January 2, 2003

Barb Miller, Clerk
City of Florence City Hall
250 Highway 101 North
Florence, OR  97439

Brad A. Taylor
Brown and Caldwell
1025 Willamette Street, Suite 300
Eugene, OR  97401-3199

Re:    Protest and Request for Hearing / re: The City of Florence, Oregon Well Field and Water Treatment
            Plant Expansion

Dear Ms. Miller and Mr. Taylor:

.Reference being, and the same is hereby made to the letter dated December 27, 2002, delivered by UPS on December 30, 2002, from Brown & Caldwell rejecting a pre-qualification of well drilling subcontractor Casey Jones Well Drilling Company.

It has been the law of this state for 90 years that a contract is void where the specifications improperly limit bidding to a sole provider.  The court in that landmark case recited the "well-settled general rule" that public contracts not based on "the competition required by statute, are void."  Terwilliger Land Co. v. City of Portland, 62 Or 101, 123 P 57 (1912).

Only one well drilling contractor in the entire state of Oregon meets the qualifications set forth in the specifications, a fact known to the City of Florence and its engineer prior to the solicitation of specifications, bidding, and contract documents in November of 2002, a fact known to the City and its engineer.

A protest of those specifications was delivered by Bob Murphy of Casey Jones Well Drilling to Mr. Charles Wright of Brown & Caldwell on December 29,l 2002.  Pre-qualifications are allowed but are to include financial, technical, and personal resources, as well as experience and facilities, to perform the contracted work, and also whether an offeror has a positive record of integrity and satisfactory performance.  The pre-qualification statutes may not be used, as they are here, for purposes of doing indirectly what an agency cannot do directly.  Any contract awarded to Christensen Well Drilling Company will be void as a matter of law.

Further, the letter above-referenced does not meet the statutory requirements of rejection of pre-qualification as it does not advise Casey Jones of its right to a hearing and is also invalid.  (ORS 279.041(2)).
 

" . . . If the agency finds the prospective bidder is not qualified as to any contracts covered by the rule, resolution, ordinance or other regulation, the notice shall specify the reasons found under ORS 279.029(6)(a)(B) for not prequalifying the prospective bidder and inform the person of the right to a hearing under ORS 279.043 and 279.045."

Please issue the appropriate addenda by correcting the specifications, and moving the bid receipt date accordingly.  Competitive bidding is in the City's best interest.  One bidder is not to the City's advantage.

Very truly yours,

(signature)
ROBERT H. FRASER
RHF:bmd
cc:  Client