Explanation
Background:
This Ordinance is submitted to settle the lawsuit captioned Kokosing Industrial, Inc. v. City of Columbus, Ohio, Franklin County Court of Common Pleas, Case No. 20-cv-6133, in the amount of $290,991.60. This amount will be made payable to Kokosing Industrial, Inc. (“Kokosing”).
This dispute relates to the Hap Cremean Water Plant, UV Disinfection project (the “Project”). Kokosing and the City of Columbus (the “City”) entered into the Hap Cremean Water Plant, UV Disinfection Contract 2025, CIP 690536-100000 (the “Contract”), which required Kokosing to install a system for ultraviolet (UV) disinfection of source water as an enhancement to the water treatment process. The bid documents related to the Contract advised bidders that they would be required to accept assignment of a UV equipment supply contract that the City previously entered into with the supplier of the UV equipment, Xylem Water Solutions USA, Inc. (the “Xylem Contract”). The Xylem Contract was for a total of $3,198,150.00, and included a deduct change order in the amount of $290,991.60 (the “Credit”), and a force account (i.e., contingency) in the amount of $290,000.00 (the “Force Account”). The Xylem Contract, including the deduct change order showing the $290,991.60 Credit to the City, was provided to bidders.
The bid form included six (6) Pay Items. Pay Item 1 was for General Construction, where bidders entered their lump sum bid for all work except the value of Pay Items 2 through 4. Pay Item 2 was pre-populated with a fixed price for the value of the Xylem Contract ($3,198,150.00). Pay Item 2 did not include a reduction in price for the Credit. The City of Columbus awarded the Contract to Kokosing and assigned the Xylem Contract to Kokosing.
Subsequently, Kokosing submitted a schedule of values indicating that, prior to submitting its bid, it moved the Credit from Pay Item 2 to Pay Item 1 and applied it as a deduct to Pay Item 1. Kokosing alleges that becaus...
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