The URL can be used to link to this page

Home My WebLink About12/2/2025 Item 5f, Urban HabitatCharles K. Stec Attorney at Law ckstec@lanak-hanna.com {2598 23965} 1851 East First Street, Suite 700, Santa Ana, CA 92705 P 714-620-2350 F 714-703-1610 December 1, 2025 VIA E-MAIL ONLY City of San Luis Obispo Attn: Project Manager 919 Palm Street San Luis Obispo, CA 93401 c/o aramos@slocity.org; wbanker@slocity.org; CityClerk@slocity.org; AColunga@slocity.org RE: URBAN HABITAT’S APPEAL RELATED TO ITS BID PROTEST OF BROUGH CONSTRUCTION, INC.’S BID Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Dear Mr. Banker-Hix, Please accept this letter as Urban Habitat’s (“Urban”) appeal related to its protest of Brough Construction, Inc.’s (“Brough”) bid for the City of San Luis Obispo (the “City”) Righetti Ranch Parks – Community Park, Specification No. 2000054 (“Project”). This appeal incorporates by reference as though fully set forth herein the following documents: A.November 6, 2025 Urban’s Bid Protest. (Attached as Exhibit A.) B.November 12, 2025 Brough’s Response to Bid Protest. (Attached as Exhibit B.) C.November 14, 2025 Urban’s Reply in support of Bid Protest (Attached as Exhibit C.) D.November 19, 2025 City’s Email regarding Bid Protest. (Attached as Exhibit D.) In accordance with Municipal Code, Chapter 1.20,et. seq., Urban submits its appeal to City and requests that City staff provide this appeal to the appropriate including City Council as needed. We understand that the awarding of the Project is on the City Council’s agenda for December 2, 2025. As detailed below, City Council is entitled to and should reject Brough’s bid as non-responsive for failure to follow the Project specifications whether or not it considers Urban’s bid protest. I.City Is Entitled To And Should Reject Brough’s Bid As Non-Responsive For Failure To Follow The Bid Specifications Even Without Urban’s Bid Protest Multiple California authorities confirm that City is entitled to and should reject Brough’s bid for failure to follow the bid specifications for the Project. (See,MCM Const., Inc. v. City & County of San Francisco, (1998) 66 Cal. App. 4th 359, 368 [city properly rejected lowest bid as nonresponsive where it did not conform to the requirements contained in the invitation for bids for a subcontractor list];see also,Valley Crest Landscape, Inc. v. City Council, (1996) 41 Cal. App. 4th 1432, 1438 [bid non-responsive where changes made to subcontractor percentages of work performed and contractor File No. 33498 Page 2 {2598 23965} bid did not confirm to self-performance requirement];in accord,Taylor Bus Service, Inc. v. San Diego Bd. of Education, 195 Cal. App. 3d 1331, 1341 [bid non-responsive where insurance trust information not follow bid requirements for insurance].) A bid must be “responsive” to the invitation for bids. A bid is responsive if its promises to do what the bidding instructions require and is a measure of whether the contractor's bid responds accurately and completely to the solicitation or bid rules and instructions. (See,MCM Const., supra,66 Cal. App. 4th at pg. 368. A bid that is deemed nonresponsive will not be accepted. (Id. at pp. 371–373.) While a City has discretion to waiver minor, nonmaterial irregularities or inconsequential deviations in the bid, a material deviation cannot be waived. (Id. at p. 368;Valley Crest, supra, 41 Cal. App. 4th at p. 1438.) A bid protest is not required, and the City is entitled to reject Brough’s bid as non- responsive based on the face of the bid alone. (MCM Const., supra,66 Cal. App. 4th at pg. 368.) Brough’s failure to follow the bid specifications requirements for listing the percentage of work to be performed by its subcontractors should not be waived since it gives Brough an unfair advantage as it could withdraw its bid a typographical error. A contract that is awarded in violation of statutes or regulations or that is otherwise nonresponsive is void and without effect. (e.g., Marshall v. Pasadena Unified School Dist., (2004) 119 Cal. App. 4th 1241, 1259;Valley Crest, supra, 41 Cal. App. 4th at p. 432;Konica Business Machines U.S.A. Inc. v. Regents of University of California, (1988) 206 Cal. App. 3d 449, 458.) II.Brough’s Bid Is Non-Responsive As detailed in Urban’s protest of Brough’s bid, Brough’s bid is non-responsive since it failed to comply with the September 24, 2025 Addendum No. 2 for Specification No. 2000054, the Standard Specifications Section 2-133A of the bid package requiring all bidders to list the “Percentage of toral base bid amount with your bid” and “Failure to do so results in a nonresponsive bid.” (Id., see also, Exhibit A.) As excerpted below, Brough’s bid does not list the “percentage of total base bid amount with your bid” for multiple subcontractors performing base bid line-item scopes of work including: (i) restroom, base bid line item 53; (ii) shade structures, base bid line item 30; and (iii) playground equipment, base bid line item 57. Page 3 {2598 23965} Thus, Brough’s bid is nonresponsive because it failed to submit multiple subcontractors’ “percentage of the total based bid amount” as required by Specification Section 2-1.33A. Moreover, Specification Section 2-1.33A expressly provides that the “Failure to do so results in a nonresponsive bid.” (Id.) Moreover, Brough’s Reply conflates the Specifications section for calculating its self-performance of work with a different section setting forth the express requirements to list the subcontractors’ percentage of the total base bid amount. (Exhibit B.) The Addendum 2 revision to Specifications, Section 5-1.13A relates only to determining the contractor’s self-performance of work and provides that “The value of specialty items of work is not included in the calculation”. Section 5-1.13A does not relate to, discuss, waive or modify in any way the express requirements of revised Section 2- 133A (and codified in Public Contract Code, Section 4104) requiring bidders to submit their subcontractors’ “percentage of the total base bid amount” on the Subcontractor List. Likewise, Brough’s incorrect citation does not change that Specification Section 2-1.33A expressly provides that the “Failure to do so results in a nonresponsive bid.” Therefore, Brough’s apparent misunderstanding of the Specifications does not excuse its failure to comply with the express requirements of Section 2-133A to list its subcontractor’s percentage of work of the base bid amount. III.Brough’s Failure Cannot Be Waived Because It Gives Brough An Unfair Advantage As It Could Withdraw Its Bid As A Typographical Error Without Risk To Its Bid Bond Brough’s Response attempts to gloss over its failure to follow the express requirements of the specifications as a clerical error. (Exhibit B.) However, the City cannot waive the express requirements to list subcontractor percentages because Brough fails to address that it gained an unfair advantage since Public Contract Code § 5103 allows a bidder to withdraw its bid when “a mistake was made in filling out a bid” and California courts have reasoned that the ability to withdraw a bid gives a benefit not available to the other bidders which, therefore, could not be corrected by waiving an ‘irregularity’.” (See,Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1428;see also,Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1442). When evaluating a bid, a public entity must follow the requirements of the Public Contract Code and any additional requirements it mandates in the bid documents. (Poza v. Department of Transp. (1983) 145 Cal.App.3d 269.) Because Brough gains an unfair advantage resulting from its failure to follow the Project’s specifications, and its bid does not follow the requirements of Public Contract Code, Section 4104, and Specifications, Section 2-1.33A, Brough’s failures cannot be waived by City. IV.The City Should Also Reject Brough’s Bid Because Failed To Exclude The Amounts For Specialty Contractors From Its Calculation Of The Base Bid Resulting In Smaller Reported Percentages For Its Other Subcontractors And Creating A Question Of Whether Brough Is Self-Performing Enough Of The Project To Meet The Bid Specifications For a separate and independent reason, the City should also reject Brough’s bid as non-responsive. Specifically, the Addendum 2 revision to Specifications, Section 5-1.13A direction that for Page 4 {2598 23965} determining the contractor’s self-performance of work that “The value of specialty items of work is not included in the calculation” was not followed by Brough. A simple mathematical verification of Brough’s subcontractor listed percentages compared to the value of such items to the base bid amount excluding special items demonstrates that Brough calculated the percentage of subcontractor work based on the gross total of its base bid without excluding the values of specialty items of work. In other words, had Brough followed the biding instructions the total base bid amount is reduced by the specialty items, the resulting calculation of the subcontractor percentage of work to be performed would be a larger percentage of the net base bid amount. However, Brough did not do that and as a result its percentages listed for those subcontractors it provided percentages for is artificially smaller and likely excluded some subcontractors that are performing more than ½ of a one percent of the work. This is a material deviation from the bid requirements because it allows Brough to set forth a smaller percentage of work performed by subcontractors and calls into questions whether it is self- performing at least 15% of the work as required by the specifications. (See, the Addendum 2 revision to Specifications, Section 5-1.13A.) California Courts have held that where it is questionable whether the contractors bid conforms to the self-performance requirements it is a material deviation that cannot be waived. (See, Valley Crest, supra, 41 Cal. App. 4th at p. 1438.) V.Conclusion Whether or not City considers Urban’s bid protest, Brough’s bid must be rejected by City because Brough failed to list the percentage of the total base bid for work of certain subcontractors performing more than ½ percent of the total base bid as expressly required by Specification Section 2-1.33A; and for those subcontractors that Brough did list percentages for, Brough did not follow the bid instructions for calculating subcontractor percentages which calls into question whether it is self- performing the minimum amount of work required by the specifications. These failures provided Brough with an unfair competitive advantage over other bidders and are material deviations that should not be waived by City. Thus, City should and likely must reject Brough’s bid and award the Project to Urban as the lowest responsive and responsible bidder. Sincerely, Charles K. Stec Attorney at Law of the Firm EXHIBIT A Charles K. Stec Attorney at Law ckstec@lanak-hanna.com {3078 33498} 1851 East First Street, Suite 700, Santa Ana, CA 92705 P 714-620-2350 F 714-703-1610 November 6, 2025 VIA E-MAIL AND OVERNIGHT MAIL City of San Luis Obispo Attn: Project Manager 919 Palm Street San Luis Obispo, CA 93401 c/o aramos@slocity.org; wbanker@slocity.org; CityClerk@slocity.org; AColunga@slocity.org RE: URBAN HABITAT’S BID PROTEST OF BROUGH CONSTRUCTION, INC.’S BID Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Dear City of San Luis Obispo Project Manager We represent Urban Habitat (“Urban”) with regards to its bid on the City of San Luis Obispo (the “City”) Righetti Ranch Parks – Community Park, Specification No. 2000054 (“Project”). This letter serves as Urban’s formal protest against the bid of Brough Construction, Inc. (“Brough”). The bid results were published on October 31, 2025. This bid protest follows the City’s protest instructions. Brough’s bid is non-responsive because it failed to list the percentage of the total base bid for work of certain subcontractors performing more than ½ percent of the total base bid; and thus, Brough’s bid must be rejected. Urban requests City reject Brough’s bid and award the Project to Urban as the lowest responsive and responsible bidder. I.BROUGH’S BID IS NON-RESPONSIVE In accordance with the September 24, 2025 Addendum No. 2 for Specification No. 2000054, the Standard Specifications Section 2-133A of the bid package, was revised and therein specifically requires that the bidder state on the subcontractor list the percentage of its subcontractor’s work of the total base bid. As it relates to the subcontractor list, revised Specification Section 2-1.33A requires: On the Subcontractor List, you must submit: 1.Name under which subcontractor is licensed 2.License number 3.DIR Public Works Registration Number 4.Address 5.Phone number 6.Specific description of subcontracted work 7.Percentage of total base bid amount with your bid. Failure to do so results in a nonresponsive bid. Furnish bid using blank forms provided in the Special Provisions. Bid must include all forms and must be signed by the bidder. Subcontractor List and percentage of each item subcontracted must be provided with the bid, on the List of Subcontractors form provided herein. (Id.; [Highlights added].) File No. 33498 Page 2 As excerpted below, Brough’s bid does not list the “percentage of total base bid amount with your bid” for multiple subcontractors performing base bid line-item scopes of work including: (i) restroom, base bid line item 53; (ii) shade structures, base bid line item 30; and (iii) playground equipment, base bid line item 57. Thus, Brough’s bid is nonresponsive because it failed to submit multiple subcontractors’ “percentage of the total based bid amount” as required by Specification Section 2-1.33A. Moreover, Specification Section 2-1.33A expressly provides that the “Failure to do so results in a nonresponsive bid.” A basic rule of competitive bidding is that bids must conform to specifications, and that if a bid does not so conform, it may not be accepted. A nonresponsive bid may be summarily denied by a public entity even if the bid is otherwise monetarily the best for the entity. Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1428. A bid is responsive if it promises to do what the bidding instructions demand. Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341. Usually, whether a bid is responsive can be determined from the face of the bid without outside investigation or information. Id. at 1342. The test for responsiveness focuses on the four corners of the bid documents and does not consider information or details outside of the bid and bid documents. Great West Contractors, Inc., supra, 187 Cal.App.4th 1425, 1428. When evaluating a bid, a public entity must follow the requirements of the Public Contract Code and any additional requirements it mandates in the bid documents. Poza v. Department of Transp. (1983) 145 Cal.App.3d 269 (emphasis added). {3078 33498} Page 3 {3078 33498} Moreover, Brough’s failure to follow the bid requirements cannot be waived as an irregularity. A bid fails to comply materially with the bid package if it gives the bidder an unfair competitive advantage over other bidders. Ghilotti Construction Co., supra, 45 Cal. App. 4th. at 904. Unfair advantages include those errors and omissions which would allow a contractor to withdraw its bid. Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1442. Specifically, Public Contract Code § 5103 allows a bidder to withdraw its bid when “a mistake was made in filling out a bid”. (Id.) The Valley Crest Court reasoned “As such, under Public Contract Code section 5103, North Bay could have sought relief by giving the City notice of the mistake within five days of the opening of the bid. The fact that North Bay did not seek such relief is of no moment. The key point is that such relief was available. Thus, North Bay had a benefit not available to the other bidders; it could have backed out. Its mistake, therefore, could not be corrected by waiving an ‘irregularity’.” Valley Crest, supra, 41 Cal.App.4th at p. 1442. To be clear, the express requirements of Specification Section 2-1.33A cannot be waived as a misunderstanding of the specifications by Brough or a clerical error, since it gives Brough an unfair advantage as it could withdraw its bid withdraw its bid without consequence to its bid bond, thereby gaining a competitive advantage. II.CONCLUSION Brough’s bid must be rejected by City because Brough failed to list the percentage of the total base bid for work of certain subcontractors performing more than ½ percent of the total base bid as expressly required by Specification Section 2-1.33A. Additionally, this failure provides Brough with an unfair competitive advantage. As a result of Brough’s failure to meet the bid requirements, Urban requests City reject Brough’s bid and award the Project to Urban as the lowest responsive and responsible bidder. Sincerely, Charles K. Stec Attorney at Law of the Firm cc: Via email only Jeffrey L. Brough Brough Construction, Inc. 530 E. Paulding Cir. Suite B Arroyo Grande, CA 93420 jeff@broughconstruction.com EXHIBIT B FELDMAN & ASSOCIATES, INC. ATTORNEYS AT LAW 11030 SANTA MONICA BOULEVARD SUITE 109 LOS ANGELES, CALIFORNIA 90025 (310) 312-5401 FACSIMILE (310) 312-5409 November 12, 2025 Via US Mail and Email City of San Luis Obispo Attn: Project Manager 919 Palm Street San Luis Obispo, CA 93401 aramos@slocity.org wbanker@slocity.org CityClerk@slocity.org Acolunga@slocity.org Subject: Brough Construction, Inc. / City of San Luis Obispo Righetti Ranch Parks – Community Park, Specification No. 200054 To the Project Manager, This law firm represents Brough Construction, Inc. (“Brough”) the lowest responsive and responsible bidder for the Righetti Ranch Parks – Community Park, Specification No. 200054 (the “Project”) for the City of San Luis Obispo (the “City”). Brough is in receipt of the untimely bid protest made by Urban Habitat (“Urban”) expressing concerns about Brough’s bid on the Project. Urban’s bid protest is without merit and should be rejected for the following reasons: 1. Brough is the lowest responsive and responsible bidder and should be awarded the contract. 2. Urban failed to timely issue its bid protest. 3. The bids were not required to list out a percentage of the total base bid amount with respect to specialty items. Therefore, Brough’s bid did not deviate nor did Brough gain an advantage either materially or immaterially. I. THE LAW ON BID PROTEST Before addressing the three issues you raised in your email, an understanding of the law on bid protests is important. California law mandates that a public entity must competitively bid public works contracts and award the contract to the lowest responsible bidder that submits a responsive bid. MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368. These requirements are strictly enforced to protect taxpayers by inviting competition, which 2 helps “guard against favoritism, improvidence, extravagance, fraud and corruption,” Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal. 4th 161, 173. These public interests are what is important. Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 908-909. Allowing the disappointed bidder to invalidate the lowest bid on technical violations in hopes of securing the contract at a higher price frustrates these public interests rather than upholding them. Id. So, first we need to remember that when looking at bid protests, if the bid is responsive, and promises to do what the City requested, that is the end of the inquiry. When there is a Bid Protest, a public entity such as the City is limited in what it can look at. The test for responsiveness focuses on the four corners of the bid documents and does not consider information or details outside of the bid and the bid documents. Great West Contractors 187 Cal.App.4th at 1453-54. It is established under California law that bids which substantially conform to a public agency’s request but contain some error or irregularity may be accepted if the error does not affect the amount of the bid or give the applicant an advantage that other bidders did not have. Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1198- 1199. Therefore, bids must be evaluated from a practical, rather than hypothetical, standpoint, giving due consideration to the public interest being served. Ghilotti at 908-909; MCM at 370. These public interests are getting the best price and avoiding favoritism and corruption. Domar at 173. Urban asks the City to ignore the public interest of contracting with the lowest bidder and instead wants the City to waste public funds. Even if there was a minor error, which there is not, the City must award to the lowest bidder. In evaluating the responsiveness of a bid, it is “well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential.” Emphasis added, Valley Crest Landscape, Inc., v. City Council (1996) 41 Cal.App.4th 1432, 14401-41 citing Konica Business Machines U.S.A., Inc. v. Regents of University of California (1988) 206 Cal.App.3d 449, 454 quoting 47 Ops.Cal.Atty.Gen. (1966) 129, 130-31. A variance in a bid, therefore, will only be considered material if it (1) could have affected the total sum of the bid or (2) provided a bidder with a competitive advantage. Otherwise, the variance is inconsequential and waivable. II. URBAN’S BID PROTEST IS UNTIMELY. The bid document entitled “Notice of Bidders” specifies the bid protest timeline as follows: Protests must be filed no later than five working days after either: 1. Bid opening date, 2. Notification of rejected bid. 3 The City opened the Project bids on Thursday, October 23, 2025. A working day excludes weekends and holidays. Therefore, five working days after October 23, 2025 is not October 28 but rather Thursday, October 30, 2025. Urban’s bid protest letter is dated November 6, 2025. This is a full week past the deadline listed in the Notice of Bidders. Therefore Urban’s bid protest letter is untimely and must be rejected by the City. If the City fails to reject the untimely bid protest letter, then the City will not be abiding by the bid requirements and procedures. See MCM; Domar; Ghilloti. In sum, the City should reject Urban’s untimely bid protest letter and proceed to award the Project to Brough. III. SPECIALTY ITEMS DID NOT NEED THE PERCENTAGE OF TOTAL BASE BID AMOUNTS. Urban accuses Brough of failing to follow the bid instructions in Addendum No. 2 for Specification No. 2000054, Section 2-1.33A. One of the items that must be included is “7. Percentage of total base bid amount with your bid… percentage of each item subcontracted must be provided with the bid.” However, this same Addendum No. 2 specifies that the fifth paragraph of Section 5- 1.13A must be replaced, with part of the replacement language reading: Excluding items designated with an “S” on the Bid Item List. “S” indicates specialty items of work. The value of specialty items of work is not included in the calculation. This revision clarifies that specialty items listed in the bid do not need the additional information specifying the line item’s percentage of the total base bid amount. Brough’s base bid contains 118 bid items: 113 non-specialty items that did contain the percentage of the total base bid amount and only 5 specialty items that did not include the percentage of the total base bid amount. Thus, Brough followed the bid specification instructions including the revised specifications in Addendum No. 2. Even if Brough was supposed to include the percentage of the total base bid amount for the 5 specialty items, this is a minor clerical error that does not materially affect Brough’s bid because Brough complied with the requirements for the 113 non-specialty items. The pricing of Brough’s base bid was clear and allowed the City to correctly compare Brough’s bid with other bids. Brough’s base bid clearly listed the cost of each of the 118 bid items, plus the total amount of all 118 bid items in Bough’s base bid. Thus, Brough did not gain either a material or immaterial advantage over another contractor by not including this information for the 5 specialty items. No specialty subcontractor is harmed by Brough’s alleged clerical error because Brough listed the cost of each of the 5 specialty line items. Brough will of course pay the specialty subcontractors in full even though Brough followed the revision to the fifth paragraph of Section 5-1.13A and did not include the percentage of the total base bid amount for each of the 5 4 specialty line items. Furthermore, Brough did not gain an advantage (materially or immaterially) over other bidders by not including the percentage of the total base bid amount for the 5 specialty items. The factual consideration of whether a bidder receives an advantage from a waiver of strict compliance is evaluated in light of the public interest, not from the perspective of disappointed bidder. Judson Pacific–Murphy Corp. v. Durkee (1956) 144 Cal.App.2d 377, 383, “It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal… of the low bidder after the fact [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy.” In sum, the City should reject Urban’s untimely bid protest letter and proceed to award the Project to Brough because Brough followed the requirements listed in the Addendum No. 2 for Specification No. 2000054, Section 2-1.33A. The issues aired by Urban are not true and are therefore not a sufficient reason for the City to reject Brough’s bid. IV. CONCLUSION Thus, for the above reasons, the City should award the contract to Brough as the lowest responsive and responsible bidder. In addition, Brough requests the following: 1. That this letter serves as a protest against the award of the above contract to anyone other than Brough. 2. Mailed notice of all meetings of the awarding authority at which any issues pertaining to the award to the contract are on the agenda for meeting pursuant to Gov. Code § 54954.1 3. That Brough be informed by telephone or fax or email as soon as any staff reports or recommendations concerning any issues pertaining to the award of the contract are available to the public, so that we can immediately inspect those reports or recommendations. 4. The ability to address the awarding authority before or during consideration of any issues pertaining to the award of the contract pursuant to Gov. Code § 54954.3(a). Thank you for your prompt attention to this matter. If you have any questions, please direct them, as well as any communication with this office, to the undersigned. 5 Sincerely, Sumner W. Schwartz, Esq. for Feldman & Associates, Inc. cc: Mark Feldman, Esq. Brough Construction, Inc. Lanak & Hanna, P.C. Charles K. Stec, Esq. ckstec@lanak-hanna.com Enclosed: A Notice to Bidders; and, B Addendum #2. EXHIBIT C Charles K. Stec Attorney at Law ckstec@lanak-hanna.com {2598 23965} 1851 East First Street, Suite 700, Santa Ana, CA 92705 P 714-620-2350 F 714-703-1610 November 14, 2025 VIA E-MAIL AND OVERNIGHT MAIL City of San Luis Obispo Attn: Project Manager 919 Palm Street San Luis Obispo, CA 93401 c/o aramos@slocity.org; wbanker@slocity.org; CityClerk@slocity.org; AColunga@slocity.org RE: URBAN HABITAT’S REPLY IN SUPPORT OF BID PROTEST OF BROUGH CONSTRUCTION, INC.’S BID Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Dear City of San Luis Obispo Project Manager Please accept this letter as Urban Habitat’s (“Urban”) reply to Brough Construction, Inc.’s (“Brough”) November 13, 2025 Response to Bid Protest (“Response”) for the City of San Luis Obispo (the “City”) Righetti Ranch Parks – Community Park, Specification No. 2000054 (“Project”). The purpose of this letter is to correct two inaccuracies in Brough’s response. First, Brough incorrectly calculates that bid protest deadline by ignoring when the bid results were published by the City. Specifically, Brough conflates its bid submission date with the City’s opening of bids date. By definition, the bid opening date is the date when the City publicly opens and reviews the bids submitted on a project, which is often not the date bids are submitted. Here, the City posted the bid results on Friday, October 31, 2025 at 3:58 p.m. constituting both confirmation of the bid opening date and constructive notification of rejected bids to all others. Prior to the bid results being posted bids are sealed and not publicly available. On the first workday following the opening of bids, Monday, November 3, 2025, Urban submitted a records request for the submitted bids which City provided on or about November 5, 2025. In accordance with the Notice to Bidders’ bid protest instructions, the correct deadline to submit a bid protest was November 7, 2025 which is five (5) working days after the October 31, 2025 opening of bids by posting of bid results. Thus, Urban’s November 6, 2025 Bid Protest of Brough was timely submitted by email on November 6, 2025 and by hard copy to City on November 7, 2025. Second, Brough also conflates the Specifications section for calculating its self-performance of work with a different section setting forth the express requirements to list the subcontractors’ percentage of the total base bid amount. The Addendum 2 revision to Specifications, Section 5-1.13A relates only to determining the contractor’s self-performance of work and provides that “The value of specialty items of work is not included in the calculation”. Section 5-1.13A does not relate to, discuss, waive or modify in any way the express requirements of revised Section 2-133A (and codified in Public Contract Code, Section 4104) requiring bidders to submit their subcontractors’ “percentage of the total base bid amount” on the Subcontractor List. Likewise, Brough’s incorrect citation does not change that Specification Section 2-1.33A expressly provides that the “Failure to do so results in a nonresponsive bid.” Therefore, Brough’s apparent misunderstanding of the Specifications does not excuse its failure to comply with the express requirements of Section 2-133A to list its subcontractor’s percentage of work of the base bid amount. File No. 33498 Page 2 {2598 23965} Finally, Brough’s Response attempts to gloss over its failure to follow the express requirements of the specifications as a clerical error. However, Brough fails to address that it gained an unfair advantage since Public Contract Code § 5103 allows a bidder to withdraw its bid when “a mistake was made in filling out a bid” and California courts have reasoned that the ability to withdraw a bid gives a benefit not available to the other bidders which, therefore, could not be corrected by waiving an ‘irregularity’.” See, Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1428; see also, Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1442. When evaluating a bid, a public entity must follow the requirements of the Public Contract Code and any additional requirements it mandates in the bid documents. Poza v. Department of Transp. (1983) 145 Cal.App.3d 269. Because Brough failed to address the unfair advantage resulting from its failure to follow the Project’s specifications, and its bid does not follow the requirements of Public Contract Code, Section 4104, and Specifications, Section 2-1.33A, Brough’s failures cannot be waived by City. Brough’s bid must be rejected by City because Brough failed to list the percentage of the total base bid for work of certain subcontractors performing more than ½ percent of the total base bid as expressly required by Specification Section 2-1.33A. Additionally, this failure provides Brough with an unfair competitive advantage. As a result of Brough’s failure to meet the bid requirements, Urban requests City reject Brough’s bid and award the Project to Urban as the lowest responsive and responsible bidder. Sincerely, Charles K. Stec Attorney at Law of the Firm cc: Via email only Jeffrey L. Brough Brough Construction, Inc. 530 E. Paulding Cir. Suite B Arroyo Grande, CA 93420 jeff@broughconstruction.com EXHIBIT D 1 From:Banker-Hix, Wyatt <wbanker@slocity.org> Sent:Wednesday, November 19, 2025 6:26 PM To:Charles K. Stec; Alan F. Silva; Ramos, Anthony; CityClerk; Colunga-Lopez, Andrea; Kersten, Markie; Dietrick, Christine; Nelson, Brian Cc:Lauren B. Stec; Sumner Schwartz; Floyd, Aaron; Symens, Sadie Subject:RE: RE: Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Good Evening, The City received Urban Habitat’s Bid Protest letter on November 6, 2025, ten working days after the bid opening on October 23, 2025 (per Addendum No. 3). Per the Special Provisions, Page v, bid protests must be submitted no later than five working days after the bid opening date. As such, Urban Habitat’s Bid Protest is untimely and therefore, rejected. Urban Habitat’s November 14, 2025 letter suggests that it had five working days from October 31, 2025 to submit a bid protest because that date allegedly constituted “both confirmation of the bid opening date and constructive notification of rejected bids to all others.” However, the City did not reject Urban’s bid. An award to the lowest bidder does not amount to a rejection of the others. Public Contract Code Section 22038 sets forth the instances in which a public agency may reject bids, none of which have occurred. The City Council will review the award recommendation at the December 2, 2025 meeting, which will include a copy of both Urban Habitat’s Bid Protest, Brough’s response, and Urban’s reply for their awareness. Thank you, Wyatt Banker-Hix, PE Supervising Civil Engineer Public Works 919 Palm Street, San Luis Obispo, CA 93401-3218 T 1-805-295-1609 E wbanker@slocity.org slocity.org From: Charles K. Stec < Sent: Friday, November 14, 2025 4:06 PM To: Alan F. Silva < ; Ramos, Anthony <aramos@slocity.org>; Banker-Hix, Wyatt <wbanker@slocity.org>; CityClerk <CityClerk@slocity.org>; Colunga-Lopez, Andrea <AColunga@slocity.org> Cc: Lauren B. Stec < ; Sumner Schwartz < ; Subject: RE: RE: Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Hello all, 2 Please see attached Reply of Urban Habitat in support of its bid project, in relation to the above-referenced project. In addition, please note that we are providing copy to Brough Construction through its counsel copied on this email. Cordially, CHARLES K. STEC Attorney 1851 East First Street, Suite 700, Santa Ana, CA 92705 Direct 714.451.7919 | Main 714.620.2350 x 307 | Fax 714.703.1610 View Profile | lanak-hanna.com From: Alan F. Silva < Sent: Thursday, November 6, 2025 2:19 PM To: aramos@slocity.org; wbanker@slocity.org; CityClerk@slocity.org; AColunga@slocity.org Cc: Charles K. Stec < ; Lauren B. Stec < ; Subject: RE: Project: Righetti Ranch Parks – Community Park, Specification No. 2000054 Good afternoon, Please take notice of the attached bid protest on behalf of Urban Habitat, in relation to the above-referenced Project. Thank you, ALAN F. SILVA Litigation Assistant 1851 East First Street, Suite 700, Santa Ana, CA 92705 Direct 714.912.8540 | Main 714.620.2350 x 314 | Fax 714.703.1610 lanak-hanna.com