT REFERRED TO IN SECTION 3(d) OF BOND ORDINANCE NO. 15-07 FINALLY ADOPTED JUNE 7, 2007” be read by title on second reading and a hearing held thereon.

Manager Lovell explained that this amendment deals with an ordinance that was adopted in 2007 regarding a number of improvements to the township including some to the Police Department. At that time, the network data center fire suppression system came in at a lot less than anticipated, and the dollars have been sitting in this ordinance for a number of years. This amendment would redirect those dollars towards improvements to the Police Department that would cumulatively come to about $80,000.

OPEN TO THE PUBLIC

Judith Stewart of 114 Everdale Road stated that she supported this ordinance.

Seeing no one further from the public, the public portion was closed.

BE IT RESOLVED that an Ordinance entitled “BOND ORDINANCE OF THE TOWNSHIP OF RANDOLPH, NEW JERSEY AMENDING THE DESCRIPTION OF THE IMPROVEMENT REFERRED TO IN SECTION 3(d) OF BOND ORDINANCE NO. 15-07 FINALLY ADOPTED JUNE 7, 2007” be passed on final reading and that a Notice of Final Passage of said Ordinance be published in the official designated newspaper according to law.

Councilman Guadagno made a motion to support the adoption of the ordinance. Councilwoman Veech seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

5. Ordinance #18-13: Accepting the Dedication of Block 49, Lots 2 & 3—Located within the Township of Randolph for Municipal Public Purposes

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH ACCEPTING THE DEDICATION OF BLOCK 49, LOTS 2 AND 3 LOCATED WITHIN THE TOWNSHIP OF RANDOLPH FOR MUNICIPAL PUBLIC PURPOSES” be read by title on second reading and a hearing held thereon.

Manager Lovell explained that the ordinance allows the Township to close on this nearly 90 acres of property. The land will be entered in the Recreation Open Space Inventory with the State of New Jersey, and allows the Township to obtain the Seeing Eye property. The Manager reported that he has an application pending with DEP to develop a trail connecting Heistein Park through that property, up to Calais Rd.

OPEN TO THE PUBLIC

Seeing no one from the public, the public portion was closed.

BE IT RESOLVED that an Ordinance entitled “AN ORDINANCE OF THE TOWNSHIP OF RANDOLPH ACCEPTING THE DEDICATION OF BLOCK 49, LOTS 2 AND 3 LOCATED WITHIN THE TOWNSHIP OF RANDOLPH FOR MUNICIPAL PUBLIC PURPOSES” be passed on final reading and that a Notice of Final Passage of said Ordinance be published in the official designated newspaper according to law.

Mayor MacArthur acknowledged that there have been numerous Council members involved over the many years of discussions and negotiations. The Mayor again stated that the language will need to include that the specific use of this conveyed property is for recreational use including a public pool.

Councilman Napoliello made a motion to support the adoption of the ordinance. Councilman Guadagno seconded the motion and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

NAYS: None

K. SPECIAL HEARING

1. MCCPC Contract #15-C Utility Vehicle Contract Award (Appeal)

Mayor MacArthur made the following comments:

• This is a hearing on a MCCPC dispute between Mid-Atlantic and Brown’s.
• The first hearing was on April 25th and it was concluded that Mid-Atlantic’s bid did not comply with the bid specs. Mid-Atlantic originally got the bid, then it was challenged by Brown’s, then it was appealed, the Council considered the appeal and concluded that Mid-Atlantic’s bid did not comply. On April 25th the contract was awarded to Brown’s.
• Mid-Atlantic has now asserted that Brown’s bid does not comply. The Council is to now determine if Brown’s bid complied with the bid specs.
• The process and the criteria that to be used are exactly the same as what was used on April 25th. Each party has agreed in advance to take 20 minutes of uninterrupted time to make their case. Since Mid-Atlantic made the appeal, they will go first, and then Brown’s can respond. When both parties have finished, Council will be free to ask anything they’d like. The Council can discuss it and review it. The Council is under order to come to a decision at this meeting.

Attorney Gerald Salerno representing Mid-Atlantic made the following comments:

• On April 25th the Council made a determination that Mid-Atlantic’s bid did not comply based upon two items, one having to do with tires, and one having to do with the deficiency of 10 amps in the alternator.
• Brown’s argued last time that there can be no deviations, no exceptions, and no material deficiencies, and that one cannot simply say & rely upon the fact that they didn’t take exception and not include something in the bids.
• He feels it is much simpler, he feels it gets down to any one material deficiency results in a rejection of a bid. He feels the Council must conclude that there is material deficiency in Brown’s bid based on 2 or 3 items.

The engine block heater:

• The bid spec calls for a 1,500 watt block heater. A 1,250 watt block heater was supplied. There’s no denial, there’s simply an email attached from someone indicating that they don’t, that’s the maximum that was released. What does that mean? Does that mean that there are no 1,500 watt block heaters? There was no exception taken, it doesn’t comply, 1,500 was the requirement, 1,250 was what was bid. They appear to be insignificant, but as the Council may recall, we did determine that a deficiency of 10 amps in the alternator was a material non-conformant.

The air cooler for engine intake filter:

• I think this is the one that is clearest and can be most concisely expressed to you. The specifications for item 14 on page 36, the engine and equipment requiring inside/outside air cooler for engine intake filter with a dash mounted switch. This allows the door to open to allow warm air under the hood and supply the engine while plowing, and closes off the exterior inlet and prevents snow from clogging up the engine. What Brown’s provided on page 5 of their proposal is an air cleaner with a single element. After having received Brown’s response which indicates that they did bid it in fact, my client has provided me with an International CT400 manual which shows the options available. I will pass it around to you, and it clearly shows that the single air cleaner that was bid by Brown’s is the standard. The optional upgrade, which is listed here, is the air cleaner single element with integral snow dampener and in-cab control is what was required under the bid. My client is here, he is prepared to testify under oath that that is an upgrade, and it costs $157 that was not included within the bid. He can explain it a lot better than by photographs so that you all understand what exactly we’re talking about.

William Hanley, the General Sales Manager at Mid-Atlantic Truck Center, explained the photographs:

This shows what the option is, it gives an in-cab control. There is no in-cab control in the standard option because it only does one thing, it sucks air from the outside through the air filter. By having this, the driver hits the engine intake winter valve, which closes off. Right here is the air cleaner with the hood open showing the air cleaner being closed off. Then here, this is the inside of this air cleaner here showing the inside open where the air would be sucked in during plowing and everything else. This is a safety issue because at times during plowing, the air cleaner from the outside can be clogged. Without this option, the engine could lose power, it could start to stall a little bit. The safety part of it is, during a snow storm if that starts happening, the driver has to pull over, he has to get outside on the truck and try to clear that. Clearly this was an option that was asked for in the specifications, this is what it gives.

Mr. Hanley stated that the cost is $157 but it’s an option that was asked for. He had looked at a copy of Brown’s bid dated October 10th that was submitted, which was supplied through his attorney from the Morris County Co-Op, and it’s not there.

Mr. Salerno continued:

The power take-off crank shaft driven damper:

• The specifications under item 14 on page 36, under engine equipment, required a take off crank shaft driven damper. This is a requirement for running the central hydraulic system; this was not provided by Brown’s in their bid. Their response was its inconsistent; again, my understanding is that it’s an option, an upgrade option that costs $353. So again, we have a material deviation from another clear specification. The attempt to justify it by arguing that it’s inconsistent, we had this discussion last time as I recall, and it’s clearly not up to the bidder to deviate from the specifications particularly when something is called for or particularly when something is an option to upgrade.

The front tow hooks:

• The last time around Mid-Atlantic was being chastised for not including rear tow hooks. The argument that was provided in the bid proposal because there was no deviation or no deviation from the specifications, well I would submit to you that last time around we heard that if it’s not included, it’s a material defect.

Mr. Salerno concluded:

• We had a lengthy discussion last time about the body specifications and what is called for and those are listed in items 6, 7 & 8 of the protest that we’ve submitted. The bottom line to all of this is, there is a great deal of attempts to justify what was provided as being either as good as or equal to or superior to, but what was provided clearly does not comply with the specifications that were asked for. And again, having previously ruled and previously considered the matter, I’m confident that you’re all aware of what is required in terms of material deficiency. I would submit to you that, without even getting to number 6, 7 & 8, clearly items 3 & 4 constitute material deficiencies that resulted in a difference in price which again, is a factor that has to be looked at that clearly places another bidder at a disadvantage.

Attorney Keith McDonald, representing Brown’s Hunterdon International, made the following comments:

• He wanted to point out a few preliminary matters he felt were important in analyzing what is presented by Mid-Atlantic. Following the last hearing it was his understanding, that at Miss Cofoni’s direction, she asked the DPW Director to review Brown’s bid for conformity. The decision was made that it did conform to the bid specifications. It was not an automatic, “you’re next then you win the bid,” it was a process and Brown’s bid was reviewed.
• On May 15th, the Council adopted a resolution awarding that contract to Brown’s. Now Mid-Atlantic has come back and said that things were pointed out in their bid that the Council said was material defects and did not conform, and that they believe these things are material defects in Brown’s bid.
• One of the key differences between what Mid-Atlantic is alleging now and what Brown’s alleged then is that Mid-Atlantic is not arguing the materiality two prong test, they’re arguing the first prong. Mid-Atlantic is saying that Brown’s did not propose exactly what was wanted, so that is material. Mr. McDonald said it is not since there were talk about the second prong of materiality which states, “whether it is of such a nature that its waiver would adversely affect competitive bidding by placing the bidder in the position of advantage over other bidders.” He explained that there is an “and” between the first & second prong. Not only did you have to show that you deprived the municipality of its assurance that it was getting what it asked for, but it would also have be of such a nature that it adversely affected the competitive bidding process. Mr. McDonald asked the Council to think about both prongs while listening to the arguments, and whether they’re applicable to what Mid-Atlantic is identifying now. He stated that if it doesn’t meet those two requirements, but you would still find that maybe it wasn’t drafted as well as it should’ve been, that could be deemed to be immaterial which is what we defined in the papers when the judge quoted “non material conditions are ones that are often incorporated in the bidding specifications which by their nature may be relinquished without there being any possible violation of the policies underlying competitive bidding.”
• In order to find a material defect, you need to find both prong A & prong B.

The engine block:

• They say “hey we got knocked out for a 10 amp reduction in an alternator so you should get knocked out for a 250 watt reduction in the block heater,” that is their argument. But what they don’t tell you is that in their bid and in the other International bid that was part of this bid, they also bid a 1,250. And the reason why everyone bid the 1,250 watt block heater, because if you look at exhibit A to my submission, because that’s the only block heater that goes with the engine that was asked for in the bid. So it’s the only possibility, unlike the alternator last time, where there was the option to get the 150, it called for a 130, they selected a 120 as opposed to the 150. That option doesn’t exist here, so I would ask you to focus on materiality, whether there was a competitive advantage for Brown’s bidding a 1,250, and the answer to that is no, because their bid had a 1,250. And the sister company of Mid-Atlantic who is the 4th highest bid here, who is owned by the same people that own Mid-Atlantic, another International dealer, they bid 1,250 too. So everybody bid the 1,250. So the question is, is that material and the answer is no, there’s no competitive advantage to Brown’s.

The back up alarm:

• The back up alarm is plainly in the bid documents by Brown’s. Mr. Sanchez is with the body company. He bid everything to spec including OSHA approved back up alarm, so what they put there is not correct.

Air cleaning system:

• The other piece that Mid-Atlantic has focused on and brought up additional materials which Mr. McDonald said he hadn’t seen before and weren’t attached to the papers is, they argue that the air door that Brown’s put in the specifications, was not the air door that was called for in the spec. Well the air cleaning system that Brown’s put in there was the exact system that was called for under the spec. They’re saying “no, you didn’t have certain options,” but Brown’s put in the air cleaning system and they met the spec, there’s no exception to the bid, so there’s nothing that has been presented to anybody to show that what Brown’s did is a material defect.

Crank shaft driven damper:

• The bid called for a constant mesh PTO, it’s a power take off element of the truck that’s attached to the transmission. There’s an alternate type of PTO that you can have which is a front end PTO. The bid was inconsistent, so it asked for a constant mesh PTO which was attached to the transmission, but then it also asked for a damper which is only used with a different type of PTO that wasn’t part of the bid. And it was our understanding, and what we presumed happened was, that this was carried in from an old bid, the damper, and not dropped off because the damper has nothing to do with the constant mesh PTO which was the one called for in the bid. And again, I would note that Mid-Atlantic did the exact same thing, they bid the constant mesh PTO, and they did not bid the front end PTO. Mid-Atlantic didn’t include the damper, they did exactly what Brown’s did because that’s what made sense to all the professionals when they read this, they realized it was a mistake. But even if that were the case, if an MCCPC member came to Brown’s and said “you know what, we want that other PTO even though it wasn’t in the bid spec,” the way the truck is spec’d out, there is room for this hydraulic pump to go in if they wanted the other PTO. But that’s not what the bid called for, but it is an option that they can do.

Front tow hooks:

• We spoke about the front tow hooks, I argued last time that was material, and everyone here decided that it wasn’t material. But in fact that has nothing to do with this because Mr. Sanchez, in his spec from the body company, when installing the front plow, the hooks are on the plow. The hooks are part of the plow, so that’s why they’re not listed separately because that’s part of the plow hitch that’s there.

Mr. McDonald concluded:

• In Number 6 Mid-Atlantic identifies our material as Domax, and state that Domax is inferior in terms of tensile strength; however, they attached a chart (Exhibit A) which indicates Domax is 91 ksi tensile strength. The specs from Domax that are attached to Brown’s papers show that the tensile strength is actually 110, which is 30,000 psi higher than the Corten that was called for & therefore, Brown’s exceeded what was asked for. As Ms. Cofoni explained last time, exceeding is okay, the bid just can’t be deficient.
• Mid-Atlantic claims that Hardox 400 is not the same as AR400, but there is no proof, Mr. Salerno hasn’t argued to say these are deficient materials.
• It comes down to the first few items. Mr. McDonald submitted that there is nothing material, nothing that changed the competitive bidding process that would then render Brown’s bid to be deficient.

Mr. Salerno made the following comments:

• Having presented the information that was presented to you this evening with respect to the air filter and looking at the spec, it’s clear to me that Brown’s has not complied. It requires an interior, dash mounted switch, and they haven’t provided that. Mr. McDonald has clearly indicated to you the purpose of that switch, and we’ve shown you in the specifications provided by the manufacturer, the two different options. We’ve shown you the standard that was provided by Brown’s which are clearly inferior. We’ve shown you the optional upgrade which is clearly what the specs call for, for the very reason that my client has indicated, it’s a safety feature. It’s a feature to make sure that if the driver encounters difficulty because the snow clogs the engine when he’s plowing, he’s capable of utilizing the switch inside instead of having to pull the truck over and stick his hand in the thing and clear it out. I think it’s clear and it’s unequivocal, it’s an upgrade, it’s an option that costs more money. We know and we learned last week that a resulting cost savings is a factor, and it is something that we’ve already considered, and my client complied with that specification. So it did place them at a disadvantage.
• To argue that some of the other things were bid by the other people and say its ok, we don’t have to comply with the specs because the other people didn’t comply with the specs isn’t what the law requires. The law requires that the bidder complies with the standards and requires them that the deviations can’t be material. Mr. Salerno submitted that the air door in and of itself is in fact material.
• The power take-off crank shaft driven damper, again, that’s a $353 option to upgrade. A resulting cost savings by not bidding it, the type of thing that the law has defined as a material deficiency.
• As far as the content of the material that we’ve talked about in items 6, 7 & 8 with respect to the body, what was provided is not what was asked for. The Corten is what was requested in the specifications, Domax was provided. It’s not up to the Council to get into a debate and try to make a determination now about who says what, which one is better, which one is stronger, clearly they call for Corten, there’s a reason Corten was called for. To simply say that Domex may or may not be better, I would submit to you is not sufficient to actually enable you to reach the conclusion that the bid complies.
• The air door and the power take crank shaft, both are significant, both are material, both have clearly resulted in cost savings to the bidder, and based upon the law, and based upon the prior application Mid-Atlantic made in this case, it’s clear that those are particular material deficiencies that in fact should result in the bid being rejected. Who the next bidder was really not material for your determination, whether it is us, or somebody else, or some affiliated company. The Council is being asked tonight to look at the bid as presented and determine if in fact it complies with the specifications and if not, if the deficiencies are material. And I submit to you that the conditions that have been focused on and highlighted clearly are material.

Mr. McDonald made the following comments:

• He felt it was important to talk to people who have knowledge on how the bid specification was drafted with respect to the crank shaft driven damper. It is his understanding that in the industry you don’t have a crank shaft driven damper when you have a constant mesh PTO, therefore, it is a mistake in the bid which would not be a material defect. To put it in the bid, to put it on the truck would make no sense, there would actually be a piece that would just be sitting there with no purpose. Because the PTO, that driven damper is the hook to, it’s a front end PTO which is not the PTO that’s part of this truck. So I would just put that to your attention, maybe we want to have a discussion with Mr. Spring.
• With respect to the air door, Brown’s supplied the single element air door that they believe was asked for in the bid. They provided that in the trucks, they met the spec. The fact that Mid-Atlantic states that more detailed information has to be included doesn’t mean that we didn’t meet the air door that was requested. They asked for an air door & we said we’re going to give you an air door. Brown’s put the air door there and expected that the members would expect that the air door in the spec would be provided.

Tiena Cofoni made the following legal clarifications for the Council:

• For a non conformity in a bid to be found material, it does not have to meet both prongs of that test. I understand they talk about it in “and,” but that does not mean that you can say “yes, this non conformity provided an advantage to this bidder over other bidders” and if you remember, the second prong is “but it didn’t inhibit our ability to determine that the contract would be performed in accordance to the specifications” so that doesn’t mean that it’s not material. Either one of those makes it not-immaterial or likewise, material. So it’s not that you have to meet both, it’s either one, so if it satisfies either one.
• When it comes to determining the one part of the prong, and that is, whether it’s an advantage to the other bidders, it’s not whether it’s an advantage to people who actually bid, it’s whether it’s a potential advantage to potential bidders. So by deviating from something, did they have an advantage over someone else who maybe looked at it and decided not to bid because they couldn’t do that or they knew they couldn’t do that & be competitive or for whatever reason. So it’s not actual bidders that you’re comparing it to, you’re comparing it to potential bidders.

Mayor MacArthur asked Ms. Cofoni to further clarify the two prongs.

Tiena Cofoni stated that the two prongs are that it provided an advantage to one bidder over other bidders, and that it inhibited the municipality’s ability to be assured that the contract would be performed in accordance with specifications. If the answer to either one of those is yes, it’s a material defect. Ms. Cofoni stated that you don’t have to say yes to both in order to find it’s a material defect.

Mr. McDonald stated for the record that at the last hearing Councilman Hirniak pointed out the reason why it is a two prong test and both are required and that was because the word “and” is used and not the word “or.” Mr. McDonald respectfully disagreed with Ms. Cofoni’s understanding of the law. He said that if the minutes from the last hearing were reviewed, he believed the Council used the two prong test. He stated that when it is two pronged, it has to satisfy both prongs. Mr. McDonald also respectfully disagreed with Ms. Cofoni on the point of competitive bidding. He stated that the language from Meadowbrook, which is the case which has set forth this test, doesn’t say it has to give a competitive bidding advantage over people that didn’t bid. The language specifically says “whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.” Mr. McDonald stated that it doesn’t say people who didn’t bid, the language says competitive bidding, placing a bidder in a position of advantage over other bidders. He said that the interpretation can be disagreed upon, but at the last hearing it was looked upon as a two pronged test which means both parts had to be met, prong one and prong two because of the word “and.” Mr. McDonald stated that that is in dispute, and that some sort of legal decision from the court may need to be sought as he felt that may be important in the Council’s decision.

Mr. Salerno stated that he respectfully disagreed with Mr. McDonald, that is the reason Counsel is present, to give her opinion on what the law is and what the requirements are. For Mr. McDonald to stand up and say that you have to seek the court’s intervention is not how it works. Mr. Salerno stated his understanding is that there is Counsel who has set forth her opinion of the test, and that he doesn’t recall the test being annunciated at the last hearing the way Counsel presented it this evening. Mr. Salerno also disagreed with Mr. McDonald regarding the aspect of placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition or by unnecessarily undermining the common standard of competition. He submitted that as Ms. Cofoni has pointed out, is not just talking about these specific bidders in this case, but in the entire process of bidding and of competition. Mr. Salerno stated that clearly in this case, a particular bidder is not providing something and is achieving a savings as a result of that. That is undermining the common standard of competition.

Mayor MacArthur asked for Council questions.

Councilwoman Veech asked for Tom Spring, Director of Public Works, to give his views on the bid regarding the 1,250 vs. the 1,500, the $157 part and the damper that wasn’t provided, whether these things are material or not.

Tom Spring stated that they found that there were two flaws in the specifications:

• The constant mesh PTO was what was wanted, but the front damper was mistakenly left in the specs. Three public works directors put together the specifications by modifying an old spec and missed that. If the front damper was supplied, then there would be two PTOs on the truck, one off the transmission and one off the crank shaft.
• The 1,500 watt block heater was also left in when modifying the old specifications. What they found was that the MF 9 engine only comes with a 1,250 watt block heater. Mr. Spring stated that the 3 directors didn’t know that & that he isn’t an expert on International engines, Cummings engines, and that they tried to put together a generic spec so there would be competitive bidding.

Tom Spring stated that he didn’t see the difference in the way it was written for the air door damper. They requested an air damper for the snow, whether it was being provided by Brown’s or not, he didn’t see where it says it is or isn’t. Mr. Spring said that they used the terminology “single door” so he doesn’t know if they’re supplying it or not.

Mayor MacArthur asked if Mr. Spring saw the exhibit of the chart being passed around.

Tom Spring said he hadn’t, but in the other vehicles there is a switch on the dash, you hit the switch, it closes the door, snow doesn’t get in there & clog up the air filter. It is a very simple operation.

Mayor MacArthur asked if that is what the Brown’s bid supplied or if that is what the spec called for.

Tom Spring stated that is what the spec called for, the debate is whether Brown’s was supplying that, and from what he read, it doesn’t say that they’re not. It says it’s a single door. Mr. Spring said he is not defending them or saying they’re not supplying it, but that he doesn’t have enough evidence saying that they’re not supplying it.

Mayor MacArthur suggested that Tom Spring take a few minutes to read it and come back with his opinion. The Mayor felt that the Council needed to understand Mr. Spring’s opinion on whether, as Counsel for Mid-Atlantic asserted, what is described there is an option over and above what was asked for.

Councilwoman Veech asked Tom Spring if for $157 that is a material issue.

Tom Spring stated that he believes it is material because it provides a function.

Mayor MacArthur stated that he didn’t think the Council’s job was to decide materiality in terms of relative importance. He believed the Council’s job with materiality was technical violations versus something that was non compliant with the specs.

Tiena Cofoni clarified that to determine materiality are those two prongs. She submitted that in determining importance of the part, would perhaps go to the township’s ability to determine whether or not the contract would be performed in accordance with the specs. Ms. Cofoni stated that she is not saying whether or not Brown’s is providing it. However, if Tom Spring says it is an important function of the truck and Brown’s was not providing it, then perhaps not providing it would inhibit your ability to determine whether or not the contract would be performed in accordance with the specs. She thought that played into it a little bit.

Mr. McDonald recommended that they look at what the court said in their language because they did talk about what is immaterial. He read, “While non compliance with the material conditions of the bid may not be waived, minor or inconsequential discrepancies and technical omissions can be the subject of a waiver.” Mr. McDonald stated that he thought that was a little different than what the Mayor was saying, that the Council has some discretion to make that decision.

Tiena Cofoni agreed.

Mayor MacArthur asked if the actual order from the judge from the last hearing was available.

Councilman Hirniak stated that it isn’t in the judge’s order, it’s in the standard of review, and that both attorneys presented that.

Mayor MacArthur stated that both attorneys were quoting pieces of the order, but the actual order went further than that last time.

Councilman Hirniak said that one of the people that the Council heard from last time which helped him in reconciling his decision was the Township Manager. Councilman Hirniak asked if the Council could hear from him as well.

Mayor MacArthur stated that in terms of information, but not in terms of conclusions just yet.

Manager Lovell made the following comments:

• He would not make a conclusion, but after reading the arguments for both sides, re-reading the specifications, and listening to Tom Spring & Tiena Cofoni, he made some determinations.
• The top of the spec says “our minimum specifications which must be met or exceeded.” Every bidder got that when they began the process and decided they wanted to participate in the process.
• How should a vendor resolve a question on a bid specification? The Manager supposed that the parties saw the 1,500 watt block heater and realized it wasn’t compatible with a 300 horsepower minimum standard International engine. How to resolve a question is spelled out in 2 places. In the bid specification it says “every request for interpretation shall be in writing, addressed to the Purchasing Agent, and must be received no later than 4:30 p.m. prevailing time in advance.” And then it says “no changes, alterations, additions or reductions from the scope of work and/or materials that’s outlined herein shall be made without the written consent of the MCCPC.” Manager Lovell thought that was ignored by the bidders.
• The local public contracts law is the document that Tiena works from, and she is an expert on that document. That document says, “any prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the contracting agent no less than 3 business days prior to the opening of the bid. Challenges filed after that time shall be considered void and having no impact on the contracting unit or the award of the contract.” It sounds like both sides knew there were some problems with the bid specifications when they were preparing to bid on this project or this vehicle. And there was a way to resolve these issues in advance and clean up some of these issues and not end up where we are today.
• On April 25th he accepted Mid-Atlantic’s position that where their billed sheet was sound on a specification issue, they would fully comply. He thought that was a reasonable argument, and accepted that argument at that time and also accepts that argument tonight. So if it’s unclear or spelled out as some sort of exception to the specification, if silent on an issue, than he is going to accept the fact that they’re going to deliver what the specification calls for. In his opinion, that deals with 2 issues, the back up alarm and a front tow hook. He felt confident that the proper back up alarm and a front tow hook would be supplied.
• With regard to number 4, as you heard from Mr. Spring that we have a specification that was an older specification upgraded. We wanted a constant mesh PTO, that’s what we hoped to get through all this process, we thought we would find the reference to the crank shaft PTO was erroneous, it should’ve been taken out. That was the system we used years ago on trucks, it is no longer the desired system of choice for operating power take off system. Manager Lovell accepts the fact that that’s what was bid on.
• With regard to numbers 6, 7 & 8, Brown’s adequately established in their arguments and what they provided to us, that they meet or exceed the specification, whether or not it’s the exact same product, that isn’t the issue. The issue is meet or exceed the specification, we completely established that based upon the rating of the steel that was being offered.
• That leaves us with point number 1, the engine block heater and point number 3, the air cooler, which he really struggled with. The specification called for 1,500 watt block heater. The specification was really drawn around International Navastar truck, and they specified out minimum engine size that bidders could use in determining the engine they would bid for this project. They also made it a 1,250 watt block heater, I don’t think anybody disputes that, everybody bid that block heater because that goes with the size engine specified. The Manager went online to see if there are other block heaters out there, yeah, there are other block heaters, but they’re designed differently. The International Navastar block heater, 1,500 block looks completely different than the one that’s integrated at 1,250. But that doesn’t mean there weren’t other options available out there which might’ve meant an upgrade of the engine size to provide us with the block heater we were looking for. These are minimum specifications, nothing precludes you from providing more than we’re asking for. We say 300 horsepower, nothing precludes you from going to 400 horsepower. We say 6 liter, nothing precludes you from going to a 7 liter engine. Nothing precluded them from bidding something other than the International Navastar, they could’ve provided us with Detroit Diesel, they could’ve provided us with Catepillar or Cummings or one of the other competing diesel engines that would accommodate this size body. And there may have been bidders out there that said they can’t bid competitively with this larger engine and therefore they decided not to get in this process. They didn’t want to compete because they knew they were going to come in at the bigger range in order to meet this specification. The Manager felt that was significant and from his perspective, that defect possibly undermined the competition. He thought it provided an advantage to the bidders who decided to bid in this process providing the lesser block. He thought that was material non-waivable.
• With regard to the air door, at first he was convinced in one direction, then convinced in another direction, but then sort of in-between. He based that upon the response received in Brown’s protest, that they will meet the specification. So if a truck is delivered to us that doesn’t have the proper switch and the proper air door, we’re going to send it back to you and we’re not going to pay that bill. From his perspective, it’s a real tough call. And again in the response they said they would meet the specifications, no exceptions or substitutions.

Councilman Guadagno asked if any company put in a 1,500 block heater.

Manager Lovell stated that none did, they all bid International Navastar truck and they all bid the same engine that met that specification.

Councilman Guadagno stated that he felt there wasn’t reasonable evidence to support the Manager’s argument.

Manager Lovell replied that there is if one looks at it from the perspective that there are other diesel engines on the market, they could’ve upgraded the engine. He felt that potential bidders didn’t bid because of it.

Mayor MacArthur asked if the block heater follows the engine, if it’s secondary to the engine and not vice versa. He felt that bidders wouldn’t decide to put a bigger engine in because a bigger block heater was in the spec. The Mayor thought that bidders would conclude that the specification was a mistake. He agreed with Manager Lovell that they should have called to clarify.

Mayor MacArthur asked Tom Spring if he had come to any more conclusions about the air door that Councilwoman Veech had asked about.

Tom Spring stated that the only thing he saw in the bid submitted by Brown’s back on October 10th, is that it says an air cleaner single element, it doesn’t talk about the door at all. It says the air cleaner, the actual filter is a single element filter, it doesn’t say anything about the door. So there is nothing in the bid that would say they were supplying the air door.

Tiena Cofoni asked Mr. Spring to repeat what he said.

Tom Spring again said that the only thing he could find in their bid proposal from October 10th was “air cleaner single element.” He could not find anything in the bid that said it has the air door with the dash mounted switch.

Mayor MacArthur asked if Mr. Spring would normally expect to see that detail.

Tom Spring again stated that the bid says “air cleaner single element,” that’s saying the actual filter is a single element filter, it’s in the air cleaner. He said that that is all it says, it has nothing to do with the request of having an air door with a dash mounted switch. Mr. Spring said he doesn’t see anything in the bid that states it.

Mayor MacArthur asked if exceptions aren’t taken, is it expected that they say affirmatively that every item is going to be compliant specifically or if they take no exceptions do you assume that they’re going to install with a switch as requested.

Tom Spring said that he personally thought that they should take exceptions so he would know what he expected would not be identical to what was asked for. But it was understood that if it’s not listed, then we’re expecting to get.

Mayor MacArthur asked if Mr. Spring saw that as an exception or just as they didn’t provide all the detail and that you assume that the switch is going in as well.

Tom Spring stated that he would assume the switch is going in, and he would reject the truck if it came without it.

Councilman Hirniak stated that the request for relief from Mid-Atlantic in the Conclusion section on page 7, asks the Council to find that the bid submitted by Brown’s fails to comply with the required specs, essentially rejecting Brown’s bid.

Tiena Cofoni replied yes.

Councilman Hirniak asked Tiena Cofoni if the Council is limited to that form of relief or if they sit as akin to a court of equity and by that, are they able to fashion their own relief that may incorporate this, but also some additional things in relation to that.

Tiena Cofoni stated that she was not following exactly what additional things Councilman Hirniak would be talking about and asked for an example.

Councilman Hirniak suggested the relief as bringing everything back to square one

Mayor MacArthur asked if Councilman Hirniak meant rebidding.

Councilman Hirniak said yes, but wanted to be sure that was a possibility before he explained his thinking.

Tiena Cofoni asked for a minute to give it some thought. She stated that her initial reaction was no because there is one more bidder, and that the determination would be limited to whether or not Brown’s complies. And then there would have to be a separate determination with regard to the last bidder, to say nothing of the fact that the bid specs only require that last 4th bidder to hold their bid for 60 days. So they’re not even required to hold their price at this point, it’s too far past that. Ms. Cofoni advised the Council to limit their determination to whether or not Brown’s complies.

Councilman Hirniak questioned that there was still another bidder in play, he had thought that that bid had been rejected.

Tiena Cofoni stated that was number 2. Mid-Atlantic was the lowest, number 2 was Hoover, they were rejected for other reasons that aren’t involved in this any longer, Brown’s was number 3, and she believed Deluxe International was number 4. Ms. Cofoni thought it needed to be taken one step at a time in that the Council’s determination would be finding Brown’s either complies or doesn’t comply. Where that goes from there will have to be seen.

Councilman Hirniak stated that he thought the most equitable thing to do was to start from scratch since the specifications provided to all the participants was faulty from the start, making it an improper process. He explained:

• Director Spring said it the best, he said that in 3 particular places this bid is faulty.
• To Mr. McDonald’s credit, he mentioned the inconsistency in the bid specifications concerning the power take off crank shaft, driven damper.
• At the last hearing on April 25th we heard about engine brake vs. exhaust brake, what means engine brake, what means exhaust brake.
• He thought the bid specifications were faulty, that they were so confusing, so improperly drafted, so horribly inconsistent, that by virtue of that, it put every bidder in a position of disadvantage because they had to substitute their own decision for what the specifications called for.
• The Mayor pointed out that the bid specifications called for a 1,500 watt block heater, and you can’t do that with that type of engine. Forcing bidders to substitute their own judgement for what was called for in the bid specifications, and as Manager Lovell mentioned, potentially having other bidders not bid because they can’t meet the specifications. Councilman Hirniak stated that as the body that vets the bidding process, he couldn’t imagine that that was what was being encouraged, to say that it’s okay that other bidders may have been confused and therefore did not submit bids. He felt that does not foster competitive bidding.

Tiena Cofoni explained that if this had all come before bids were received, she would agree and cancel the bid opening, redo the specs, and go back out to bid. If these inconsistencies were brought to someone’s attention, absolutely Councilman Hirniak’s way of going about it would have been the way to do it. Perhaps even after receiving the bids, if this had been brought to someone’s attention and before the contract was awarded, it probably could’ve been done then. Ms. Cofoni said that what she was struggling with, and what she’d have to give some thought to, is whether or not at this stage in the process that kind of a determination can be made. The Council has already gone through the process of making a determination with regard to Mid-Atlantic’s bid. There’s now been an assertion that Brown’s bid does not comply. Ms. Cofoni expressed hesitation in now unilaterally changing direction and not awarding that bidder the same determination. She agreed with Councilman Hirniak’s concept, but said that being so far along in the process makes it difficult to do that.

Councilman Hirniak asked what they needed to comply with and to what standard do they need to adhere. He stated that Director Spring was involved in the drafting process and he admitted that he can’t answer a lot of the Council’s questions. Both parties have identified the bid specification as being inconsistent, inconclusive, and subject to independent interpretation. Councilman Hirniak stated that everyone should be on the same page and that he doesn’t feel comfortable making that decision.

Tiena Cofoni stated that she thought in the last hearing, that was why the Council was unable to make a determination on several of the items that were raised, that a determination on some of them couldn’t be made because of some of those very issues.

Mayor MacArthur stated that he had come to the meeting with a similar thought as Councilman Hirniak, but wanted to hear how people spoke about things. The Mayor said that one thing that occurred to him as he listened was that if the Council concluded that Brown’s didn’t comply, he would agree with him, that that would be the better next step then sending it to the next bidder and then one of these folks would challenge that and the Council would be back for a third hearing. Mayor MacArthur felt the bid is confusing enough and big enough, that some deviations would be found there too. The problem now is, as he had listened to this hearing, he hadn’t gotten past the first issue, and that is, as flawed as the spec is, it was flawed for everyone. In the areas that it’s flawed, they all did roughly the same thing. The Mayor said that he doesn’t look at Brown’s and say that they would be disqualified over one of those clearly flawed items in the spec, it would be over something like the air door. And based on what Tom Spring had said, the Mayor felt comfortable saying he didn’t see the violation in the air door that Brown’s proposed. He felt Tom Spring was making a reasonable assumption that in the details the switch will be inside, that the air door will function in a way that’s expected. Brown’s hasn’t spelled out every last detail, but it’s like that in point after point. Mayor MacArthur understood the error with the engine block heater, but they all responded to the error in the same way. He understood what Manager Lovell said, but stated that the block heater follows the engine, not vice versa, and no one bid a different engine so they can match up to the block heater.

Councilman Hirniak replied that the Mayor had said that a few times, and that he was asking the Council to take what is called judicial notice of that as being a truism. He asked if the Mayor was qualified to make that statement.

Mayor MacArthur responded that it was his opinion and asked what “judicial notice of that being a truism” meant.

Councilman Hirniak explained that it is essentially an edict that the heater follows the engine.

Mayor MacArthur again said it was his opinion, and that he believes that because it is a secondary mechanical item supporting the engine. The Mayor said in looking at these items he didn’t see which one doesn’t comply. And if there isn’t one that doesn’t comply, on what basis does the Council throw out Brown’s bid as faulty as the spec may be.

Councilman Guadagno stated that he agreed with the Mayor, that was his thinking also.

Mayor MacArthur asked what the reason might be to throw out Brown’s bid.

Councilman Hirniak stated that he doesn’t get to that issue, he starts from the very threshold issue that the rule book is faulty, and that is what corrupts the entire process. There has been an admission on that account from one of the three individuals who drafted it. And there has been agreement by the two litigants to this case that that is in fact accurate. Councilman Hirniak felt that from an equitable perspective the Council owes nothing less to this competitive bidding process than to go back to square one, allow them to clean up that bid which is something that sounds like the Director really wants to do, and have this rebid. Councilman Hirniak was unsure whether or not that could be done, but stated that he would like to be told that it could because that’s the equitable thing to do.

Councilman Napoliello asked Tiena Cofoni if that could be done.

Tiena Cofoni said that she doesn’t say whether or not she agreed with the Mayor’s conclusions, but she agreed with the Mayor’s order of analysis. In order to do something like that, the Council would need to determine that the bid provided is non compliant. With regard to the four, Ms. Cofoni said that she thought that it was the same truck as Mid-Atlantic. She thought Deluxe and Mid-Atlantic were the identical truck and therefore, she didn’t know that there was going to have to be much evaluation on that. But she felt more comfortable with a determination on Brown’s specification before moving on.

Mayor MacArthur stated that he was, but he was doing that based partly on the fact that Ms. Cofoni is saying it can’t be tossed out. The Mayor said he understands what Councilman Hirniak is saying about the flawed process.

Deputy Mayor Loveys made the following comments:

• He agreed with both scenarios.
• He agreed that the bid package specifications were flawed & therefore difficult to analyze.
• The PTO issue confused him.
• He would have to depend on the engine block heater.

Councilman Hirniak asked how does one make a ruling when he doesn’t know what the rules are.

Councilwoman Carey asked if the Council were to say that this was non-conforming, what would happen with the fourth bidder.

Tiena Cofoni explained that the bidders are only required to hold their prices for 60 days. The fourth bidder could say they’re no longer willing to honor their price or they could say they want it.

Someone present stated that he could represent the fourth bidder as it is an affiliated entity.

Tiena Cofoni explained that if the Council found Brown’s to be non-compliant, then there would be no one left and it would have to go back out to bid. At the last hearing with Mid-Atlantic there were multiple items that the Council said they could not make a decision on. In this hearing if the Council as a whole says a decision can’t be made on any of these, then that’s their decision.

Councilman Hirniak asked the Mayor if he would allow the Council to hear from both parties on the concept of it being inequitable from the start and that the bid specifications were so compromised that no one knew what rules to follow.

Mr. McDonald stated that the problem he saw with it was that his client was awarded the contract so currently they are operating under the contract. The law says unless you find a material defect in their bid documents, then you can’t take it away. He explained that because of the case Bodies by Lembo, the low bidder can go to court. They had a low bidder and the second bidder came in and said “the low bidder didn’t meet these specs,” and the court said “you’re right, the specs look terrible, rebid it.” Bodies by Lembo, who was the second bidder, appealed that to the appellate division, they said a judge made an error. The judge was not supposed to say “these look in error, rebid it,” it’s supposed to go to the second bidder and then the analysis was supposed to happen like it is right now as to whether that person met the specs. Mr. McDonald said that as far as he’s aware, that’s as much guidance as there is for a situation like this.

Councilman Hirniak asked if that was a law division case or a chancery case.

Mr. McDonald stated that it was a law division case because it had to be filed through the assignment judge.

Councilman Hirniak clarified that it wasn’t an equity court.

Mr. McDonald stated that the chancery judges don’t hear these cases, assignment judges do, so that doesn’t mean they can’t use equity.

Councilman Hirnaik asked how he could reconcile Mr. McDonald’s comment that there’s an inconsistency in the bid specifications.

Mr. McDonald replied that he thought Tom Spring said it best, the professionals realize that the damper that they were talking about related to a PTO that was in a past bid. He explained that this damper on the front of the truck wouldn’t be put on if wasn’t going to hook to the PTO that was in the old bid. All of the bidders made a reasonable decision that this was a mistake and they went to the more modern PTO which was the mesh PTO.

Mr. McDonald noted the timing of the bid. The bid came out last September, there were 3 weeks to put together a fairly comprehensive document; it’s not just filling in the price and mailing it in. The bid responses are comprehensive, you have to go with your body company, you have to list your body company. You may not even realize there’s an issue until after the fact; you may not have time to send in the 3 day notice and get something back. These guys are bidding multiple jobs, multiple times, and these bids are different than a lot of other bids where just a price is submitted. You’re actually submitting a detailed spec which shows that you actually make the trucks. So it’s a little more difficult than you’re going to sell us a very standard police car, something like that would be very standard where you could say “wait a minute, this element is not part of the model you asked for.” This is much more detailed and it’s done on a very short turn around time. Mr. McDonald stated that he raised the issue of the October deadline because if it is rebid, when would it be rebid? Because it is a one year bid, it expires in October.

Tiena Cofoni stated that the contract expires in October. She explained that from a practical perspective, she thought the timing of when it has to go out to bid, receive bids, review, award, that would probably have to go out next year. This year would be done and it would have to go out for next year.

Councilman Hirniak replied that that doesn’t intimidate him, that ultimately the Council still has to make the right decision regardless of what the circumstance is.

Mr. McDonald replied that if they’re talking about what is believed to be equitable, then the equities of what the entire situation is should be considered. He is not saying it changes what’s being said. To get back to Councilman Hirniak’s original question, Mr. McDonald said the only case he was aware of is the Bodies by Lembo appellate division case. They said that you can’t just say rebid because it looks like there’s a problem, you have to award it to the second bidder and then somebody can challenge it.

Mayor MacArthur asked that someone find the portion of Brown’s bid dealing with the air cleaner.

Mr. Salerno stated that he had them next to each other and asked to present them.

Mayor MacArthur thanked Mr. Salerno & asked him to answer Councilman Hirniak’s question.

Mr. Salerno stated that Councilman Hirniak’s point was well taken, and he thought the answer is that, given the Council’s struggle with the inconsistency in the specs, they can find that that bid does not comply with the specs based upon the difficulty in determining what the specs are in their own minds. How can the Council reach the determination that Brown’s complied when in their own minds they’re struggling to reconcile some of these inconsistent specs? As the Town Manager pointed out, no one knows who didn’t bid, this isn’t just about the two parties here, it’s about the prospective bidders that were allocated. And just because maybe it didn’t make sense to put that particular heater with that particular engine, doesn’t mean that they met the specifications. And that’s an inconsistency, and because of that inconsistency, it cannot be concluded that they complied. Mr. Salerno submitted that the Council could find material deficiency and throw the bid out. And then we will be to the point which is to start the process over.

Todd Brown asked if he could address the engineer.

Mayor MacArthur agreed.

Todd Brown stated that Counsel said that there was “some piece of paper that was attached to our response.” He explained that noted on that “some piece of paper,” from the engineers from Navastar International who manufactured that engine, was written that 1,250 watt block heater is the only block heater that is available in that engine and if you replace that, you void the warranty. As far as a 1,500 watt block heater, there are no 1,500 watt block heaters in a 300 horsepower engine that’s available. Freightliner did bid this specification which is a different manufacturer. Deluxe and Mid-Atlantic which are owned by the same company, and Brown’s all bid Internationals. Freightliner bid a 1,000 watt heater, that was all that was available. So if it’s not available, you can’t make up, we need the 1,500 and that’s a material thing. It’s not available, and that was the engine, and it’s a $120 item. Mr. Brown explained that it’s like a windshield wiper, it’s not something material, so it’s not going to stop anyone from bidding. And the proof of that is, Freightliner bid and they put in what was available to their engine, was a 1,000 watt block heater, and that’s only used in the winter time under 30 degrees.

Andy Sanchez explained that the damper for the front mount PTO in exchange for constant mesh, they are two completely different items. Mr. Sanchez further explained that what you’re doing with the front damper is, you’re putting a pump on it and connecting a drive shaft to the damper. If you deviate from the specifications, Town A buys the truck and says “we don’t want a constant mesh,” that’s a $1,500 credit to the town. You then buy the drive shaft that connects to the pump that comes with the adapter plate you mount to the damper, there’s no charge, there’s a credit. Mr. Sanchez explained the process in detail and stated that it is not an expensive item that is being left off. What usually happens is, they’ll supply an adapter and it’s the wrong one anyway so you take it off and you put the right one on. That has to be supplied by the body builder because when you put that pump in the front with the drive shaft, you must make sure that you have the right adapter plate. It’s not what the truck manufacturer suggests, it’s what the body builder suggests. So when you delete the constant mesh PTO, you get a $1,500 credit and that’s where you put your pump straight with the drive shaft. The front damper is not removed, all you’re doing is extending your engine force to turn the pump. You get a different mounting pump, and you’re deleting that constant mesh PTO. So saying that either side supplied or didn’t supply that damper piece, you don’t get that.

Mr. Hanley said that Brown’s is saying on their specification sheet, “air cleaner, single element.” He stated that this is an upgraded option, it’s a different code on the piece of paper that his attorney gave to the Mayor. From the specs we turned in, it says “air cleaner with snow valve and in-dash control,” it’s a completely different option. Nobody is understanding that it’s an upgrade. It only costs $157, but this does not come with the standard air cleaner single element. Mr. Hanley explained that that was the reason that the paper he provided that had the CT400 standard air cleaner, it’s an air cleaner integral valve with in cab control, this is completely different, standard upgrade. This switch, this valve right here, and I understand Brown’s is saying “well we got the door,” well this piece right here, there’s no door, there’s no nothing because this piece is not in there, completely different piece. And I understand what Mr. Brown was saying about the block heater, he also got that information from International, from the vocational engineer group, a gentleman named Brett Bock. Mr. Bock is the person who sent me all this information that I printed here, the same engineer, saying no, standard and then this.

Mayor MacArthur understood, but stated that the Council is not evaluating Mid-Atlantic’s bid. The question that the Mayor said he was struggling with was, did theirs with less detail still comply? He stated that both the standard and the upgrade were described as air cleaner single element on the document that had just been provided.

Mr. Hanley explained that was the reason his attorney handed the Mayor the page from his bid. Because when any International dealer hits the code, it pops up, that’s the description, there’s no whiting out, there’s no typing it in, there is a place to type stuff in. You can see that on the last page of Brown’s bid, they put in fire extinguisher, they typed it in. He explained that everything else is a factory computer system, he would select this engine, it comes up, he would select this transmission, it comes up. You can’t type it in how you want it, it’s International’s program that is followed. Mr. Hanley explained that was the reason he provided a copy of his, to show that it said “with integral snow valve and on dash switch.” He stated that he was showing that Brown’s does not have it; they can say it’s there, but it’s not, that is the factory.

Mr. McDonald responded that he thought the Mayor understood their position in reference to the air cleaner single element, and Brown’s did take exception to the requested specs.

Mayor MacArthur said he understood. He asked the Council members and Manager how they’re evaluating Brown’s bid at the moment.

Councilman Guadagno stated that he couldn’t see anything in which to turn down the bid. He felt that even though the specifications were wrong, Brown’s produced an honest bid; whether it was the heating system or the air valve, he didn’t see how it could be turned down.

Councilman Napoliello stated that he agreed with Councilman Hirniak, but because of what Tiena Cofoni had said, he didn’t think at this point in the process the Council could make them go out to bid again.

Tiena Cofoni stated that it was her opinion that a determination had to be made on Brown’s first and then go from there.

Councilman Guadagno asked if the Council thought the bid was good or not.

Deputy Mayor Loveys stated that he was having trouble finding reason that Brown’s didn’t meet the spec. He stated that the only thing he was going back & forth with was the block heater, but he agreed with the Mayor’s scenario that the block heater is designed around the engine, not vice versa.

Councilwoman Carey stated that she agreed with Councilman Hirniak’s argument. She said that she is struggling with the air door, it sounds to her like there are two different things and perhaps the one Brown’s bid is not complying with the inside switch.

Councilwoman Veech stated that she heard that Brown’s was delivering the air door and they didn’t take exception. If they took exception to it with something else, then it would be a non compliance. She thought she had heard from Tom Spring that they were in compliance, but then she heard from Mid-Atlantic that they upgraded it, and they weren’t in compliance. Councilwoman Veech stated that the block heater was the one that stuck with her, that with the flawed bid and everything that everyone had said, it seemed like they were missing some of those that sort of washed out. But it seemed to her that Tom Spring, as the professional, had just stated that he believed the truck was going to be delivered as he wanted or he would’ve turned it around. She stated that she would like to start over from the beginning, but since that didn’t seem like an option, she would agree that the Council accept Brown’s bid.

Councilman Hirniak stated that the Council had some guidance from the NJ Supreme Court. He indicated that it was cited in the briefing materials provided by Brown’s, and that it was at the end of page 2; it distinguishes between non material and material conditions. Councilman Hirniak stated that he had been rereading this repeatedly, and the last sentence says “however, these (meaning non material conditions) must be distinguished from material conditions which when waived are (and it has some language there) likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding, or which are capable of affecting the ability of the contracting unit to make bid comparisons.” He stated that he continued to maintain that when viewing a bid spec that is wholly inconsistent, and wholly subject to multiple interpretations, it’s going to cause potential bidders from refraining. Councilman Hirniak said that it’s not about who is in the bidding process, the NJ Supreme Court said, “potential bidders to refrain from bidding” and it can also affect the amount of the bid; this is $100. At the last hearing the Council talked about the difference between two tires. Two different styles of engine heaters, the bid specs rightly or wrongly called for a 1,500 watt block heater. On April 25th the Council found that where the bid specs called for 130 amp alternator, it had to have a 130 amp alternator, end of story. Whether it’s possible to have a 130 amp alternator or not, the Council didn’t get to that, it was what the bid specs called for, that’s what they had to provide. Councilman Hirniak stated that these bid specs were faulty, nonetheless, they still called for a 1,500 watt block heater, that was not provided by Brown’s. He felt that it is a material condition which under the case law from Terminal Construction Corp. cited by Brown’s own attorneys in its briefing materials, is a non waivable material condition requiring us to reject their bid.

Mayor MacArthur stated that the Council has been talking in either/or terms, either Brown’s bid gets rejected or accepted, or the approach which is different relief altogether. It occurred to him that a decision can be made based on multiple factors. He stated that even if one factor may be questioned by somebody, there are multiple reasons and the Council can reach a conclusion. The Mayor felt that the Council could conclude that it’s a flawed process and go out to bid again. For him, the air door is the issue that made him feel that Brown’s bid should be rejected. The goal is a competitive process, if everything was equal, he would probably give Brown’s the benefit of that doubt. The same benefit of the doubt that Tom Spring gave them, that they didn’t say it was a dash mounted switch, but they didn’t say it wasn’t either. Mayor MacArthur stated that everything is not equal. The process is so confused that he felt the Council couldn’t make assumptions, especially an assumption about a switch that’s on a dash versus a switch that requires an operator, from what he understood, to get out of his truck in the middle of the storm, and go around the front to a switch that’s mounted under the hood.

Tom Spring stated that there wouldn’t be a switch.

Tiena Cofoni stated that the operator would have to manually clear it.

Mayor MacArthur stated that it is the same effect and it is a potentially dangerous situation. He stated that with all the confusion around this bid, he didn’t think the Council should make the assumption that the bid is compliant. The Mayor said there are plenty of other things, and although the block heater hadn’t resonated as much with him, it is a non conformity. He stated that whether it’s because of an error in the specifications or because they didn’t question it, they didn’t comply. Mayor MacArthur stated that he thought that the Council should both reject Brown’s bid and reject the process and start over.

Councilman Napoliello asked if that could be done.

Tiena Cofoni reiterated that in her opinion, her advice would be to first make a determination on Brown’s bid. She said that she has no problem with what the Mayor said as a determination, to reject Brown’s bid as being non compliant and then go back out to bid. Ms. Cofoni said that her concern was that she didn’t want the Council to skip a determination on Brown’s bid.

Mayor MacArthur stated that all of the Council members are acknowledging that some of these areas are a little bit borderline, but on April 25th they were borderline too. The Mayor felt that there was a borderline decision that night, maybe a little less so, but that he just didn’t think the Council should make assumptions about a safety matter.

Councilman Guadagno stated that he has never seen a guy get out of the cab and go clean out the air door. He asked Tom Spring if that is what happens on the plows that are out there now.

Tom Spring stated that it is done more with the smaller trucks.

Manager Lovell explained the different types of snow storms. He said there are certain snow storms where it’s very significant, but the majority of snow it’s not significant. When the driver goes into the type of snow that’s significant, the truck will stall out.

Councilwoman Veech asked about the legal ramifications if it is determined that Brown’s was non compliant and go out to bid again, will the township get sued if a bid is rejected?

Tiena Cofoni stated that she wouldn’t know, that Brown’s would be able to tell the Council easier than she.

Mr. McDonald directed the Council to the resolution that the they came up with last time where the decision was that when Brown’s pointed out the failure to list halogen head lamps, safety triangles, full size spare heavy duty floor mats, fire extinguisher, flares, first aid kit, emission test, parts and triangles, it was found there that Mid-Atlantic contended that all of those items will be provided despite its proposal not specifically mentioning that. This Council then found that they could not deem that non compliance with the bid. Mr. McDonald stated this because now the Council is saying that because the specific language after the single air cleaner is not there, it’s assumed that Brown’s wasn’t going to provide it.

Mayor MacArthur explained that he thought there was a difference. Mr. McDonald is talking about supply or not supply in the examples, but the Council is talking about the specific type of equipment that’s being installed and there are variations of that equipment. The Mayor stated that he can’t tell whether Brown’s is supplying the equipment that was called for, and under the circumstances, he didn’t feel that he could make that assumption.

Mr. McDonald stated that the argument that was made last time was that Brown’s did say they were going to comply with the spec and not take exception, and the product was defined in general. He stated that he never got a copy of that, it wasn’t provided in any of their papers. Mr. McDonald said that it’s now been presented tonight, but the Council had made that finding before, that Brown’s generally put the air cleaner in. He stated that he heard Mr. Spring say that it’s his understanding that the general mention of that was going to include the switch. Mr. McDonald said that the same rational that was used before saying “they didn’t take exception, they didn’t mention it, but they didn’t say they’re not going to give it, so we’ll give them the benefit of the doubt” is now not being given in Brown’s direction.

Mr. Salerno stated that Brown’s specified what they were going to supply, they were only going to supply the air cleaner as opposed to the exact option which was requested, which was the air cleaner with the switch with the two different filters. So when something is specified and the bidder says this is what we’re going to provide, and they don’t provide what’s requested in the bid spec, that’s a distinction that we’re talking about.

Mayor MacArthur stated that he and the Council understand the issues, and they don’t have a decision, there are different opinions around the table that have been expressed. The Mayor asked Manager Lovell and Tom Spring what happens if it is determined that that the bid was not compliant and that it goes back out to bid, how long would it take and who supplies plows in the interim.

Manager Lovell replied that to re-advertise and get it out on the street, and be in a position to award early fall. It takes 7 or 8 months to deliver a truck so it would be 9 months instead of 7 months.

Councilwoman Veech asked how many trucks and towns this affects and what kind of recourse they would have.

Tiena Cofoni stated that towns could always go out to bid on their own for a truck. A municipality who wants one of these and sees that there isn’t a contract right now, can always go out on their own and go out to bid on their own. So this wouldn’t prevent someone from getting a truck, they would have to go through other avenues to get a truck. They wouldn’t be able to take advantage of our co-op contract to get a truck.

Mr. Brown stated that they pay for that option to buy the truck at the lowest price without having to go through the bidding process themselves. So by not having an option in place for three months, your members don’t get what they pay for which is an option to purchase this, they have to then do the process themselves. He said that he would defend Mr. Spring, that you have to understand that these trucks are spec’d off of a model truck, there’s no perfect spec, you’re never going to have a perfect spec. They’re spec’d off a model truck. So if you spec it off of an International, then Brown’s would be a lot closer to the spec than the person from Hoover who did the Freightline, they can only get a 1,000 watt block. So you have to understand that if you’re going to spec off a specific truck, you’re going to have deviations and things all over the place if you want to have everybody else bid to it.

Mr. Hanley stated that if there is a general spec next time around, there are going to be a lot of exceptions, it can’t be written exactly.

Mr. Brown explained that if a general spec is written, not on a truck, then there will be a list of exceptions from everybody, and the Council will probably be here again. It’s unfortunate, but that’s something that’s part of the reality of writing specifications that are very unique and that are used for a special reason. And it’s very easy, Mr. Spring puts out what he wants, everybody has to write down exactly what he wants or if they’re exceeding something, they need to write in, “I’m exceeding, this is what I’m giving.”

Mr. Hanley stated that there is the problem, like discussed last time about International, an engine brake is an exhaust brake, part of an engine brake. That analysis could be different for a Freightliner or for a MAC because they may not have those same issues. It has to be understood that no spec is going to be perfect. And a general spec that is not spec’d off a vehicle is going to lead to everyone listing exceptions and then there will be a fight over “is that a reasonable exception,” “is that a comparable product,” and you’ll be back here again.

Mayor MacArthur asked both parties if they felt like all pertinent facts that support each of their positions have been presented before the Council this evening.

Mr. Brown stated that he has a major issue, and it’s about the air intake. We state that we take no exceptions and we’re going to supply the air intake. You say it is a safety factor for the drivers. Also, you accept admittment, so you’re not accepting my word that we’re going to give you the air intake that you need, you’re saying “Mr. Brown, they’re saying you’re not taking an exception on there, but your specifications read X, we say Y.” Well, no one is an expert here at this table, and when you print something out as Mr. Hanley mentioned, you may or may not put in all the verbiage. Regardless of what he says, that’s what the deal is. We state, so to cover us if we had any misses, whatever it might be, wheels, tires, whatever it might be, we take no exceptions, that’s what we stated. The Council accepted that fact last time when Mid-Atlantic argued about the triangles, the triangles are a safety factor, the truck breaks down, it’s a safety factor; the fire extinguisher, pretty much a safety factor. Mr. Brown stated that the Council accepted Mid-Atlantic’s word that they were taking no exceptions, but now will not take Brown’s word that we didn’t take any exceptions on the air intake.

Mayor MacArthur stated that if it already has been discussed, the Council has been listening carefully, and they want to make the right decision. He stated that it isn’t about trust, the Council believes the parties. The Mayor asked if either party believed that there was a material fact that hadn’t been presented.

Mr. Hanley stated just one distinction that he wasn’t sure if he had made clear enough, the distinction from the last spec items we said we would take exception to, they weren’t listed. Here you have something listed and then you have a contract that doesn’t comply with the spec, then you have a contrary statement that says we’re not making exceptions, that’s the difference. He stated that it is like saying “here, this is a V6 we’re giving you, but we’re not taking exception, but since you wanted a V8, we’ll comply”; big difference.

Mr. Brown stated that both Mid Atlantic and Browns know that if you deliver a truck to a town, or a county, or the Parkway or NJ Turnpike, somebody comes out with a clipboard and the bid specs, and there’s one mechanic and they go line item by line item. Everything that you don’t get, they’ll say to you give the truck back. Mid Atlantic bid NJ Turnpike and the Parkway, and they’ll tell you, they had to rent a lot next door to put the stuff that was missing on the trucks back because nobody accepts it. So whatever decision the Council makes, which is going to be the right decision, don’t worry about if the town won’t take it if it doesn’t meet what’s on the piece of paper. So you can say you’re not clear on the air intake, but when they get that bid spec, and when they bring it to that town, one man will have a clip board, and one mechanic, because they always do it, and they’ll go through line item by line item, tire size, by this, by that, and they’ll say to them “you didn’t meet it, go bring it back home.”

Mayor MacArthur stated that there were two different views expressed around the table about compliance. He asked someone from the Council to articulate a motion on one of those sides. If it is voted down the Mayor will see if there is another motion.

Councilman Guadagno made a motion to accept the bid from Brown’s. There was no second motion.

Councilman Hirniak clarified that under no circumstance is tonight about inpeaching Brown’s credibility. He explained that what the Council members are trying to do tonight is what anybody in their position would be doing, and that is avoid a situation where we have to take your word for something. Avoid a situation where we have to take anybody’s word for something because then you get into a he said/he said situation. How difficult do you think it would be for us if we had to rely on somebody’s word that something would be done? How could we possibly make a decision based upon just somebody’s verbal representation, somebody’s word? That doesn’t work, we need to have it down on paper, and that’s what the court requires too. What the Council did on April 25th was not apply one standard to Mid Atlantic and today apply another standard to Brown’s. What the Council did on April 25th was, we found two issues of materiality in their bid. On everything else, which includes the laundry list issues that you’ve been discussing, we passed on that because we couldn’t figure it out. We were unable to, as a Council, as 7 individuals, come to a conclusion and be comfortable enough in passing a resolution on that conclusion. On the issue that is being discussed now, the Council didn’t apply a standard, all we said is we can’t figure it out. Councilman Hirniak stated that under no circumstances should Brown’s feel that they’re not getting a fair shake today or that we’re impeaching your credibility or applying different standards; the Council is trying to do the exact opposite.

Mr. Hanley expressed to the Mayor that Brown’s did put it in writing.

Mayor MacArthur asked if there was another motion that anyone wished to make.

Councilman Hirniak made a motion to reject Brown’s bid by virtue of finding that its 1250 watt block heater is a material, non-waivable deviation from the bid specifications requiring the rejection.

Mayor MacArthur asked if Councilman Hirniak would consider an amendment to his motion to include the air door.

Councilman Hirniak stated that he would, if the record could reflect it.

Councilman Napoliello seconded the motion.

Mayor MacArthur asked if there was any discussion.

Councilman Guadagno stated that he thought what the Council was doing right now was very unfair. He explained that Brown’s came in with a bid that fit what was requested, and the Council is looking for little tiny mistakes so that it can go out and be rebid. Councilman Guadagno thought a disservice was being done to the people that put their bid in. He stated that he knew what they wanted to do, and he appreciated where they wanted to go with this, but he felt it wasn’t being done right.

Deputy Mayor Loveys stated that he had trouble supporting the motion with the amendment. He stated he could support the motion based on the 1,500 watt engine block, but he felt that Brown’s took no exception to the air cleaner. Deputy Mayor Loveys stated that he wouldn’t be able to find them non-conformant based on the air cleaner, but he could on the engine block.

Mayor MacArthur stated that he felt exactly opposite, and that he had asked for the amendment because he couldn’t support the block heater alone.

Councilwoman Veech stated that she agreed with Mayor MacArthur.

Councilman Hirniak suggested that the Council votes on his motion with the amendment, and based on the outcome, they can revisit the need for another motion.

Mayor MacArthur asked Donna Luciani to restate the motion as it stands.

Donna Luciani stated that there was a motion to reject Brown’s bid by virtue of finding that the block heater and the air door do not meet the specs.

Mayor MacArthur stated that because it doesn’t take multiple non compliances to warrant concluding that the bid is not compliant, it only takes one. He asked Tiena Cofoni to clarify that if a Council member agrees with one but not both of the items in the bid, if by voting yes they are voting for both.

Tiena Cofoni stated that they would be voting for both. She suggested that if they didn’t agree with both then they vote no, and then another motion may need to be made.

Councilwoman Carey asked if the motion has to have the reason for the non conformity.

Tiena Cofoni said it does.

Mayor MacArthur asked if for simplicity sake, he could withdraw his amendment even though the motion had been seconded.

Tiena Cofoni stated that he could not, the person who made the motion already made the amendment, and there was a second. A vote needed to be taken and then they could go from there.

The following roll call vote was taken:

AYES: Councilman Hirniak

NAYS:
Councilwoman Carey
Councilman Guadagno
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

Councilwoman Veech asked for someone to show her where in the documents the $157 item deviated from Brown’s not putting it in. She stated that she wanted to determine if she agreed with Councilman Guadagno. If Brown’s said that they were going to comply with it and they didn’t take exception, then she would be voting with Councilman Guadagno.

Tiena Cofoni clarified that Councilwoman Veech wanted to see Brown’s bid and asked if what she meant was the language “air cleaner single element.”

Councilwoman Veech commented that they said they were going to put in an air cleaner single element and asked for confirmation that Tom Spring had said he was ready to accept an air cleaner single element.

Tom Spring stated that he had originally said that.

Councilwoman Veech asked if he had now changed his mind.

Tom Spring stated that he had changed his mind. He explained that he had gone through the bid specs that were handed in by both companies, and one says air cleaner, single element, and the other says air cleaner single element with integral snow valve and in cab control.

Councilwoman Veech asked Tom Spring if by reading the bid he felt that Brown’s decided not to put the switch in.

Tom Spring stated that it’s not in their sheet of their bill of what was in their specifications.

Councilwoman Veech asked Tom Spring if, in his opinion, if it doesn’t say it in there, they’re not delivering it. She said that at the last hearing Tom Spring said all those other things they would normally deliver.

Tiena Cofoni explained that there is an important distinction there, if it’s completely silent, like it doesn’t say fire extinguisher, it was assumed they would include it. Although the resolution doesn’t say that, the resolution says that the Council had made no determination. The argument last time was, that if it’s completely silent, it says nothing about safety triangles, that you would assume that they would comply. That was the argument, however, the council did not make that discern. Ms. Cofoni said that on those items last time, there was no decision made. The Council said they were unable to come to a conclusion on those.

Mayor MacArthur stated that on April 25th the Council awarded this contract to Brown’s, unless the Council votes tonight that they are not compliant, based on new information and a new decision, unless it is determined that Brown’s is not compliant, they continue by default. It is their contract as it stands today. Only 2 real items were talked about for the last couple of hours, the engine block and the air cleaner. A vote on the two of them together was just taken, and that motion failed. He stated that there were really only 2 other permutations of that motion that he could imagine, and that is that there is a motion that it fails because of the engine block and/or there is a motion that it fails based on the air cleaner, as separate motions. Mayor MacArthur stated that if the Council can’t find that Brown’s failed on one of those two, then a decision hasn’t been able to be determined.

Councilman Guadagno said that Councilwoman Veech had asked the pertinent question about the air filter. Tom Spring said, that’s right, there’s no switch inside would he reject the bid on the air filter. Councilman Guadagno stated that if that’s the case, he makes a motion to reject the bid on the air filter. He explained that he felt that was the key of it, if Tom Spring said there would be a switch in there, he would say yes, but Tom said no, there’s no switch in it the way he sees it.

Mayor MacArthur suggested that they go back to Councilman Hirniak’s initial motion as he made it, if he is agreeable.

Councilman Hirniak made a motion to reject the bid submitted by Brown’s due to the non-conforming materiality of the 1,250 block heater. Deputy Mayor Loveys seconded the motion.

Mayor MacArthur asked if there was any discussion. He again stated that he still didn’t see how the Council could make that conclusion. The Mayor explained that the engine block was a flawed language that every bidder understood to be flawed because it couldn’t work on that engine. One doesn’t change engines because of a heater, he doesn’t put a bigger engine in to comply with the block heater. Mayor MacArthur stated that he doesn’t see how any rational bidder could come to that conclusion.

Councilman Hirniak stated that the case law says anything that potentially influences a potential bidder to refrain from bidding.

Mayor MacArthur asked what the conclusion of that potential bidder would be.

Councilman Hirniak said the potential bidder would say no, I can’t provide it so I’m not going to bid.

Councilwoman Veech reiterated that there is a process for them to clarify.

Councilman Hirniak replied that no one had used.

The following roll call vote was taken:

AYES:
Councilman Hirniak
Councilman Napoliello
Deputy Mayor Loveys

NAYS:
Councilwoman Carey
Councilman Guadagno
Councilwoman Veech
Mayor MacArthur

Mayor MacArthur asked if there was another motion.

Councilman Guadagno made a motion to reject the bid due to no inside switch for the air filter. Councilwoman Carey seconded the motion.

Mayor MacArthur asked for any discussion.

Councilwoman Veech commented that she felt if both bids were read through, the Council would still see lines like that on things. She said for Tom Spring to flip flop yes and then no, she felt that it was not a reason to throw out an entire bid for a switch in a truck.

Mayor MacArthur explained that the reason he changed his mind was that he was trying to find a way to accomplish Councilman Hirniak’s greater purpose, and Councilman Guadagno was the one who talked him out of it. If you look at Brown’s bid, they say they’re supplying an air cleaner single element, they don’t say without a switch inside. Now, Mid Atlantic’s bid does say that, it gives that additional detail. Here’s the sheet that was shared with us, that shows the various options. The air cleaner is called an air cleaner, single element in the one case, and in the second case it’s called an air cleaner, single element and it describes the inside switch. So both parties have said they’re putting an air cleaner, single element, one specified the details, the other didn’t, but they took no exceptions. The Mayor stated that he thought that a rational interpretation is, they took no exceptions, they intended to supply the details as required. Mayor MacArthur stated that when he thinks about that fact, that is why he couldn’t support it. He said he was making an assumption to get to a desired answer, and he felt Councilman Guadagno was right the first time when he said it wasn’t fair.

Councilman Guadagno stated that what changed his mind was that Tom Spring said that they did not bid the inside switch.

Mayor MacArthur asked Tom Spring to repeat what he had said.

Tom Spring explained that what both vendors do is, they go online to the International site and they pick their options and it prints out a sheet that they submit. So Mid Atlantic picked the air cleaner single element with integral snow valve and in cab control. Mr. Spring felt that by reading that, he was thinking that $157 just went down to the total because they added that thing. Brown only put air cleaner single element, they didn’t pick, out of their options, the inside switch. Tom Spring stated he didn’t see it on there and it would be printed out on it if they picked it on their computer screen when they were on the International site. He said it was no different than gear ratio, they each have 2 different gear ratios in which they picked which gear ratio they wanted.

Mr. Hanley stated that he can’t type in whatever he wants, that he picked the option. He said it was no different than the triangle that you click on and say triangle.

Councilwoman Veech clarified that he didn’t pick the switch.

Mr. Hanley responded that Mid-Atlantic didn’t pick the triangle, it says triangle, and they didn’t pick it.

Mayor MacArthur said that Mr. Hanley’s answer just suggested to him that he is not disagreeing with Tom Spring’s assessment, that he didn’t pick the option that they are providing.

Mr. Hanley said his position is that they are providing, and they said no exceptions, they picked a general name, not the specific.

Mayor MacArthur asked if there were any other comments or questions on the motion.

Councilman Napoliello asked for the motion to be repeated.

Donna Luciani stated it was a motion to reject the bid due to no inside switch for air door.

Mayor MacArthur asked Tom Spring to clarify that he was saying that Brown’s had to choose the air cleaner without the inside switch for it to show up on their bid the way it showed up, if that was the only way it could show up that way.

Tom Spring said yes, that every option in there is what they pick. He said that he hasn’t seen the actual website, and he didn’t know if you have to pick an air cleaner or if you come down to air cleaner and you pick an option with it. Mr. Spring stated he wasn’t sure how the website actually works. He explained that when you get to that point, Mid Atlantic checked that they wanted the integral snow valve and in cab control and Brown did not pick that so it’s not on his print out.

Mayor MacArthur restated that the spec called for the single element door with the in cab control. He said that the fact that one picked it makes it clear that it something that can be picked off of the computer site.

Tom Spring stated that from what he saw, this entire spec has items that are picked by one and not by the other so you have to pick that option.

The following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello

NAYS:
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur

Mayor MacArthur stated that the motion passed & told Manager Lovell that it needs to go back out to bid.

Tiena Cofoni explained to the parties that a resolution will be drafted like last time, and it will be adopted at the August 1st meeting.

Mayor MacArthur stated that the hearing was over.

L. DISCUSSION ITEMS

There were no discussion items.

M. OPEN TO THE PUBLIC

Resident Richard (no last name stated) stated that he has been looking at the sewer bills. He feels that the way the township bills for sewers is very unfair. He said that it can be done by gallonage and that he has been working with Mike Soccio and believes there can be discussion about it. He stated that nobody measures sewerage, the common measurement is the amount of water you use because whatever water you use, other than lawn watering, all goes out the sewerage. Richard also stated that other municipalities offer a senior citizen discount, $20 a month per bill or something like that.

Mayor MacArthur replied to the resident that he’s right, that this issue has been discussed. The dilemma has been that in Randolph there are people on water but not sewer, and people on sewer but not water. The Mayor encouraged Richard to bring his facts to the attention of Manager Lovell.

Seeing no one further from the public, the public portion was closed.

N. COUNCIL COMMENTS

Mayor MacArthur reported that he, Councilman Guadagno, Manager Lovell, Ed Buzak, Darren Carney, and Councilwoman Veech had met earlier in the day to discuss a potential merger of the court system with a neighboring town. It is an ongoing discussion.

O. EXECUTIVE SESSION

The Executive Session was held at the beginning of the meeting.

P. ADJOURNMENT

Councilwoman Veech made a motion to adjourn the meeting at 10:25 p.m. Councilwoman Carey seconded the motion, and the following roll call vote was taken:

AYES:
Councilwoman Carey
Councilman Guadagno
Councilman Hirniak
Councilman Napoliello
Councilwoman Veech
Deputy Mayor Loveys
Mayor MacArthur