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11/09/2010, B3 - APPEAL OF CITY MANAGER'S AWARD OF CONTRACT REGARDING SEWERLINE REPLACEMENTS 2010-2011, PROJECT 2, S
council jNovember 9,2010 acEnaa nEpopt ,.N. 3 CITY O F SAN LUIS O B I S P O FROM: Jay D. Walter, Director of Public Works I l` Prepared B : Jennifer Lawrence Engineering.______......... ep y Technician III SUBJECT: APPEAL OF CITY MANAGER'S AWARD OF CONTRACT REGARDING SEWERLINE REPLACEMENTS 2010-2011, PROJECT 2, SPECIFICATION NUMBER 90938—AWARD RECOMMENDATION Uphold the City Manager's award of contract to D'Arcy & Harty Construction, Inc. in the amount of$454,246 for the Sewerline Replacements 2010-2011, Project 2, Specification Number 90938 and authorize the City Manager to execute the Agreement. DISCUSSION Background On August 17, 2010, City Council authorized inviting bids for the Sewerline Replacements 2010- 2011, Project 2, Specification Number 90938. (Attachment 1.) Bids were opened on September 15, 2010. After sealed bids are publicly opened, Public Works staff evaluated the bid documents based on three criteria: cost, responsiveness and responsibility. Initially, all bids are reviewed for mathematical errors and ranked from the lowest cost bid to the highest cost bid. The lowest cost bid document is then reviewed for responsiveness. A bid is responsive if it complies with what the bidding instructions demand. (See, e.g., Valley Crest Landscape Inc. v. City Council (1996) 41 Cal.AppAth 1432, 1438.) If a bid is complete and compliant with the bidding instructions, it is then evaluated for responsibility, otherwise the bid is categorized as "non-responsive" and the next lowest bid document is then reviewed. The lowest cost bid that is responsive and supplied by a responsible contractor is recommended for project award. After the bids were opened, Vinciguerra Construction was the apparent low bidder. (Attachment 2). However, staff found Vinciguerra Construction's bid to be non-responsive because it did not include the type of references as required by the project specifications. The second lowest bidder was D'Arcy & Harty Construction, Inc., and its bid was found to be responsive. Thus, on October 19, 2010, the City Manager approved the award of the contract to D'Arcy & Harty Construction, Inc. based on staff findings. (Attachment 3). On October 26, 2010 Vinciguerra Construction submitted an appeal of the award of the contract to D'Arcy & Harty Construction asserting that by rejecting Vinciguerra Construction's bid based on its response to prior similar work experience, the City is actually making a finding that Vinciguerra Construction is not a responsible bidder(Attachment 9). B3-1 Sewerline Replacements 2010-11, Project 2, Spec. No.9093.8-AWARD Page 2 The Responsiveness of Vinciguerra Construction's Bid For a bid to be deemed nonresponsive, the determination of non-responsiveness must be readily ascertainable from the face of the bid. (Great West Contractors, Inc. v. Irvine Unified School District(2010) 187 Cal.AppAth 1425 [later modified].) For the City's Sewer Replacements project, the Notice to Bidders in the Special Provisions required the contractor to provide qualifications and references for five similar Public Works projects using pneumatic pipe bursting, with at least one being completed under contract with a public agency,. (Attachment 4, Page A, Section.8) Based on the face of Vinciguerra Construction's bid, it was deemed non-responsive. The references supplied by Vinciguerra Construction were for trench repairs, water service replacements, raw water and emergency bypasses, and storm drain work and not for sewerline replacements involving pneumatic pipe bursting. Four of the five references provided were for projects with the City,but none of them involved pneumatic pipe bursting. For the remaining reference, based on the description, Public Works determined that pipe bursting was not utilized during construction. (Attachment 5.) By contrast, D'Arcy & Harty Construction's bid listed sewerline replacements (which staff has determined all used the pneumatic pipe bursting technique) in response to the Notice to Bidders, including a project for the City that utilized the pneumatic pipe bursting method. (Attachment 6.) By not responding to the specifications, Vinciguerra Construction failed to demonstrate that it is a responsive bidder. Vinciguerra Construction was notified by letter (Attachment 7) of the City's intent to award to the second low bidder. Vinciguerra Construction responded to the City's letter, but its response still did not provide any evidence that the company had performed sewerline replacements using the pneumatic pipe bursting technique, which was a bid requirement. Instead, Vinciguerra Construction submitted a letter(Attachment 8) that argued that by rejecting its bid based on its response to prior similar work experience, the City is actually making a finding that Vinciguerra Construction is not a responsible bidder without affording Vinciguerra Construction its due process. If a public entity is going to reject a bid because the bidder is not responsible, then the bidder is entitled to a hearing before the public entity makes the final determination that the bidder is not responsible. CiU of Inglewood- L.A. County Civic Center Auth. v. Superior Court (1972) 7 Cal.3d 861, 871.) However, if a public entity is going to reject a bid because it is non-responsive, then no hearing is required before making the determination that a bid is non-responsive. (Taylor Bus Service, Inc. v. San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1342 [holding a determination of non- responsiveness does not require the same due process as a determination of not responsible].) Although Vinciguerra Construction's response letter cites numerous cases, its appeal letter makes clear that it is relying upon two cases to support its position: Great West Contractors, Inc. v. Irvine Unified School District, supra, 187 Cal.App.4th at 1425 and D.H. Williams Construction, Inc. v. Clovis Unified Schoold District(2007) 146 Cal.AppAth 757. Case Analysis Both of the cases relied upon by Vinciguerra Construction are clearly distinguishable from the current situation. Great West Contractors, Inc. v. Irvine Unified School District, supra, 187 Cal.AppAth at 1425 held that the school district incorrectly rejected a bid as non-responsive because the lowest bidder did not accurately respond to question about licensing. D.H. Williams Construction, Inc. v. Clovis Unified School District (2007) 146 Cal.AppAth at 761 found that the school district incorrectly rejected a bid as non-responsive because the contractor had listed B3-2 Sewerline Replacements 2010-11, Project 2, Spec. No. 90938-AWARD Page 3 unlicensed subcontractors on the bid. The key distinction between those two cases and the situation here is that the contractors' bids, on their face, complied with the specifications, whereas, here, Vinciguerra Construction's bid is non-compliant with the specifications on its face. In Great West Contractors, the public entity did not realize that the contractor's bid was inaccurate until it did a background check. With respect to D.H. Williams Construction, Inc., neither state law nor the bid specifications required that the subcontractor be licensed at the time of bid submittal, and thus, its bid technically complied with the specifications. Here, City staff recommended rejecting Vinciguerra Construction's bid solely on the information provided in the bid document, i.e., the bid was non-responsive on its face. (as previously shown in Attachment 5) The non-responsiveness of Vinciguerra Construction's bid is more analogous to M & B Construction v. Yuba County Water Agency(1999) 68 Cal.AppAth 1353. In M&B Construction v. Yuba County Water Agency, the public entity rejected the lowest bid because the contractor did not have the requisite license as specified in bids. Like Vinciguerra Construction, M& B argued that the public entity's rejection of the bid amounted to a determination of responsibility. (Id. at 1361.) By selecting the type of license, the entity "made a pre-bid determination that the public would be better served in terms of quality and economy by letting the project only to licensees with the most appropriate experience." (Ibid.) Here, staff made the same type of pre-bid determination as the water agency by recommending award of the project only to bidders with the most appropriate experience. Sewerline and pipe bursting work can be complex with negative ramifications for failure. An inexperienced contractor could damage or block the sewer pipe which could spill sewage into the creek system or backups into private residences. To gain experience in this type of work could also lead to increased public inconveniences. During this work, long stretches of pipe are present in the roadway prior to being inserted. If the Contractor does not have a smooth and efficient operation, pipeline will be present above ground for longer periods. Vinciguerra Construction did not demonstrate the direct experience with sewerline or pneumatic pipe busting, which in tum, could affect the overall cost of the project, including construction oversight, or its duration and subsequent public inconvenience. The cost of public inconvenience due to a contractor's lack of experience can be recalled from a 2008 contract award for the Senior Center Remodel. The duration of this project was scheduled for 2.5 months but in actuality required nine months to complete. While this was not an essential facility like a sewerline, the users of this facility were impacted. Recommended Award After being notified that they would not be awarded the bid, Vinciguerra Construction appealed the City Manager's award of the contract to D'Arcy & Harty Construction. (Attachment 9) Staff recommends that the contract award be given to the second lowest bidder, D'Arcy & Harty construction, Inc. The five references provided by D'Arcy & Harty Construction, Inc. conform to the material terms of the bid package. They included projects completed for the'City of San Luis Obispo and other municipalities and are projects similar to the work specified for this project. The requirements for a responsive bidder to have references with similar work methods are consistent with the City's past practice for award in similar cases. B3-3 Sewerline Replacements 2010-11, Project 2, Spec. No. 90938-AWARD Page 4 FISCAL IMPACT The sewerline replacement locations are identified in the 2009-11 Financial Plan, Appendix B, page 3-113. These sewerline replacements will be funded from the Wastewater Collection System Improvements Master account. Currently, there is $2,966,722 in the Master Account which is sufficient funding to support the project costs. The City Manager has authorized the transfer of funds to support this project. Financial Plan Reference: 2009-11 Appendix B, Page 3-113 Budget Amount: 2,966,722.00 Construction: $454,246 Bid Estimate: 507,900.00 Construction Contingencies: $75,000 Bid Amount: 454,246.00 Total for Construction: $529,246 Materials Testing: $10,000 Printing $500 Total for other costs: $10,500 Total Cost of Project $5395746 ALTERNATIVES 1. Award the contract to the lowest cost bidder. The City Council could waive this irregularity and authorize the award of contract to the lowest cost bidder. If the City Council is to waive this irregularity, then it must find that the discrepancy did not: 1) affect the amount of the bid; (2) give a bidder an advantage over others (e.g., give a bidder an opportunity to avoid its obligation to perform by withdrawing its bid); (3) act as a potential vehicle for favoritism; (4) influence potential bidders to refrain from bidding; or (5) affect the ability to make bid comparisons. (Ghilotti Constr. Co. v. City of Richmond (1996) 45 Cal.AppAth 897, 906- 909.) Staff does not recommend this option as it will likely generate further protests from other bidders who fully complied with bidding instructions and would result in an award to a bidder that did not demonstrate the specified experience on the face of its bid. Additionally, awarding the contract despite this irregularity would set a precedent for future awards to non-responsive bidders. Staff believes that the rules of competitive bidding require all bidders to compete on the same level and have their bids judged accordingly. 2. Deny the award The Council could choose to reject all bids and direct staff to re-advertise the project. However, further delay in implementing this project may result in increased material and labor costs, and the City could find themselves in the same position after the second bidding. ATTACHMENTS 1. Copy of original report authorizing advertising B3-4 Sewerline Replacements 2010-11, Project 2, Spec. No. 90938-AWARD Page 5 2. Bid Summary 3. Copy of original report authorizing award by City Manager 4. Notice To Bidders 5. Vinciguerra Construction references 6. D'Arcy& Harty Construction references 7. Correspondence to Vinciguerra Construction 8. Vinciguerra Construction Notice of Protest 9. Vinciguerra Construction Notice of Appeal AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE • Special Provisions \\chstore4\Team\Council Agenda Reports\Public Works CAR\2010\CIP\90938 Sewerline Replacements 2010-2011,Proj 2\90938 CAR award- appeal.doc B3-5 - ATTACHMENT council Mminq Dae August 17,2010 j acEn& REpout CITY O F SAN LUIS O B I S P O FROM: Jay D. Walter, Director of Public Works j IDW Prepared By: Jennifer Lawrence, Engineering Technician III SUBJECT: SEWERLINE REPLACEMENTS 2010-11, PROJECT 2, SPECIFICATION NO.90938 RECOMMENDATIONS 1. Approve the plans and specifications for the "Sewerline Replacements 2010-11, Project 2", Specification No. 90938. 2. Authorize staff to advertise for bids and authorize the City Manager to award the contract if the lowest responsible bid is within the Engineer's Estimate of$507,900. DISCUSSION Replacement of wastewater collection pipes is part of an ongoing program to replace aging, deteriorating, or otherwise troublesome sewer infrastructure. This program has several objectives, among them are: 1) Replacing aging,deteriorated,deficient,or otherwise troublesome sewer infrastructure 2) Reducing or eliminating periodic maintenance requirements and emergency repairs 3) Reducing infiltration and inflow of storm water 4) Ensuring uninterrupted sewage flow without health hazard or effluent leakage This project will accomplish these objectives for part of the City wastewater collection system. The scope of this project includes replacing sewerlines at sections of Peach, Santa Rosa and Loomis Streets. The existing sewerlines in these streets are failing due to age and root intrusion. They require high levels of maintenance and are at capacity. The majority of these lines will be replaced and upsized to 8" diameter pipe to better accommodate existing service requirements. The existing 6" sewerline in Peach Street from Johnson to Pepper also requires frequent maintenance, but will be replaced with a new 6"pipe as service requirements for that line are not projected to increase. This project requires an encroachment permit from Caltrans and will advertise for bids once the permit is obtained. CONCURRENCES The Community Development Department has given this project a categorical exemption from environmental review. B3-6 — ATTACHMENT 90938: Sewerline Replacements 2010-11, Project 2 Page 2 FISCAL IMPACT The replacement locations are identified in the 2009-11 Financial Plan, Appendix B,page 3-113. These sewerline replacements will be funded from the Wastewater Collection System Improvements Master account. Currently, there is $3,601,718 in the Master Account which is sufficient funding to support the project costs. Staff recommends transferring funding from the Master Account to the project account at time of contract award, based on construction bid amounts. • I (90938) ;Estimated Project Costs j Construction(Eng>neees Estimate): $507,900 lConstruction Contingencies: $75,000 Total for Construction: $582,900 Materials Testing: $10,000 Miscellaneous (incl printing) $500 Notal for other costs: I $10,500 FTotal Cost of Project _. ____.._...._.._._.._.... $593,400 Master Collect Syst Account (90239) LAvailable Funding: _ $3,601,718 The Wastewater Collection System Improvements Master account has a current available balance of $3.6 million reflecting the 2009-10 available budget carried forward plus the approved 2010-11 budget allocation. It is important to note that a large wastewater collection project approved in 2009-10 with a budget estimate of $1,295,000 is currently projected for construction in mid to late 2010-11 in coordination with the street pavement management plans and associated timelines. Other wastewater collection projects are currently in pre-construction phases including environmental and/or design. Additionally, on July 20, 2010, the City Council approved the plans and specifications for Sewerline Replacements 2010-11, Project 1 with project costs estimated at $675,690. While the $3.6 million appears significant at this point in time, the associated wastewater collection projects will be moving forward to the construction phase soon. ATTACHMENT Vicinity Map AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE Plans and Special Provisions T:\Coundl Agenda Reports\Public Works CAR\2010\tIP\90938 Sewerline Replacements 2010-2011,Proj 2\90938 CAR adv.doc B3-7 N C Z W QEvoir°iiooNmvoio0aW NNN E ENr' 000uoi0000000 y m Q Q H N H H N ' N 0H g W N M o Nim N M N " QH o Q c _ NHH H HH wQ c �HH rHnHHH o _ N O mN O N H w Q > N m N d O Q m U cU 7 amim � 7 m c o m Q p m Y N m m 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ` y 0 0 0 0 0 0 0 0 0 0 0 0 I': dd cadddddddcd m¢ (q c c� � 000C000000 m m a c c m m 0 0 0 0 0 0 U m () r O O N H m 0 0 0 m m C O m E r H H O O O N O O O O O Q O BOLL 'mp CHHNNH t9 � N CN c6 (V ON _O a C cC Om Hm cV C4NC V Q Cc HH HHNH Hw Q N a N Q O H w — NMN MHw O r 71 7 m rL Q I O m U 0 0 0 0 0 0 0 0 0 X 0 0 0 0 0 0 0 0 0 0 0 0 o O o O O O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 w 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 p M m O O G m O O C C 0 0 0 0 N N 0 0 0 0 c c0 0 0 0 0 cN N N O Y1 N m O 0 Cl CI NC0 NN N ENNc00000000 N r A. En n N c0 cOQ QN N NOi N N Q H N ;: N N — H O m " HHH CHH HH m 0 Qwo 3 HHH HH HH M 1% " O m m C a C � Q Q a a m v O K O = 0 - 0 7 ?D O N Y o 0 0 0 0 0 0 0 0 0 0 0 'c ui uid00000000o a a Zci vioouimoocccc a m m O O O O O O O O O N CL, O H d n m O N N m 0 0 m N m m Q 7 r H H m 0 0 O cO o 0 0 N LU N K r H H c0 Nc0 O)NN UI 10 n N N NN W V O J a m �cV HO QO- m :2 W N O C H1z � — l'f C D Cm N a H H H NH w NH H H C7 m mm fb 9 O H H H H H H w > W 7 m g m.LL D m b 0 3 ?WLLQ Q QLLNc/lcnwwfnV1cnp7cqfnfnLLl WPTIT E E j omr �.- oma T o �- A A a' a' F F 50Z w m L+i �u OZ w m aiviZ�g'J QOQ O �_ LtiZ6 LULUQ O ~ C-4U J K V w K C U J K U K Z Z U W m ~~JJ W MNQ y Ff J J4' LN f O. 0 Q Q Q Q f Q Z Q Q Q f Q d: a nmNNg �ya U<) �yygLLI(L CL 0 >. aaZ2w5ma� J = Wa azz w <�M0 JS am 0 0-' w CK Z 0 U O G 0 0 p 0 a XW Z O Q 0 2 Szxx W S U O p N O iO iOQQ(q�W SZOHH ,O� m mQQco � Mz I—i— SS s W S Z O S a. N M z z W W m W}0 CO.)QFQ 7 S t Z Z W W m W}0°QF S 3 ON Y J J 1 1 H> <LU XC J N J J y J J 1 F 1 LUX U N J J c oQQO0(n0t: u Jao cQQOOmO� _ LLJaa mJ FFMMWMz� m2f � r22 0zdam2 0zz `—— C 9010101 `—— m m 7 m CL O D p W D Cdv E a my O s Q a 0 � L c amt ~ 9N c m m V N c� Q i0 m I7 m Ol m m O a a E a pm :M012 w m m � m � � m 'mA m B3-8 N H Z W � O = O V m Q e7 O Q c 0 N IA O O O N N N A C 0 O ¢ a m y a 'm 0 m F J B3-9 � ATTACHMENT 3 cry Of San Luis owspo CITY MANAGER REPORT Final City Manager Approval Approver Name Date Approved,-::] City Administration Michael Codron for kl October 19,2010 Reviewer Routing List Reviewer Name Date Reviewed City Attorney Andrea Visveshwara 10/7/10 City Engineer Barbara Lynch October 11,2010 Finance&Information Technology Debbie Malicoat October 13,2010 October 13, 2010 FROM: Jay D. Walter,Director of Public Works 7(D'W October 11, 2010 PREPARED BY: Jennifer Lawrence, Engineering Technician III SUBJECT: SEWERLINE REPLACEMENTS 2010-2011,PROJECT 2, SPECIFICATION NUMBER 90938 -AWARD RECOMMENDATIONS 1. Award a contract to D'Arcy & Harty Construction, Inc. in the amount of $454,246 for the Sewerline Replacements 2010-2011,Project.2, Specification Number 90938. 2. Approve a transfer of$539,746 from the Wastewater Collection System Improvements Master Account to the project construction account. DISCUSSION On August 17, 2010, City Council authorized inviting bids for the Sewerline Replacements 2010- 2011, Project 2, Specification Number 90938. Bids were opened on September 15, 2010 and Vinciguerra Construction was the apparent low bidder. However; staff is recommending the award of the contract to D'Arcy&Harty Construction, Inc. as the lowest responsive bidder. Background-Staff Requirements to Award After sealed bids are publicly opened, Public Works staff evaluates the bid documents based on three criteria: cost, responsiveness and responsibility. Initially, all bids are reviewed for mathematical errors and ranked from the lowest cost bid to the highest cost bid. The lowest cost bid document is then reviewed for responsiveness. A bid must conform to the material terms of the bid package. Material terms of a bid are those that affect price, quantity, quality, or delivery. A bid is responsive if it complies with what the bidding instructions demand. Staff reviews the lowest cost bid package to verify that all requested items of information are complete, addendums are acknowledged, and all reference information is included and applicable as specified in the bid request. If a bid is complete and compliant with B3-10 �-' ATTACHMENT 3 SEWERLINE REPLACEMENTS 2010-11, PROJECT 2,SPEC NO. 90938-AWARD Page 2 the bidding instructions, it is then evaluated for responsibility; otherwise the bid is categorized as "non-responsive" and the next lowest bid document is then reviewed. Once the lowest cost bid that is responsive has been determined, staff then reviews the contractor's references to determine if the contractor is responsible. The lowest cost bid that is responsive and supplied by a responsible contractor is then recommended for project award. Lowest Responsive Bidder Staff has reviewed the lowest cost bid proposal, which was submitted by Vinciguerra Construction, and found it to be non-responsive. For a bid to be deemed nonresponsive,the determination of non- responsiveness must be readily ascertainable from the face of the bid. (Great West Contractors, Inc. v. Irvine Unified School District (2010) 187 Cal.AppAth 1425 [later modified].) Here, Vinciguerra Construction's bid was deemed non-responsive based solely on the information provided in its bid. The bid documents require the contractor to provide satisfactory evidence showing a minimum of five years experience in installing pipe using the pipe bursting method. Specifically, the bid documents required the contractor to provide qualifications and references for five similar Public Works projects, with at least one being completed under contract with a public agency. The references supplied by Vinciguerra Construction, however, were for trench repairs, water service replacements, raw water and emergency bypasses, and storm drain work and not for sewerline replacements. Additionally, they did not provide reference to any work completed using the pneumatic pipe-bursting method. By not responding to a material term of the bid, Vinciguerra Construction has failed to demonstrate that it is a responsive bidder. The work to be performed is complex, requiring highly skilled labor. An unqualified contractor could damage or block the pipe and risk spillage into the creek system or backups into private residences, which ultimately, drives up the cost of the overall project. Vinciguerra Construction did not demonstrate the direct experience, which in turn, could affect the overall cost of the project. Vinciguerra Construction was notified by letter of the City's intent to award to the second low bidder included in this report as Attachment 5 and Vinciguerra Construction's response is included in this report as Attachment 6. Vinciguerra Construction's response still does not provide the requested information. D'Arcy & Harty Construction, Inc. submitted the lowest cost responsive bid. The five references provided by D'Arcy & Harty Construction, Inc. were projects completed for the City of San Luis Obispo and other municipalities and are projects similar to the work specified for this project. FISCAL IMPACT The sewerline replacement locations are identified in the 2009-11 Financial Plan, Appendix B, page 3-113. These sewerline replacements will be funded from the Wastewater Collection System Improvements Master account. Currently, there is $2,966,722 in the Master Account which is sufficient funding to support the project costs. Staff recommends the transfer of $539,746 from the Wastewater Collection System Improvements Master Account to the project account for construction efforts. B3-11 ATTACHMENT SEWERUNE REPLACEMENTS 2010-11, PROJECT 2,SPEC NO. 90938-AWARD Page 3 Financial Plan Reference: 2009-11 Appendix B, Page 3-113 Budget Amount: 2,966,722.00 Construction: $454,246 Bid Estimate: 507,900.00 Construction Contingencies: $75,000 Bid Amount: 454,246.00 Total for Construction: $529246 Materials Testing: $10,000 Printing $500 Total for other costs: $10,500 Total Cost of Project $5399746 ALTERNATIVE Award the contract to the lowest cost bidder. The City Manager could waive this irregularity and authorize the award of contract to the lowest cost bidder. Staff does not recommend this option as it will likely generate protests from other bidders who fully complied with bidding instructions and would result in an award to a bidder that did not demonstrate the specified experience on the face of its bid. ATTACHMENTS 1. Bid Summary 2. Copy of original report authorizing advertising 3. Budget Amendment Request 4. Contract Agreement,D'Arcy&Harty Construction,Inc. 5. Letter to Vinciguerra Construction: Non-Responsive 6. Vinciguerra Construction Response TACity Manager ReportsTublic Works\2010\CIP\90938 Sewerline Replacements 2010-11,Proj 2\90938 eCM award.doc B3-12 1 l ATTACHMENT 4 CITY OF SAN LUIS OBISPO STATE OF CALIFORNIA NOTICE TO BIDDERS 1. Receipt and Opening of Bids.. A) Notice is hereby given that sealed proposals will be received by the City of San Luis Obispo, in the Public Works Administration Office, 919 Palm Street, 93401, until 3:00 D.m. on September 15, 2010, at which time they will be publicly opened and read aloud,for the construction of the work entitled: Sewerline Replacements 2010-2011, Project 2, Specification No. 90938 B) Any bid received at the Public Works Administration Office after the time and date specified above shall not be considered, and shall be returned to the bidder unopened. C) Bids received via FAX machine shall not be considered. D) Each bid shall be submitted in a sealed envelope plainly marked: Sewerline Replacements 2010-2011, Project 2, Specification No. 90938 2. General Work Description. In general, the project scope consists of upsizing existing sanitary sewer pipelines, replacing existing manholes and reconnecting existing laterals to the new sanitary sewer pipeline as shown on plans. The method for rehabilitation of the existing sanitary sewer pipe shall be the pneumatic pipe bursting. 3. Estimate of Total Construction Cost. $507,900 4. Contract Time. The contract time is hereby established as 40 working days. 5. Liquidated Damages. The fixed liquidated damages amount is hereby established as 500 per day for failure to complete the required work within the contract time allowed. 6. Contractor's License Requirement. The Contractor must possess a valid Class A or C34 Contractor's License at the time of the bid opening. 7. Prevailing Wage Requirements. Bidders are hereby notified that pursuant to Section 1773) of the Labor Code of the State of California, the Department of Industrial Relations,has ascertained the general prevailing hourly wage rates in the locality where this work is to be performed for each craft or type of workman or ' mechanic needed to execute the Contract which will be awarded to the successful bidder. Current wage rates can be obtained from the Division of Labor web site, www.dir.ca.gov/DLSR/PWD/. 8. Contractor Qualifications. The Contractor shall have Public Works experience constructing projects similar to the work specified for this project and must provide satisfactory evidence showing a minimum of five years experience in installing pipe using the pipe bursting method. 1 A B3-13 v ATTACHMENT4 The Contractor shall provide qualifications and references for five similar Public Works projects completed as either the prime or subcontractor. At least one of the five reference projects must have been completed under contract with a public agency. All reference projects shall be completed within the last five years from this project's bid opening date. The Contractor's references will cant' substantial weight in determining responsiveness of bid. Contractor shall provide references with the Bid Proposal at time of bid opening. Forms are provided as part of the Bid Proposal section for Contractor's use. The City will make the final determination as to the acceptability of Contractor's qualifications and reserves the right to reject any bid based solely on submitted references whenever it determines such rejection is in the City's best interest. 9. Securing Bid Documents. A copy of the Plans and Special Provisions may be downloaded, free of charge,from the City's website at: hftp://www.slocity.org/publicworks/bids.aso. A printed copy may be obtained at the office of the City Engineer, 919 Palm Street, San Luis Obispo, CA 93401, by paying a non-refundable fee of 12§A if picked up in person, or by mailing a non-refundable fee of INA to: City of San Luis Obispo, Engineering Division, 919 Palm Street, San Luis Obispo, CA 93401. Request must include Specification Number. CCN inspection videos of the project's existing sewerline were conducted from 2003 to 2010. by the City of San Luis Obispo Utilities Department, Wastewater Division. The Contractor is required to view the inspection videos of the existing sewerlines prior to bid opening. The inspection video DVD is included with the purchase of the Plans and Specifications. The videos may also be viewed, free of charge, through the City's web site at: VVWW.Slocitv.org/publicworks/construction/slo90938.asp Standard Specifications and Engineering Standards referenced in the Special Provisions may be downloaded, free of charge, from the City's website at: http:/hvww.slocitv.org/publicworks/documents asp. A printed copy may be obtained by paying a non-refundable $16.00 fee for both if picked up in person,or a non-refundable ALM fee if mailed to you by the City Engineer's Office. It is the Bidder's responsibility to obtain all issued addenda prior to bid opening. All issued addenda will be available by download at the City's website listed above or at the City Engineer's Office. All Bidders should contact the Project Manager, Jennifer Lawrence at 805/781-7226 or the Public Works Department at 805/781- 7200, prior to bid opening to verify the number of Addenda issued. It is the responsibility of the bidder to verify their contact information is correct on the electronic planholders list located online at: hftp:lhvww.slocity.or-gipublicworks/bids.asp. B B3-14 ATTACHMENT For more information call 805/781-7200. 10. Bids. Bidders shall comply with and agree to all instructions and requirements-'in this notice and in the contract documents. A) All bids must be submitted on the prescribed bid proposal form. B) EACH BID SHALL BE ACCOMPANIED BY A CERTIFIED CHECK, CASHIER'S CHECK OR BIDDER'S BOND MADE PAYABLE TO THE CITY OF SAN LUIS OBISPO FOR AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE AMOUNT OF THE BID, SUCH GUARANTY TO BE FORFEITED SHOULD THE BIDDER TO WHOM THE CONTRACT IS AWARDED FAIL TO ENTER INTO THE CONTRACT. C) The City of San Luis Obispo, California, reserves the right to accept or reject any or all bids or waive any informality in a bid. D) All bids are to be compared on the basis of the City Engineer's estimate of the quantities of work to be done. E) No bid will be accepted from a contractor who has not been licensed in accordance with the provisions of Chapter 9, Division III of Business and Professions Code. F) The award of the contract, if awarded, will be to the lowest and best regular responsible bidder whose proposal complies with the requirements prescribed. Such award, if made, will be made within 60 calendar days after the opening of the proposals. G) As a condition to executing a contract with the City, two bonds each equal to one hundred percent(100%) of the total contract price shall be required per Section 3-1.02 "ContactBonds" of the Standard Specifications. 11 The Contractor may substitute securities for moneys withheld under the contract in accordance with the provisions of the Public Contract Code, Section 10263.. i i C I I B3-15A �J1 ATTACHMENT 5 Contractor References Failure to furnish complete reference information, as specified in this project's Notice to Bidders, shall be cause to reject the bid as nonresponsive. Reference Number 1 — F' - 4- �y Customer Name&Contact Inc vii pb,�p Telephone &Fax Number _l t a Street Address, City, State, Zi ,+_=p-o-nesl Description of services providet oa n oR Pa+rs�'rs .�Pl � Reference Number 2 - Pol bu& c.e Customer Name&Contact Individual Gi,� a� c5ari LAYS Oo Mr, L Ca tS Telephone&Fax Number SV5 -751 71q b =� -ala Street Address, City, State;Zip Code q tq Pc�l m DOb escription of services provided pr3 0 aa5 �Ic r1 &ev% u- P-eQ1 we d4+"YV v,tik .I+--f C4N � aM a.a�ct atred� wv�►c. 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G Ln ) o k O 4 § 0 4C n . � n /§ I $/ \ƒ % \% $ 04 7 k { \ � » a. a k k / § ) ® ; / / £ moo = Eo 25 k2 ) n02500c ° )f § E / 'a(U Z E z . o0 @ ) m / Ed) LL- 6 0 k� ® . � § $ k\ 22 / $ ) I o k ) � < $ \ 2k § 2 } 2f2 ° CL ° m = = \ R ) OL \ n �} } \ } \\ /U LL \ @ / @ � moa _ * 25 $ § � ems , � s- o .� oa � - f \ LO Ek \ \f3 Eo0m 0 . E 2q ] - J ] � & mn = J f } :3 4) Cc = -J - �� k � o - ozo2o § r w § . � � k > ° � ] � « f £R> § i > m Ef# '0(n c \ a < ] 0Q ƒ§ § ) § §] 7@ \ § oua uQI k � � « < 2Q & U- $3-23) ATTACHMENT Contractor References — Failure to furnish complete reference information, as specified in this project's Notice to Bidders, shall be cause to reject the bid as nonresponsive. Reference Number 1 Customer Name&Contact Individual Telephone&Fax Number Street Address, City, State,Zip Code Description of services provided D �S7rWT �✓� T►�ve,�� Cam) `' Reference Number 2 Customer Name&Contact Individual Gl . Telephone&Fax Number o - 6�a Street Address, City, State,Zip Code i+_ Description of services provided IC, AZ ^� ��� biwq . CO Reference Number 3 Customer Name&Contact Individual _ Telephone&Fax Number Street Address,City, State,Zip Code i Description of services provided Char - �0�- 10-00C 1 i Proposal Form-g=1 W-24 —' ATTACHMENT s Reference Number 4 Customer Name&Contact Individual Telephone& Fax Number j Street Address, City, State,Zip Code 161 Description of services provided MC Reference Number 5 Customer Name&Contact Individual t wkr►a lS�ICT Telephone&Fax Number f Street Address, City, State,Zip Code Description of services provided I f I I � I t I Proposal Form—g-2 B3'25! ATTACHMENT 7 -- IIIIIIIIIIII�������IIIIIIIIIIIIII� 111 6"city o, san lui s OBI >� spo 919 Palm Street-San Luis Obispo,CA 93401 September 22,2010 Vinciguerra Construction PO Box 3423 Pismo Beach, CA 93448 Dear Mr. Vinciguerra, On September 15, 2010, bids were opened for the "Sewerline Replacements 2010-2011, Project 2, Specification Number 90938" project. Staff has reviewed the bids for this project and is recommending that the bid from Vinciguerra Construction be rejected as nonresponsive because the references submitted with the bid did not meet the requirements stated on the Contractor Qualifications, Proposal Fom--G. Specifically, the references i provided are not.of similar work and do not demonstrate Vinciguerra Construction's.ability to install sewerline using the pneumatic pipe bursting. You have the opportunity to comment upon this recommendation prior to award of the contract to the second low bidder. Vinciguerra Construction may submit written material to the City explaining why its bid should be considered responsive no later than 5:00 PM, Wednesday September 29, 2010. If submitted, the written material will be included in the award recommendation report to the City Manager. The City Manager will make a decision following the review of the report, including any material Vinciguerra Construction may submit, and you will be notified of that decision. If you have any questions regarding this matter, please contact Jennifer Lawrence at (805) 781-7226. Sincerely, MATT HORN ASSISTANT CITY ENGINEER Jennifer Lawrence Engineering Technician III I 1Me[g , 9221 O=PllqemkaPozuvePrgedsl5eweAS0938 sewerllne Replacements 20142011 Prof 2LD0cumemsl3-pre=nsWCgcn m { B3-26" IIIIIIIIIIIIIIIIII IIIIIIIII ATTACHMENT 7 Iftal IIIIII IIIIIII city of san tui ®B ISP• 919 Palm Street-San Luis Obispo, CA 93401 October 13, 2010 Atkinson, Andelson, Loyal, Ruud & Romo Attn: Michael Cable 12800 Center Court Drive, Suite 300 Cerritos, CA 90703-9364 Mr. Cable, The City has received your letter dated September 29, 2010, on behalf of Vinciguerra Construction regarding its responsiveness to the request for bids for Project Specification No. 90938. We will include your response in the documents to be considered by the City Manager in the award of the contract. If you have any further questions, please contact Andrea Visveshwara with the City Attorney's Office at(805) 781-7140. Please notify Vinciguerra Construction of this information and all future information will be forwarded to your office until future direction is received. Sincerely, BARBARA LYNCH CITY ENGINEER Jennifer Lawrence Engineering Technician III G.iPmjectslCIPIAWvePmjects\Sewerl90938 Sewerline Replacements 2010-2011 Proi 21 0ocumentslS CorrespondencM90938 Vinciguerra 10.13.10.doc B3-27 �IIIIIIIIIIIIIIIIII IIIIIIIII �/ ATTACHMENT 7 IIIIIINk&CItY of Sart Luis 919 Palm Street-San Luis Obispo, CA 93401 October 20, 2010 Atkinson, Andelson, Loya, Ruud & Romo Attn: Michael Cable 1 2800 Center court Drive, Suite 300 Cerritos, CA 90703-9364 Mr. Cable, On September 15, 2010, bids were opened for the "Sewerline Replacements 2010-2011, Project 2, Specification Number 90938" project. Staff has reviewed the lowest cost bid proposal, which was submitted by Vinciguerra Construction, and found it to be non- responsive because the references submitted with the bid did not meet the requirements stated on the Contractor Qualifications, Proposal Form-G. Specifically, the references provided are not of similar work and do not demonstrate Vinciguerra Construction's ability to construction sewer.pipe bursting work. On September 22, 2010, Vinciguerra Construction was notified of Staffs recommendation and input on this recommendation was solicited. On September 29, 2010 Vinciguerra Construction submitted a Notice of Protest concerning Staffs recommendation which was included in the Staff Report to award a contract. On October 19, 2010, the City Manager awarded a contract to 2nd low bidder, D'Arcy & Harty Construction, Inc., for the "Sewerline Replacements 2010-2011, Project 2, Specification Number 90938"project. Any entity wishing to appeal this decision may do so by following the City's appeals procedures found in Chapter 1.20, °Appeals Procedure" of the City of San Luis Obispo Municipal Code. The Municipal Code is available on the City's web site at www.slocitv.oraCcitvclerk through the City Clerk's page. A notice of appeal must be submitted to the City Cleric's office located at 990 Palm Street, San Luis Obispo onor before November 1, 2010.. If an appeal is submitted, the item will be placed on a Council agenda and Vinciguerra Construction will be able to present its case to Council. If you have any questions please contact Andrea Visveshwara with the City Attorney's Office at(805) 781-7140. i Sincerely, BARBARALYNCH CITY ENGINEER Jennifer Lawrence Engineering Technician III GiPrO1ectSICffMctivePmleclslSewerl90938 Sewerline Replacements 2010-2011 Pro)21_Dowmentsls-conespondence180938 Vinciguerra 10.20.10.doc W-2K ATTACHMENT ATKINSON, ANDELSON, LOVA, RUUD S ROMO A PROFESSIONAL CORPORATION FRESNO RIVERSIDE (559)225-8700 ATTORNEYS AT LAW 195 1)663-1122 FAX(559)2 25-341 6 FAX(95 1)683-1144 12800 CENTER COURT DRIVE, SURE 300 IRVINE CERRITOS, CALIFORNIA 90703.9364 SACRAMENTO (949)453-4260 (562) 653-3200-(7 1 4) 826-5480 (916)023-1200 FAX C049)453.42262 FAX(9 16)923-1222 PLEASANTON SAN DIEGO (925)227-9200 FAX(562)653-3333 (658)485.9526 FAX(925)227.9202 WWW.AALRR.COM FAX(858)485-0412 OUR FILE NUMBER: September 29, 2010 010e07 80001 VIA FACSIMILE,E-MAIL AND CERTIFIED MAIL RETURNRECEIPT REQUESTED Matt Horn Assistant City Engineer City of San Luis Obispo 919 Palm Street San Luis Obispo, California 93401 Re: Notice of Protest-Vinciguerra Construction Sewerline Replacement 2010-2011,Project 2 City of San Luis Obispo Proiect.Snecification No 90938 Dear Mr. Horn: Please be advised that this law firm represents Vinciguerra Construction; the lowest responsive, responsible bidder for the above-referenced public works contract(the "Contract"). We are writing in response to the letter dated September 22, 2010, in which your office alleges that Vinciguerra Construction was nonresponsive for not providing sufficient references of similar work demonstrating an "ability to install sewedine using the pneumatic pipe bursting" method included in the project specifications. This matter presents a.significant legal issue that is vital to our client and all taxpayers. Specifically, we vigorously protest the City of San Luis Obispo's attempt to reject Vinciguerra Construction's bid as "nonresponsive" to the Notice to Bidders when, in substance, the .real reason for rejection is that the City of San Luis Obispo alleges that Vinciguerra Construction is not a responsible bidder for performing the work. California law is clear that the City of San Luis Obispo cannot make such a rejection. (See Great West Contractors, Inc. v. Irvine Unified School District(2010) 187 Cal.App.4a' 1425; D.H. Williams Construction, Inc. v. Clovis Unified School District(2007) 146 Cal.App.0 757.) After carefully reviewing the project specifications, bid documents, notice to bidders and California law, we conclude the Contract must be awarded to Vinciguerra Construction as the lowest responsive,responsible bidder. 1 I B3-29 ATTACHMENT ATKINSON, ANDELSON, LOYA, RUUD Sc. ROMO Matt Horn September 29, 2010 Page 2 In accordance with the instruction contained in the letter dated September 22, 2010, inter alfa, we hereby provide the following discussion: Vinciguerra Construction's Bid is Responsive Based on the above, the Contract must be awarded to Vinciguerra Construction as the lowest responsive, responsible bidder. There are no legitimate grounds for lawfully concluding Vinciguerra Construction's bid was non-responsive. As explained in D.H Williams Construction, Inc. V. Clovis Unified School District, a determination that a bid is nonresponsive is unusual and not based on disputed facts nor involves an exercise of agency discretion. (See D.H. Williams Construction, Inc.,supra, 146 Cal.App.0 at 765 (citing Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1342-1343).) Moreover, as stated in Ghilotti Construction-Co. v. City of Richmond: "`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 a bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential. [Citations.]"' (See Ghilotti Construction Co. v. City of Richmond, 45 Cal.App.4th 897, 900(citing 47 Ops.Cal.Atty.Gen. 129, 130 (1966)).) The foregoing position is also supported by Menefee v. County of Fresno, in which the California Court of Appeal held the lowest bidder (who failed to sign a form included in its bid package) was a responsive, responsible bidder despite the absence of the signature. (See Menefee v. County of Fresno, 163 Cal.App.3d 1175.) Therein,the Court stated: "the real issue is whether the contractor would have been liable on the bond if they had attempted to back out of their bid after it had been accepted by the board. If the contractor would be able to avoid forfeiture of the bond after the bid is accepted, then the deficiency of the bid would have given them an unfair advantage over other bidders and would ,render the 'bid invalid." (Menefee, supra, 163 Cal.App.3d at 1178-1179.) Vinciguerra Construction's bid substantially conforms to the call for bids=and .there was absolutely no deviation that impacted the amount of any of the other bids or any of the other bidding contractors. Vinciguerra Construction is a Responsible Bidder Although the rejection letter dated September 22, 2010, states rejection on the grounds that Vinciguerra Construction's bid is nonresponsive, the City of San Luis Obispo is actually circumventing the competitive bidding process by labeling Vinciguerra Construction as a nonresponsible bidder. Specifically, the City of San Luis Obispo is attempting to make an s 1 B3-30 A17ACHMENT8 ATKINSON, ANDELSON, LOYA, RuuD & RoMo Matt Horn September 29,2010 Page 3 arbitrary decision that Vinciguerra Construction does not have the ability to install the sewerline (i.e., that Vinciguerra Construction is not a responsible bidder) without any.due process hearing as to Vincicguerra Construction being a responsible bidder. The City of San Luis Obispo's rejection of Vinciguerra Construction is clearly inconsistent with California law. As recently as August 31, 2010, the California Court of Appeal again, in Great West Contractors, Inc., discussed this important protection and the requirement that a bidder be afforded a due process hearing on the issue of being responsible. (See Great West Contractors, Inc. v. Irvine Unified School District, supra, 187 Cal.App.4`s at 1425 (citing and relying upon D.H. Williams Construction, Inc. v. Clovis Unified School District(2007) 146 Cal.App.4i°757):) Consequently, the City of SanLuis Obispo's rejection of Vinciguerra Construction's bid based on an arbitrary decision that Vinciguerra Construction is a nonresponsible bidder, is clearly a violation of an established rule of law. As you know, a primary purpose of public bidding is to level the playing field as to all interested contractors. To this end, the California Court of Appeal stated the following: "The purpose of requiring governmental entities to open the contracts process to public bidding is to eliminate favoritism, fraud and corruption; avoid misuse of public funds; and stimulate advantageous market place competition. Because of the potential for abuse arising from deviations from strict adherence to standards which promote these public benefits, the letting of public contracts universally receives close judicial scrutiny and contracts awarded without strict compliance with bidding requirements will be set aside. This preventative approach is applied even where it is certain there was in fact no corruption or adverse effect upon the bidding process, and the deviations would save the entity money. The importance of maintaining integrity in government and the ease with which policy goals underlying the requirement for open competitive bidding may be surreptitiously undercut, mandate strict compliance with bidding requirements." (Konica Business Machines USA., Inc. v. The Regents of the University of California (1988)206 Ca1.App.3d 449, 595 (citations omitted,.emphasis added).) Accordingly, especially in light of Great West Contractors, Inc., D.H. and Williams Construction, Inc.—as well as the fact that the City of San Luis Obispo appears to be all-too- willing to reject Vinciguerra Construction's and pay substantially morefor the same work—we strongly contend such action fatally compromises the integrity of the competitive bidding process by depicting the appearance of favoritism. Vinciguerra Construction is a well-established, duly-licensed contractor that has been in business for more than three decades. Vinciguerra Construction has done work throughout the State of California—and currentlyand has had its principal place of business within the City of San Luis Obispo. There are absolutely no grounds supporting a decision that Vinciguerra Construction is t B3-311 ATTACHMENTS ATKINSON, ANDELSON, LOYA, RUUD & ROMO -' Matt Horn September 29, 2010 Page 4 a nonresponsible bidder—Vinciguerra Construction clearly has the fitness, quality and capacity to perform the work at issue herein. (See City of Inglewood-L.A. County Civic Center Auth. v. Superior Court(1972) 7 CaDd 861, 867.) For the foregoing reasons,we submit this bid protest and respectfully request that the Contract be awarded to Vinciguerra Construction as the lowest responsive, responsible bidder. Please be advised we hereby reserve the right to supplement this bid protest upon receiving further information or documentation concerning this matter. If you have any questions or concerns, please do not hesitate to contact me at your convemience. In fact, we would encourage and appreciate the opportunity to schedule meeting to discuss these issues at a mutually convenient time. Thank you for your anticipated cooperation and we look forward to your response. Very truly yours, ATKINSON, ELSON, LOYA, RUUD &ROMO Michael A. Cable MAC/mac cc: Katie Lichtig, City Manager J. Christine Dietrick, City Attorney Jennifer Lawrence,Engineering Technician III i. i B3-32 ATTACHMENT 9 1(.JVINCIGUERRA CONSTRUCTION Since 1978 LIC 358838 October 26, 2010 San Luis Obispo City Council Attn: City Clerk 990 Palm St. San Luis Obispo, CA 93401 RE: Vinciguerra Construction v. City of San Luis Obispo Sewerline Replacements, 2010-2011, Project 2, Spec 90938 Award of Contract to D'arcy and Harty Construction, Inc. Subject:Notice of Appeal Dear City Council, Please find enclosed Notice of Appeal and evidence supporting our position: Check for$250,payable to the City of San Luis Obispo Notice of Appeal City of San Luis Obispo correspondence dated 9/23/10 Vinciguerra Construction Notice of Protest Dated 9/29/10 City of San Luis Obispo correspondence dated 10/20/10 City of San Luis Obispo Notice of Award to D'arcy and Harty dated 10/19/10 Vinciguerra Construction statement of experience document included with bid D'arcy and Harty references included with bid City of San Luis Obispo Manager Report City of San Luis Obispo Council Agenda Report 7/17/10 If you should have any questions or need any additional information please do not hesitate to contact Wayne Vinciguerra(805) 788—0855. Sincerely, Wa ne inci erra ' Y gu Vinciguerra Construction Enclosures Cc. file Cc.City Attorney P.O.Box 3423•Pismo Beach,CA 93448 (805)788.0855•Fax(805)788.0955 I B3-33 ATTACHMENT 9 v `F ti ktit ".j.�•Y vr��:. N1 ;6, 4 G, i � f Yn � fir• 1 i - 1 , B3-34 iw cu tutu 14;wo 00=014c •,� UtKHLUI: WtAVtF F'WCE IdV by ATTACHMENT Filing Fee; $280.00• Paid_ iDM Received a �� or N/A u offlooSECI APPEAL To THE Crnr COUNCIL 7805/78a-0855 PPS L aj1IT' g770AF rra construction P.O. Box 3423 Pismo Beach, - 93448 Mailing Address and Zip Cade 805/788-0955 Phone Fax Gerald C. weaver Law Corp. P,0. 494, Bass Labe. Ca 93.604 R"rewfiifive's Nat►he Mailing Address and 2 tole Lawyer 559/642-3942 559/642-2707 Title Phone Fax ------------------- -REC7)*N z SIALIECT OPAPP,EAL 1. In ae�nce with the procedures set forth in Title 1, Chapter 1.20 of the San Luis Obispo Municipal Code(COPY attached), I hereby appeal the decision of the: City Manager (Name of Offlaer, Caarmttltee or Comte dettision being appealed) 2. The d210 the decision being appealed was rendered. October 20, 201_0 3. The goolcagono'prEjeclwasenfided• Sewerline Replacements, Project 2 S 2010-2011 Pro 3 pec. No. 90938 4. 1 d1saa;9ed tha ora m w8h the fatlowirLR City stW member. Jennifer Lawrence & Matt Horn Cit En on October 20, 2010 (Stag Member's tare and 5. Has ihis matter been the subject of a pteviouS appeal? ff so,when was it heard and by whom i No 7appeoindudev*ad EASON FOR APPEAL • i Iry> aetiorr/s you are aPpn+9` d�yau believe the C�na1 shouts consider your you have that;supporg your appeal. You may attach pia E s farm cxaieww an the otherside I Page 1 of 3 1 I B3-35 +ur <u cv+a lY.VO �o�ov/ • r UtKHLLI; WtHVth NHUt bd/ny ATTACHMENT Wm Fy tract to 2nd lowest monetary bidder invalid as in Public Contract Code Section 1102 as appellant was sponsible bidder. Award violated the rules imposed reme Court in City of Inglewood-Los Angeles County v. Superior Court (1972) 7 Cal. 3d 861 which . � Serevent award to higher monetary bidder even if City deems that bidder mor experienced that other bidder. 17*'Son lug ObhW Cliy C6mdl values p4b4q perticipaGlan in loci Ouvemrrtent . 'e tq=Of JwOtoeinent Hoi�evar,,+dme to mai cosh as ' ca n►Af an . iriC3ed3n�:piiblbc riotiftcagp •ad e. 'wiu' ' P +�qr fa+ol '�utbgod xo �Ilna s rid PP! f p Uip tga �. . bhicir:taelataepa ,. 1Wvr *1D eldse.sn app9sl c�pnies teiitTi. i�r sPP tar#vRW 45 �m � g thjs 1b►3g�Y'aohu ,wI be: K aftkeexad•�e'your' ?wI win b0d'baetheaunc . Y . iotyaau.. Pub�o;Nearfig,anct to be'prep8fest.ba►rislce ltaeu. .* sS& 'Yourtea�ryr Is ffmWto 10 minudsb. A tAMLURNORMAINe t tae g m"W under cey*b and um suit nea�tD o ee,•Jroe M tsubm r mnces:<dybafeR6yota yrui ragtag:, mtiRfiitj�tExe. , :.fid two if yur m�4mst fb"jw&n once is ra�i+ied:' C�e#k• a*rlt�appew;is:t� ewdfmthe,p tpe Qraetnay sof be b�' t inquest for•canoe, S�ibsr� ►a rut fnr auBA�ie.. idol i f amara s tit t�ta4�1Ae gr ,`. is,al the:cl>saei t c trig CRY 0 �` e ' sends 4p foti ,teImp . I& t) esstlfa.ly'CAtntef/• . eo�ne : Iyl�p +s:wT.ao. .a ;tou. tjTooabows4neye ar►+e�pedA.�et�r.3?34'Io�remlmle�nemaVar�a��graf�lorCq�aiial.egd6riseryb�... Ttft beads bmaby aawn*WW'or a= C1tyAftw=W Wow Lbhm COV Ctwh(ayftq Pap 2 cf 3 eros B3-36 lnizu znln 4:12b n5yb4: v GERALDC WEAVEF PAGE 94/09 — ATTACHMENTS GERALD C. WEAVER POST OFFiCF BOX 494 A LAW CORPORATION BASS LAKE, CALIPORNIA 93604 GERALDG.WEAVER TELEPHONE; (559)642-3942 FAX: (559)642.1707 October 22,2010 San Luis Obispo City Council Attention: City Clerk 990 Palm Street Sat Luis Obispo,CA 93401 Re: Vkr-iguerM Constivct ion v. City of San Loris Obispo Sewerline Replacmen s,2010-2011.,project 29 Specification No. 90938 Subject:Award of Contract to D'arcy and Harty Construction,inc. 1300 Carroll Avenue San Francisco,CA 94124 Dear Honorable Council; Enclosed herewith is the Notice of Appeal filed by our client Vinciguerra Construction,together with our clients check in the amount of$250.00 in payment of the appeal fee. We have discussed this matter with Andrea Visveshwara, Assistant City Attorney and she has advised us that the hearing will be set before the City Council on the first meeting to be held after the tiling of this appeal,November 9,2010. The appeal is based on the grounds that award of this contract to D'atcy&Harty Construction,Inc. violated Public Contract Code §1103, which requires the contract to be awarded to the lowest responsible bidder, whose bid is responsive to the notice of bidding,and that the City is prevented from awarding the contrad to a monetary bidder whose monetary bid is$45426.00 more than the bid by our client. Public Contract Code §1103 defines"responsible bidder'as one who bas demonstrated the attribute of 1 # I B3-3741 1e/ZZ/ZU1U 14:0b bbyb4:' 'I/ GERALDC WEAVEF, PAGE 05/09 ATTACHMENT trustworthiness,as well as quality,fitness, capacity and experience to satisfactorily perform the public works contract, In that statute(Section 1 of Statutes 1999,Chapter 972)the legislature specifically found and declared that the establishment by public agencies of a umsifiorm system to evaluate the ability, competency and integrity of builders on public works projects is in the public interest,will result in the construction of public wort®projects of the highest quality for the lowest cost, and is in furtherance of the objectives stated in public CODUMct Code §100,one of which is to ensure full compliance with competitive bidding statutes as a means of protecting the public from misuse of public funds(Public Contract Code§100(b)), On September 22,2010 Matt Horn,Assistant City Engineer, by Jennifer Lawrence,engineering Ubehnician III, sent our client a letter stating that the staff was recommending that our client's bid be rejectcd as"non-responsive"because the references submitted with the bid did not meet the requirements stated on the Contractor Qualifications Proposal Form-G. Specifically, she stated that the references provided are not of similar work and do not demonstrate that our client has the ability to install a sewer line using the pneumatic pipe bursting method The California courts have bistorically and consistently held in similar cases that a bid is responsive to the call for bids if it "promises to do what the bidding instzucdons demand"D.R Williams Construct;n., Inc v. Clovis Unified School Di ct(2007) 146 Cal-App. 4"757, 53 Cal.Rptr. 306 345. The Williams Court held that the bid could not be rejected as nonresponsive when the bid in fact consftft:i,upon acceptance,a promise to perform all aspects of the public works cow related to petfuximance, and that the issue in such a case Is whether or not the bidder is the lowest EaRgp ble bidder. See also,the recent case of Chat West i i i 2 B3-38 117/LY/L171t7 14:t70 O77b47 / t2LNALUU WtAVth t'ALI- nb/ny ATTACHMENT9 Contractors,Inc. v Ir -fiw Unified School District(2010)WI.3398893 (Cal App. 4'h Dist),to the same effect and holding that a school district's rejection of a low bid was in legal effect for"non-responsibility"rather than for"nos-responsiveness",as the low bidder complied literally with a bid request in promising to perfornn all of the performam requirem eels of the public work and his bid was, therefore,`responsive." C 'offs Anaeles County Civic C Aurth�,,;ftl =96A Courf of - :A &Ies Q umv(1972)7 Cal. 3"'861, 101 Cal: Rptr. 689,the California Supreme Court Field that a contract for a public works;must be awarded to the lowest monetary bidder unless it is found that he is not responsible, which the Court dcSnes as nrrt being ciwffiied to do the particular work under consideration. The Court held that the public agency had no authorityto reject the,low monetary bidder on the basis that the bidder to whom the contract was awarded was a relatively superior bidder or a more qualified bidder or a more experienced bidder; as to allow this would frustinte the Very PMVM of Competitive bidding laws and violate the interest of the public in having Public works projects awarded without favoritism, without excessive costs, and constructed at the lowest price consistent with reasonable quality and expectations of completion. The Citv of ingl d court held there is no basis in law for the agency's application of a`retative superiority concept"and the award cannot stand, The Supreme Court also held that prior to awarding a public contract to other than the lowest monetary bidder,the public agency must notify the low monetary bidder of any evidence reflecting upon his responsibility received front others of adduced as a result of independent investigation and afford the low bidder an opportunity to rebut such adverse evidence and Permit him to present evid=e that he is qualified to perform the contract. ' I i; 3 1 B3-3 ' iG/CC/C13113 14:no ao�ov[ sir GtRALDC WEAVER, PAGE 07/09 ATTACHMENT This aPpea-f is on the fiuther grounds that the City staff failed to notify our client of any evidence reflecting upon its responsibility,which the staff apparently adduced as a result of an independent investigation as to the relative experience or relative supenionty of the bidder to whom the connect was awarded .This violates the ruling and obligations imposed tbereby as eawadated by the California Supreme Court in The City of inewoocl=Los A,naeles County Civic Cetrter suer& The manufachxr er of the specialized equipment required to perforin the small portion of this contract requiring the use of that equipment is prepared to testify that training by the manu6cftffer and supervision of the use of the machine on the job site by the mianu&ctw r will provide all that's necessary to enable the ordinary"Class A" engineering lieel wee,a license that our client bolds,to perform this work without any other experieam in the use of that equipment. We are at least thnnlf'irl to be advised by your City Attorney's office that you do not intend to start construction until such time as this dispute has been resolved at the City Hearing level,or in any subsequent writ of mandate proceeding in the Court to review the legality ofthe determination you make. If you did commence construction and It was later deterrndnied in a writ of mandate proceeding that the award and the contract was invalid as a violanion of the competitive bidding laws,public Contract Code p l 10 would prevent the b%gher bidder awarded the contract froth recovering from the city anything other than that eontra wes costs incurred in the performance of the contract pznior to its cancellation. Section 5110 specifically rrrevezrts nayiri ent to that c�ritractor of any profit on the poitiocr Of he work done by him prior to termination of the contract,if the contract is dctermined to be invalid. In addition, in order to recover Oming at all 1 I i I 4 i j B3-40`. 1 of Gu LUlb 19:Ub 30bb4 7/ .-� IatFlALll(; WtHVtF FJAUE UU/b9 ATTACHMENT for work lord,the coniraetor you have awarded the contract to must establish that he 111 end into the couitiaa based upon a good faith belief that the contract was valid. We are by copy of this letter notifying D°arty and Harty that we believe the law is so clear that it oennot in good faith enter into a contract with the City for performance of the work and,therefore,that if it does so and performs any work and the contract is later determined to be invalid it can recover nothing,not even the costs incurred for work performed,and cam never under any circumstances recover any profit on that work (Public Contract code §5110(axI)and§5110(b). In addition,the City would be liable to our client for damages consisting of the cost of preparing and siibta(itting the bid,including the premium paid on the bid bond. Swinteiton&Walt=Co v City of �s Anseles County Q ic,Center t�(1974)40 Ca1.App. 3`d 98, 114 Cal.Rptr. 834; and any taxpayer ofthe City of San Luis Obispo could institute an action to recover from the contractor who was awarded the contract any monies paid to hire if he did not enter the contract in a good faith belief in its validity,or if it was determined that such good faith did exist,to recover any profit made by that contractor on the grounds that it constituted an illegal waste of Public funds due to violation of the competitive bid laws. As one who Inas specialized in public works construction litigation since the late 1960's I believe the nabm of almost any public works construction project such as this will involve various specific construction operations included within the contract's Performance requirements that have not been actually performed by the contractor in the Past but for which the contractor has been"pre-qualified"to perform simply by virtue of the fact that the state has licensed hien as a Class A engineering contractor qualified to i i 5 i B3-41! 1G/LL/LUlU 14:GO 7,704/ 1/ UtKHLLI: WtHVtK j ecwt nyi ey ATTACHMENT Perform the work as a matter of law. Therefore,the agency must have a very substantial reason for denying work to the lowest bidder when as a master of law the State had determined that bidder to be qualified to perform all work within the scope of his license. Lastly,the$250.00 fee imposed by the City for"processing„this appeal is being paid under protest on the grounds that the City=not charge a fee to pmfvtmt a duty that has been in Nsed upon.it by law. In this case that duty is to(1)inform the low monetary bidder of any evidence the City has in its possession reflecting upon that bidders respons&iU'Y'(2)afford him an opportunity to rebut such adverse evidence(3)and Permit him to present evidence that he is qualified to perform the contract City of mood-Los Atteles Coutxty Civic Cent•*a, bority v Superior Court 7 Cal. 3d 861; soma This is not in the nature of an appeal as such. To the contrary, the gt'aw of the hearing and the hoklieg of the hearing by the City is an absolute duty imposed upon the City and we do rmt believe that the City can charge a fee to perform its own duty. Respectfully Submitted Gerald C. Weaver GCW/iaw Enc. c: Vinciguerra-Construction c: D'arcy&Harty Construction,Inc. c: I. Christine Dietrick,City Attorney i 6 1 i B3-42' ATTACHMENT city of san tuts om. S.0o I°Illlllll�i���;l��,�, li�lllll'►�I '��I� IIII IIL l 919 Palm Street—San Luis Obispo, CA 93401 September 22, 2010 Vinciguerra Construction PO Box 3423 Pismo Beach, CA 93448 Dear Mr. Vinciguerra, On September 15, 2010, bidswere opened for the "Sewerline Replacements 2010-2011, Project 2, Specification Number 90938" project. Staff has reviewed the bids for this project and is recommending that the bid from Vinciguerra Construction be rejected as nonresponsive because the references submitted with the bid did not meet the requirements stated on the Contractor Qualifications, Proposal Form—G. Specifically, the references Provided are not of similar work and do not demonstrate Vinciguerra Construction's ability to install sewerline using the pneumatic pipe bursting. You have the opportunity to comment upon this recommendation prior to award of the contract.to the second low bidder. Vinciguerra Construction may submit written material to the City explaining why its bid should be considered responsive no later than 5:00 PMr Wednesday sepfember 29. 2010. if submitted, the written material will be included in the award recommendation report to the City Manager. The City Manager will make a decision following the review of the report, including any material Vinciguerra Construction may submit; and you will be notified of that decision. If you have any questions regarding this matter, please contact Jennifer Lawrence at (805) 781-7226, Sincerely, MATT HORN ASSISTANT CITY ENGINEER Jennifer Lawrence Engineering Technician III i 1'hsWm4%PuWW arks PfaiecMClplAcdvePro)ectslSeweA90938 Sewedlne Replacements 2010.2011 Pro)21 DocumeMs%3-Preccnseuctionagn 1 Vindguarra 9.2z%doc I �'� nnw.nra:cn� nuenRinw• ondou h,�.�„ SJ-43; ATTACHMENT ATKItgSoN, ANDEL.SON, LOYA, R.Ufll? • 7PtO AOPESffi;[GHAL .E'OR;pb. ATJCYtI c � iATTCfigt*SY8,AT L-,k-W qpe,e - :Fk� i asos�c�rEs:xso��o�,B.Uq'6.3pCt r:Ttt66r,6l�lrray to�iaes•+t�tet, Ce�Arsti�dc�i.l�tlia�H,.:'�i-,YA :q. - !'"OF�oe WWWJaRtJtA4C7M ffiW '49e ��.�..Z11'6 d• �;oabay a �T i .�grn AsaWW.;Cjty CSY ufgan This.t)blspo gig za -Ob cafihidas i Ire atl tl�t this law Seltfs? i .eii. ebidic�r;f.�e.above-referenced 'blipvwka 1� • eantt�t(the Ctnzt7. � �'. _ . e to the lettef Si�A .ea 2 2O i 0,,is whneh venting in,aespons :tib. �ittga. Co�sstrt�tiaar was n �' i�wee �� �� ft�z not, 1��'tztit�g suflicYe�t.�. tfa��n "sblli'ey !o.,netall:,se, i�t�a. g 6h� �atilr lii�p�.'_- . ►y est z#"tea"aans.. 'Flus:xpatf p mts 'a.ssgur$ea�it legal. .tTiat to. out alma t; at�d ali .; ptntest the Ci4k of Sari Luis:Ell? ',s'attompt. to Tgj ' ,s bld as U=wspansive" to tho.I$trtiee to Bidders WhM iss ren Edie0dw is that rhe City of fan Lure _. a Vx�iguear� Lala �bFam#e.Taw isle brat �f ! ;or"y reaievvirig_ the projeat law .Ve�oatioas, bid documents, nota.w biddtrs and:Califarrda. , wQ..conclu reepcasive,res . . the C OOt WA =at be%ward to vine �odwa as the po� bie bidder. B3-44 ATTACHMENT ' btbkiet��;;�'fF1U Page _wadom wjt� the bsOucd=.emt WWd.is the utter dated: Sept 6a 2Z.201% we hembypvwde the m'LOWM:&Wuss m IR rig I 4d ora the.above,-the Con ba aW :to vi #; :•qAstn�u' .Wiest zspoihle bidder. 1 ►e to. ( te g! aac7s �Ab$ tOIl'S 'VS�$3�frFCDIT1St�'ea ari G tttgeno disoar �e; x odhbid ed,on di*ftd�an �_ I, Tx �R :a1.Ap Vi57 ' f;att S 2' i BW 3ivicA the V. Skn;Dbp Bat ofd Atxan 1 131:,1342.1.343):) Rafeayer, as:stated 1a GAulow Coulon cep: V...01Y.of'Ric#)to'r#d: Tilt is, . . viel3 e � tF t t�f d a h.sebata�arisll :et ,f©tis°to a jUg-or bids mag'.tlzcnxgh#t trot stray �T aeemTt th-e variance'cmoi Itavt aftetei the mmuo-a ihebid'•�nr ar 1>ei"it not ed dfiler utegeatfal. tr3tatfoAs; '° Pee rCo.. if 4. iso# C'a v. t' r of 45 'Cal, s.4t11:��,9Qo.fry 49 Otas..�a1.i :C}eII; 124, t:�Et n�96f,��7 hngjbg poskion is also suPPOMd .dAMt A v. busiry .©f *esrnc,� in ictr the -'Qun of A held the isn ast bW ,failed so.st°gtr a.fsar it�ii ua 1��'Was a;���Ie bidder tIeap�'tl�es�l5g+ a a£. �.. s W t4.p ... Y91�75s j�•G�'��e e' 1 Ian,the aC3o�sued ' ,he=Wmcim iwa ben Men UWO ao o t rod tf tr y Fid a ,_. su'ithad, n fem.r-fid b�the.k�aar+d. I�°� tat`- r�d lie-rabl�e#a a'�oi� �re o�t�: bod the b"i-t �thm ft.del}uienoy•ef tlrs:Igd Ivo.2 have; ' e�: g@ 4vet aflteradqm .Bidders aiad would reader 'tine ti%d tavati'd.f' •(� LApp.3d at i:I.79-1179,) Vint3igEton Ct7n u n's bid St Abp n o dbvjEgiQA that i�u �' GOOODW W � gall bxdw-mud: a q+� patted the akftW. any of the o*er olds ar ani'o> t _n $Moms. ;�'��atrnII his s ricihje BW�der • iejeQWn I*er dated ftismWr,: 2t?ltl; ' iort. on . ��$ '� cfia�'s• bid. : aosA �e;..f� °C�ty. of. I:i� � is ate �tetinting t,� etntis/e: bIddu� p�� 3� Iabei�g Vittsi•�exare..`� B3-45 ATTACHMENT j4;jK��,?�JYA..,R�.4Y.v�.3{',j.,1�:J L^•!'�IJ �ufl �J'PVJ�JVJ: . '.isom AO-A-ulo iti�ry ttan that.Tie ,does noE:liava:tie . tteka' :o�. gred bie 6iddea*. :to . all# `11 8 tl "; 1 LIIS o.b73pp'9 fCq(CiAIL#h��3IG187731iltfbli iS,C1dYl�J(31 $t sm as.rez t31r2€�i .r�:co As# rastflrsJ lam„ r�ise#tsst�d'tF¢is tl pf 'pn and t3ierggLuremn�t. a 'be ai dire i ss. Y. o0Atbedsono of` ` o 'b.2e. O haat Afdsr�t _ . Uesf.�4'trhraal Tistrzel ,sxpt 1 ,4 + at k �5 it�c# J3sc, �'latrls UraYed �t Cv ;ci 0 .146 : yearly, the Cthy;f?�- z is Q�{s,Rtr'a*;ttn ef' item a$ aur Za#4sbW decision S7irFaxTruoti :i§ aavpai� obic a1t1Y S. vieilaSGts f w.c tbrW$of law Asyo�s ,a�� �of ptxbllo l�is to ia'�el.�p� �?d.�s 4�°s1l mid 00uftadm. To this eni, . `a Gauze e pl.stzl tib: 1bwuig "3'ho., . � of'irq If&t suet`� 1> is to�fva�Itfsrn, i ;agd 'tt pubiio.fsalft end:stirn eomp0n�s� aveid �f. fhe at i.faa abuse boas ;itaoe Beea� 'ft de&cam 1ra� strict adfi . tpwmft.dwse paIr£ beuefk to letting of pngie.vlantrant� ;. moa close lsl scrutiny°:seer east#�at3varxiBd;air:sect eoonpir� qui wts hasets IQe. revenge �iBTB was in:�& bWdfiV,pvms,and . wk;I46 i?•iDl`LI121`DF S�' e4�1'Cp tie c6e woWd:Saw tete entity cY Tu �8iate �vete� �aad the ease. wpb wotc 4840 . t fox oA�t ba'e @iid Pow' . z�ay� be.sump mandate '. rWct l oe i bY# l llle�t5," $dertfRc; 4{1t ,¢''1�aclztties UBL,., Ina, v: 231e ege�#r-of'xJra hrtvet r p pgf : f1J $}2,0 jai Apia 3d �,S 'ttns csitteci;, id ►;l. IY. especially ist light of .T 'es Cptra�tor� s Itis, : -as Well ata t&feet ttiat the: of 9aA DFlL Ol igo� ,ba t �` i ym {;orfstruoli 'e suiT pay an ally awrc fr m eon W s ova eound a¢tien Teti T is a woze lalislae�,.aui llic�ctsed eant�sa#or l t h , fiw> t `#hree deeac Vtetgueeir .t;oaon has dimerlr tto Calif i= -et�d:Owmtly>aad has hail its p4wipw:pace.Of'k °at:fete y Viiia tlia f tj+ama I* apo.. arF atisoluzel no. sxgpordng.a decis"ron the iz�� B3-46 ATTACHMENT Arat�N ia, A-WbEL oN, WYA, Ruud S (tomo Bokh9vt;2010 PW 4 a tto Sl bride -tkmeigu=a CoIIs ,o�u. im to ime. e. 4 �3+ 4°J wd-LA� county n*�. p;. �".1'�rrt{1'9=7�)Z :3d SYl, $b7.) F�t?i ;rss4a subtxit ttt �rvt and y. fiD Vwp=omnad ou as 16 lav est � e bane Awiftt ire he. b x �•� �a 1 bud Pa€vb� Z%r inn ����. ��:s�r s£.Fle�raot�t4-�na�t`�z►eaf +paiate te: Y' m �a zct ctiae aha auat�mft�:c�nve�u`aed�} : ok au£A'3 '8 s fati ecatrp s¢d atl aad iue. vak ward.t .3ttaur . . Very,tinr�Y Y��, Alm" LQYA,RUUD&R . is�ac L ift'06 Chl Y. .. e.1bk ie �avvrsAee �' ��xmtit�i8# B3-47 ATTACHMENT aft Tv Jew EaiC Ate spoor.to, +�-�,_( s�gcliulrflg;tri�Ae9e. � �,�+pro5l�e wnn�s`traner�t�orr;-fie mt} c�lU�t•C�-. " fts 45,4$T67498' T� eaLf i(3 lsp�t i �umrniRect to inrlbtlr 4W dose sd:b dl of it:eer*t s. .7410. ani. vGdae CB<iU a'l evihrYorthb mif(8�8).Ta.1 WN S)WiIn 31—" 86,ar ers�et 61a :ete7a of B3-48 . A7TACHMENT9 - +p:,FyV�Wf�161 A*3 .-An6118Ms LoYai Ruud 9.Ratio ��Y>.MY'.wYYViY��Li1SIYA:Qa ��a7'/W' �7tr�{p ► 'k5; 241:0. hlsgeOpMad fo n th letieb* Reptaom2ttt�.ZOH KWy 0 .. teviai die (uwext t6�id , seas .st srri d by ftKa mrfSti�►£tie��i. a 1 . + rre � refisr,�na submva ► [ttic ,T�f. fp e cu�}rac#ar i taatifi t srts, tarp t froom: ap iha mrm pmlow-am iof' +aitarrv► t'd�r.r�at:tlsrtte to ltncrBu; � � . �ti a�8fi`1 wrap;�rcPls. .> fla a r� r°Z, 2010', Ipgarm Qofi&uffol eras no# d:ot si fPs m6potlerda pR. ltd bV4 OIL&S. r apmt n has OQIMW. :On: $W*mbe A: _vinaf : Vie» stitam eJ a Alotic)a of Pi Owe 04ftemkg atw. Mmmmondation vuaa :.tw*ftma to. awei 1. %intri 6 f5i�obar 't4, 201Q, iia :NJ�r�ager at�x ftded a ct ifre #-to Yw IoW.Udder; 1)*, iyY 6, G�istn�ntha #et: TM 20'10.2011, R*O 2, n. t pF4}ex t: Afty 0* � v+ [yIIytIbJ /�at th7s� ��-dedWanj��rrµy doj-[c��rpPe . fo�rta' vfigthay jay}�Qr')s$,[,ajP]�{�.py�y}'.�l,��ye�, �.LL�/1 k�1 ' "wWiMLII9 .iTle M17.{ WAI' —^:'_T_ --_`.T.9 * Rdt�.. la4tl1 � moi$ $ffim•atnttgh; a gw P4* S ► n ar.b I 1. O iiia tf 1 t . Tnk' I �iJtl be ppcea cap.amundl.spa .arici 1 �tit{ ui be able ci .its.:�a&e to. v tOL LOW e-li ; �tQris 1oae�� rea u�tiu w"�r tbe�,Git�,d� ' r amrrsr . - +ctaa trr �oz�ai��:e��pm,,,mnme�,.�raeonr+a 'm.�p.'tanoo !H/ 8 3eb Sb1 PIS BE,Itte�fi9� :fi�B Iy B3-49 ATTACHMENT - �I�IIII I�Id��l►I . . City OB Public Works Department• 919 Palm Street • San Luis Obispo, CA 93401-3218 10-19-2010 Darcy&Harty Construction,Inc. Attm.Michael Darcy 1300 Carroll Avenue San Francisco, CA 94124 Subject: Sewerline Replacements.2010-20119.Project 2 SpedfiCation No. 90038.453 Dear Mr.Darcy, The City of San Luis Obispo is pleased to award our "Sewerline:Replacements 201Q-201>E •ed tot 2 S y company the contract for the a .anopnt not to exceed $ X54 4&00 3 Peon No. 909M.953", in the Enclosed .are .the 2 original approved.by the City Manager on October 19,2010. gruel agreements for your signature. Upon execution of*the agreement:,we will mail you a copy for your files. I would like to call your attention to the-City insurance policies mast be endorsed to name as "Additional blas pests. Note: Insurance Lois _Obispo, its elective boards, o arch: The City:of San l5cers> agents and any subcontractors is the performance of work for the City of.San.16h.Ob o", must be sent.with insurance certificates A Copies of sueh:endorsemeats .Msu"Ole �Pany must wing.the required levels of coverage. The parry i rating of at VII or better,.in accordance with the The Best listing Guide. Please provide the City at least 30 days prior notice of any reduction or cancellatioa:of insurance coverage. The City of San Luis Obispo requires(contractors or limits to have a business tax cxrtificate. IfP8°' )doi>3g work wi#irin the city Ci you do not.have a tax the Pinnace 1. at('805)781-7134. f tate,please contact The Finance DePent will also need your .Federal Tax Identification,Number'before payments.can.-he. processed.to your company. This is standard compliance With-Federal U.S. regulations.. You can contact the City ,to.allow (805)781-7135 to provide your taxi &-M .ationDeP nt tt at fihe Gdy Of San{uis Obispo is committed to Include-the disabled in all of-its services,programactiv(tlas._ .Tefewmafgteaticns b'evtce forthe D98f($95:]81 X410: B3-50 . _ ATTACHMENT Davy Harty Construction,Inc. Page Two Pleaseretu n the signed contract,.required insurance certificates and.endomemmts,and payment and performance bonds within eight(8)days,not including Saturdays,.Sundays,or legal holidays,to the address below. The City looks forward to working With you. If you have any questions,please call Jennifer Lawrence,ProjectMat(805)7$1-7226 or µ ."1��a�w, cra��ocity orQ or you may contact me at(805)781-70:57 or u+a+Lwn lUC1tV Orb, City of San Luis Obispo Tammy Hanson. 919 Palm Street San Luis Obispo,CA 93401 805/781-7537(fax)- Sincerely, Tammy Hanson ' Public works Department Enclosure: Agreement Q:IAdminiatrat J8.doe num in umme lettemWI0\90938S SO"dine RCPk00M=ft 2010—2011,Project 2- B3-51. .V11`l/1 1(+CGg ATTACHMENT CPPth otor Ref@Cg17C@g Faure to furnish complete reference info�ori, as cause to POW thdi bid as nonresponsive. specified in this project's Notice to Bidders, shall be J Raft, ce.Nu or 1 — y CusfomerName:&Contact Ind al CA4M o otj wig o��a M tefephope&Fax Number 95-)'7g 1--t 14 Str$et,Address, City, State,Trp Code . -"1713- q t q a�*�SfirY.c�t Del n. services provided. o r a- + loto�i�i%►s �i'�outi a.nad path 0 _ ell v 1i drenc 8 . Dole camQ�edee� :. .T,�,Av� a oma, Re> snae N. e�2 - pol w,,tr� Customer hleri�a &:.00 rin Individual Gi;�, a telephone'&F,ax Number ill M `.) �S 8D `7$T-'Ttq.b Street;Address, City, State;Zip Code 7 - a q Ceswption of services.provid01 ed a vlakv, Slav"'ct, oaM , =A-S&O , '"`r 'Gt-C�PirviP.v�4'JCill Ck Nu[ritber 3 .�lq Vel vnfa.�v Ccrsl�rner Narite&Contact Individual :off ism Luis 6b6Wo T,elepftans&-Fax Number Sfieet Add. 7 -7 . ►ess,Vii,State, Zip Code all, Pao 5ir�e./- !Description of servic•,es.pmvided b l Proposal.Form.- g-1 B3-52 n ATTACHMENT 9.' 4 Reference ber4= A1+rlo,nt 5�. FDescndpt6 O&Contact individual Gth-t� of- � l f; at_.. ax Number7T.1_-I t.q City;.SWe,Trp Code q 19 PrUm ervices provided Reference Number 5 — &V& 6 Custdmer.Narrre& Corttact.1ndivi al L*01 -r r. PY�r ter Tetephone&Fax'Number Street Address, City, State, Trp.Code ta8i3"b Cast, Descripborr of services provided 5 v c F Iry w�a k e..'1 ►tee — � hg . b t�os3 ear &1�.N an . 0.&c �c o +iuk�e c1 demenk o� E ,+%i err Lt. PmPOW Forth=-g-2 B3-53 - - ATTACHMENT ` d E LU uj LU a � R o :. a FL CN m c U tY o`� w S U t4 BONN D O Jar O r C d t.f N o c $ c con H r+ N C ^N Z y 'E Q tlt fA p s g. a a a • CO a OLB3-54. ATTACHMENT CL C gog $ O o � � o � � . Fn W •W 3 a d v d �. a CL a � N G N V C r T 0 Ln C5 v a aV a Q O O Uc e pQ U �. SOS C •� t77 • ta 06 a J �l .Q 'j fA 'a :5J a 'a Q _ O S _ 'S .= aJ o ._ aJ o VaJ B if -j c 0 c J � CL a .:a.* AM �.a c) c o� c Z a t3 .- v� Uaa � a' o) cl) vaa� v� � a' o� �i L) a. o) o7 09L N r � ltt rz JS S c C93co �- o � c� ar co Q � o C s" aE E coo E � c�a M o $j ca co � '� � � 3: oc Z cj' 'cow OU. w oO C ago o .. 16L ' a r le, B3-55 ATTACHMENT 4� to ' d d 0. B3-56 ATTACHMENT 9 ci m m e a19L .I _ o 'F g 'Ac- ami ei . On 2z tt. Lo IL Ti N 00 LO 4 yC C U OoSj yV � �xg� o � or U U o �. U � m EXU cg X y E m � o o o °� 2 E c ` a AA? o v co m t7OC tl� U � fA UGC dNZ o UQu� U. U ,- tn 0 C N c KJ m qE en .a? U O 0 �. c to N o Q1 p d N « Na 9, 2 me m.« N $tUcc�o. o LN. y� y .otl � aoiy c � .. IS Eo � .0 W � N �� la � A 6 O a N S a$ V L m U e 3c _ m � E S 2 ac X. 2 Ry atm ' m' p � A F c m m U :r ga o .m 02 t EfZ- o Eo B3-57. y ' ATTACHMENT gg4 LO H s 4g z Lu d t! ELC � W cJi � a 0 In ting QMdf wB Ug � 10 M Y l0 N Ol _ m }} O ^ L � e Q L. CL _. Qtr — � Ix y 'f 5 A IF a cgs .`o A � c �? � ° IM, LCL am " t ro !9 a t B3-58; gg - ATTACHMENT g $C g N c Lp JS Em z � Lr E g S r U G CLQ} m y (3) 4) M Uccl � <O 109 0 0 19 UMNIN 6 to Q�H M oCV �y M CL :N 4f g M N C U C p a . _ a�3 � "' 25. � N..Em � a' Sin Q7 o J a �' d Nff�� tl Z J G d 5 Q 21, B3-59 C y�} v�eeS of ATTACHMENT 9 U A Conbaftyr.References i Failure to famish completq[ kremtb ftrdiaWiti. ;as:specfti'ifr tF s p c lea f`s Nt ce ta' u3ddxs, shat(bA cause to reject the bid as nonresponsive. R 4: Customer Narna�&Qontact Individual . Telephone&Fax Number Street Address, City, State,Zip Code Description of services provided' Reference Number 2 Customer Name&Contact individual Telephone&Fax Number Street Address, City, State,Zip Code Description of services provided , A a I i &IIII) Referen Number 3 Customer None&Contact Indigidual Lt Telephone&Fax Number ASO Street Address,Zity, State,Zip Code Description-of services provided �r 0-1001C Proposal Form - g-1 B -60 a 0f- ATTACHMENT 9 . j f Reference.Number 4 j Customer Name&.Contact Individual !1 Telephone&Fax Number �. 3 Street Address, City, State, Trp Code / I Description of services provided ' a ,./w . Reference Number S CustomerName:&Contact Individual e 'er Telephone.& Fax Number L' #u Street Address,Cllr, State,Zip Code Description of services provided i 1 : Propria).Form g-2 B -61 .t, ATTACHMENT £9110111 77 I ! O san LUIS OBISPO o La k,Llelg[214 City Administration MSUN ichael I for Id 111 -1 October 1_ 9,?010 RUN IEI City Attorney. IMUNE Andrea.Yisveshwara City Engineer — 10/710 Fin n &mformation TechnoIo Barb---_arc'L"�ch. October_ 11_.2010 gy Debbie"Malicoat October 13 010 October 13,2010 FROM: Jay D. Walter,Director of public Works. 2� October 1 I.2010 PREPARED BY: Jennifer Lawrence,Engineering Technician III SUBJECT': SEWERLINE REPLACEMENTS 2010-2011,PROJECT 2, SPECIFICATION NUMSER 90938 -AWARD RECOMMENDATIONS 1 Award a contract to D' Arty & Harty Construction, Inc. in the amount of$45422.46 for the Sewerline Replacements 2010-2011,Project 21 Specification Number 90938. 2.. Approve a transfer of$539,746 from the Wastewater Collection System Improvements Master Account to the project construction account. DISCUSSION On August 17, 2010, City Council authorized inviting bids for the Sewerline Replacements 2010- 2011, Project 2, Specification Number 90938. Bids were opened on September 15, 2010 and Vin«8uena Constnmction was the apparent low bidder. However, stall is recommending the award of the contrail to D Arcy&Harty Construction,Inc.as the lowest responsive bidder. Background-Staff Requirements to Award After sealed bids are publicly opened, Public Works staff evaluates the bid documents basad on three criteria cost, responsiveness and responsibility. Initially, all bids are reviewed for mathematical errors and ranked from the lowest cost bid to the highest cost bid. The lowest doument is then reviewed for responsicost bid veness. A lid must conform to the material terms of the bid package.:Material terms of a bid are those that . �''price,quarmtity, quality,or delivery. A bid is instructions demand. Staff reviews the lowest cost responsive package,to versify thit Complies at al hat the bidding d it of information.are complete, addendums. are acknowledged, and all,reference infosmationisis i included and applicable as specified in the bid request. If a bid is complete and comnplient with B3-62 -� ATTACHMENT SEWERUNE REPLACEMENTS 2010-11,PROJECT 21.SPEC.No. 9o98a-A 'RD Pie 2_ the bidding instructions, it is then evaluated for responsibility, otherwise the bid is categorized as "non-responsive"and the next lowest bid document is then reviewed. . Once the lowest cost bid that is responsive has been determined, staff .then reviews the contractor's references to determine if the contractor is responsible. The lowest cost'bid that is responsive and supplied by a responsible contractor is then rewinmended for.project award. Lowest Responsive Bidder Staff has reviewed the lowest cost bid proposal, which was submitted by Vinciguerra.Construction, and found it to be'non-responsive.For a bid to be deemed nonresponsive,the determination of non- responsiveness must be readily ascertainable from the face of the bid.(Great We Coraractors,Inc. v. Irvine Un ed School District(2010) 1.87 Cal.App.4th 1425 [later modified).) Here, Vinciguerra Construction's.bid was deemed non-responsive based solely on the information providecl.in.its bid The bid documents require the contractor to provide satisfactory evidence showing a amimmum of five years experience in installing pipe using the pipe bursting method Specifically, the bid documents required the contractor to provide qualifications and references for five.similar Public Works projects, with at least.one being completed under contract with a public agency. The references supplied by Vinciguerra Construction, however, were for trench repairs, water service replacements, raw.water and emergency bypasses, and.storm drain.work and.not for sewerline replaceauents.. Additionally, they did not provide reference to any work completed.using the Pneumatic pipe-bursting method. By not responding to a material term of the hid, Vinciguerra Construction.has failed to demonstrate that it is a responsive bidder. The work,to be performed is complex, requiring highly skilled labor. An unqualified contractor could damage or block the pipe and risk spillage into the creek system_or backups into private residences, which ultimately, drives up the cost .of .the overall project Vinciguerra Cbnstruction did not demonstrate the direct experience,which in tura, could affect the overall cost of the project. Vinciguerra.Construction was notified by letter of the City's intent to award to the second low bidder included in is report athis reportas Attachment 5 and Vinciguerra Construction's response is included in ths Attachment 6. Vinciguerra Constmuction'S response still does not provide the requested informatiorL D'Arcy & Harty Construction; Inc. submitted the lowest cost responsive bid. The five references provided by D'Arcy & Harty Construction, Inc. were projects completed for the City of San Luis Obispo and other municipalities and are projects similar to.the work specified for-this project. FISCAL MWACT The sewerline re placement locations are identified in the 2009-1.1 Financial,:Plan,.Appendix B, page 3-1 l3. .tThese sewerline replacements 'will be funded from the Wastewater Collection . System Improvements Master account Currently, there is $2,966,722.in tie"Maker.Account which is sufficient funding to .support the project costs. Staff recoriimends the transfer of $539,746 f oin�the Wastewater Collection System Improvements Master Account to.the project account for construction efforts. B3-63- ATTACHMENTS $ENfERLINE;tiEPLACEmr 2010-1t, PROJECT 2,S 0KNO. 0.093e-AWARD ' Paget 3 Financial flan Reference: 2009-11 Appendix a page 3-113 Budget Amount: 2,966,722.00 Construction Bid Estimate: 507,900.00 $454;246 construct. Contingences: $75.000 BidAmouat 454,246.00 Total for Construction: — $ Materials Testing: $10,000 Printing $500 Total for other costs: $10;50 Total Cost of Projec t $ %746 ALTERNATIVE Award the contract to dee lowest cost binder. The City Manager could Waive this'irregularity and authorize the award of contract to the lowest cost bidder. Staff does not recommend this option as it ,;a likely generate.protests from other.bidders who fully complied with bidding fton-tions and its bid would result.in:an award to a bidder that did not denionstmte the specified experience on the face of ATTACHMENTS 1. Bid Summary 2. Copy of original report authorizing advertising 3. Budget Amendment Request 4. Contract Agreement,D'Arcy&Harty Construction,Inc. 5. letter to Vinciguerra Construction:Non-Responsive 6. Vinciguerra Construction Response TACitY MaMW Repoft\Public works\2010\CIP\%938.Sewaiine Peplac=ents 2010-11,Prof 2190938 cCNI awar&doc B3-64 ATTACHMENT r Z W U X8.888.$88 ,8888$$ �bid.�"' spy nd 3 Mq. NN O 31 N s�� m a oCS all sad ' $ sss ass o W b E8 ¢8 8888 , xabbS .. gg '�{9�ob. W, `� pNN NNN1'4~W of e it a b o .N JJ Q'a�gg 'y 3aIL bm m B3-65 , ATTACHMENT 8 r Qg$gQ6g66gg$. 8�$c$ag ��tN�pe8y($8pps Coe $' 9 m � � W oa m N$MN�R 82 " a� m o 88S. S 8$S $$A ow 51 B3-66 ATTACHMENT ATTACHMENT 2 cou-n t "', 17,2010 ac en ba RePoRt CITY OF SAN LUIS OBISPO FROM: Jay D. Walter,Director of Public Works L� Prepared By: Jennifer Lawrence,Engineering Technician lII SUBJECT: SEWERLINE REPLACEMENTS 2010-11, PROJECT 21 SPECIFICATION NO.90938 RECOMAM r NDATIONS, 1. Approve the plans and specifications for the "Sewerline Replacements 2010-11,Project 2", Specification No. 90938. 2. Authorize staff to advertise for bids and authorize the City Manager to award the contract if the lowest responsible bid is within•the Engineer's Estimate of$507,900. DISCUSSION Replacement of wastewater collection pipes is part of an ongoing program to replace aging, deteriorating, or otherwise troublesome sewer infrastructure. This program has several objectives, among them are: 1) Replacing aging,deteriorated,deficient,or otherwise troublesome sewer infrastructure 2) Reducing or eliminating periodic maintenance requirements and emergency repairs 3) Reducing infiltration and inflow of storm water 4) Ensuring.uninterrupted sewage flow without health hazard or effluent leakage This Pmj Wt will accomplish these objectives for part of the City wastewater collection,system The scope of this project includes replacing sewerimes at sections of Peach; Santa Rosa and Loomis Streets.The existing sewerlines in these streetsare failing due to age and root intrusion. They require]nigh levels of maintenance and.are at capacity. The majority of these lines will be replaced and upsized to 8" diameter pipe to better accommodate.existing service.requrcment& The existing .6" sewerline in Peach Stteet.from Johnson to Pepper also requires,-fiuquent maintenance,but will be-replaced with a new 6"pipeas service requirementsfor that Fine are not projected to increase. This project requires an encroachment permit from Caltrans and will advertise for bids once the Permit is obtailed. CONCURRENCES The Community Development.Department has liven.this project a categorical exemption from enviropmentai"review. B3-67 AT7ACHMENT9 9.0938 Sd*9ft1llie.Reptacemerds 201.0-11,project 2 Page 2 FISCAL EWPACT The replacement locations are identified in the 2009-11 Financial Plan,Appendix B,.page 3.113. These sewerline replacements will be funded from the Wastewater Collection System Improvements Master account. Currently, there is $3,601,718 in the Master Account which is sufficient funding to support the project costs. Staff recommends transferring funding from the Master Account to the project account at time of contract award, based on construction bid amounts. slineit�" Orr" os?s Construction er's Fstirnate : $507,900 Cor!$tr*WtiDn Co nC�s: $75,000 Total or Construction: $582,900 Materials T $10,000 Miscellaneous incl $SOA Total or other costs: $10,500 Total Costo Pro'ect $593,�fi Master Collect Syvg Account (90239) Available Fundin ; $3,601,718 The Wastewater Collection System Improvements Master account has a current available balance of $3.6 million reflecting the 2009-10 available budget carried forwarsi plus the approved 2010-11 budget allocation. It is important to note that a Targe wastewater collection project approved in 2009-10 with a budget estimate of $1,295,000 is currently projected for construction in mid to late 2010-11 in coordination with the street pavement management plans and associated timelines. Other wastewater collection projects are currently m pre-consuyction phases including enviiuonmental and/or design. Additionally, on July 20, 2010, the City Council approved the plans and specifications for Sewerline Replacements 2010-11,Project 1 with project costs estimated at $675,690. While the $3,6 million ,appears significant at this point in time, the associated wastewater collection projects will be moving forward to the construction phase soon. ATTAC)EINMNT vicinity Map AVAR ABLE FOR REVIEW IN THE COUNCIL OFFICE Plans and Special Provisions T:\Council Agenda ReporMftllc Wor15 CAR120101C[P190938 Sewerllne Replacements 2010-2011,Prof 2\90938 CAR adv.doc B3-68 . — IIIIIG�� C 0 ATTACHMENT 3 . � sin fuu�s a ,spa # 3�gT� NT:14T m Fano Nems wities SEWER 520 REVENUES AND OTHER a WCING SOURCES Asooum Desa1 ori Amerghrrem TOTAL EXPENDITURES AND OTHER FINANCING USES Omt' en Led or No, Pro ct No. Axoimt Aoeotmt AmarMmrent, Phase Am CoUedon Im rov -Master 52055300 90239953 90239520 90239953 SemfUne 201041,Pro 2 539748 52055300 90938953 90938520 90938953 539 748 ------------- TOTAL $ PURPOSE Per r Report dated October S. 2010 transferring$539 748 from the Coilectlon m Im rovemerds Master axount to fund the Seu�edine R8 lacements 2010-11, P'o ect 2 90938 Contratxor. DAM&!#ft Construction Inc. Flead DateDirector of Fhb snate 10/08/10 WAY Un Ufffmr OmEe tonered Date Pap—OL— B3-69 . J ATTACHMENT9 ATTACHMENT 4 CITY OF SAN LUIS OBISPO CALIFORNIA AGREEMENT THIS AGREEMENT,made on this day of .2010,by and between the City of San Luis Obispo., I municipal corporation and charter city,San Luis Obispo County,California owrehudw called the Owner)and D'ARCY&B ARTY.CONSTRUCTION,INC (hereinafter called the Contractor). b ITNESSETR: That the Owner and the Contractor for the consideration stated herein agree as follows: ARTICLE 1, SCOPE OF WORK.' The Contractor shall perform everything required to be performed, shall provide and furnish all of the labor, materials,,necessary tools, expendable equipment, and all utility and traaspmtation services required to complete all the work of construction of SEWERLIn REPLACEMENTS 2010-2011,PROJECT 2,SPECIFICATION NO.90938 in strict accordance with the plans and specifications therefor,including any and all Addenda,adopted by the Owner,in strict compliance with the Contract Documents hereinafter enumerated. It is agreed that said labor,.materials, tools,equipment,and services shall be famished and said work performed and Wicompleted under the direction and supervision .and subject to the approval of the Owner or its.authorized ves. ARTICLE g, COMMACT PRICE: The Owner shall.Pay the Contractor as full consideration for the faithful performanceof this Contract, subject to any additions or deductions, as provided in the Contract Documents, the contract prices as follows: item item Unit of Estimated Item Palce Tota[ Measure qty (in figWres) (ink) 1 Install(l)8"HDPE Sanitary Sewer Pipe(Burst Existing 6") LF 2250 $118.00 $265,500.00 2 Install(1)6"HDPE Sanitary Sewer Pipe(gam Existing 6 ) LF 388 $117.00 $45,396.00 3. Remove(E)and Install(N) Manhole and Stubouts F� 7 $6,000.00 $42,000.00 4 Remove(E)and Install(N) Cleanout EA 1 $2,000.00 $2,000.00 5. Re-establish Live Laterals EA 61 $250.00 $15,250.00 6. Remove(E),Replace/Regrade(E) Lateral. LF .110 $60.00 $6,600.00 7. Sanitary Sewer Bypass LS 1 $8,500.00 $8,500.00 S. Utility Potholing,l?rotection& Relocation Coordination LS 1 $3;000.00 $3,000.00 9. Traffic Control LS I $25,000.00. $25;000.00 10. b4obiiizatim LS1 $35 00.00 . $35;000.00. 11. Comply with Caltrans Permit LS 1 $3,500:00 ' $3,500.00 - 1_ B3-70 ATTACHMENT 9 Ib Item Unit of Fzdmated Item Price . Total No. Measure Quantity' Cm fignm) m) 12. Comply with OSHA LS 1 $2,500.00 $2,500.00 BID TOTAL: $454,24UO Payments are to be made to the Contractor in accordance with and subject to the provisi made a part of this Contract ons embodied is the documents Should any dispute arise respectmg the true value of any work omitted,or of any extra work which the Contractor may be required to do,or respecting the size of anY Payment to the Contractor,during the performance of this Contract,said dispute shall be decided by the Owner and its decision shall be final,and eooclusive. ARTICLE III, COMPONENT.PARTS OF THIS CONTRACT: The Contact consists of the following documents,all of which are as fully a part thereof as if herein set out in full,and if not attached,as if hereto attached; 1. Notice to Bidders and information fbr bidders 2. Standard Specifications,Engineering Standards and Special Provisions. 2. Accepted Proposal. 4. Public Contract code Section 10285.1 Statement and 10162 Questionnaire. 5. Noncollusion Declaration. 6. Plans. 7. List of Subcontractors. 8. Agreement and Beads. 9. Insurance Requirements and Forms. ARTICLE IV. It is further expressly, agreed by and between t*parties hereto that should there be any conflict between the terms of this instrument and the bid or proposal of said Contractor,then this instrument shall:control and nothing herein shall be considered as as acceptance of the said terms of said proposal conflicting herewith. IN WITNESS WHEREOF,the parties to these presmti have hereunto set their hands this year and daze fust above written. CrrY OF SAN LUIS OBISPO, A Municipal Corporation Retic Lichtig,City Manager APPROVED AS TO FORM: CONTRACTOR J.Christine Dietrick INC. D'ARCY & HARTY CONSTRUCTION, City.Attomey Michael D' Ar+cy,Presideaf .2- B3-71 r Because Andrea advised staff and reviewed the staff reports on this matter, and will not act as Council's advisor, there was no resolution included for Council's consideration with this item. I will be advising Council on this matter at tonight's meeting. Accordingly, I will be recommending that Council adopt the attached resolution in the event that that it finds, after hearing the appellant's and staff's presentations and considering any related information, that the award to D'Arcy is appropriate. If Council reaches the opposite conclusion, I will assist them in modifying the resolution. Please red file this e- mail and the attached resolution. Thanks. hard caor. emaEs d COUNCIL ,C CDD DIR Christine Dietrick RED FILE orCITYMGR QFITDm City Attorney °r'MCM °IMS MEETING AGENDA dATTORM �DIR DATE/! c ITEM # $3 cr clnu<roma W&RW c'POl dMPARRS6RECDDi Q nR®UNE oUnLDIR RESOLUTION NO. (2010 Series) d N VMMES DImDIR cr sLoaryNm ircouNaL O'cnY mGR A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS > imm- UPHOLDING THE CITY MANAGER'S AWARD OF CONTRACT REGARDING SEWERLINE REPLACEMENTS 2010-2011, PROJECT 2, SPECIFICATION No. 90938 WHEREAS, on August. 17, 2010, the City Council authorized bids for the Sewerline Replacements 2010-2011, Project 2, Specification No. 90938 ("Project"); and WHEREAS, the Project's specifications required bidders to provide satisfactory evidence showing a minimum of five years experience in installing pipe using the pneumatic pipe bursting method, and references and qualifications for five similar Public Works projects, with at least one project being completed under contract for a public agency; and WHEREAS,bids were opened on September 15, 2010; and WHEREAS, Vinciguerra Construction was the apparent low bidder, but its bid was non-responsive because it failed provide satisfactory evidence showing a minimum of five years experience in installing pipe using the pneumatic pipe bursting method, and references and qualifications for five similar Public Works projects; and WHEREAS, Public Works notified Vinciguerra Construction that its bid was non-responsive for failing provide satisfactory evidence showing a minimum of five years experience in installing pipe using the pneumatic pipe bursting method, and references and qualifications for five similar Public Works projects, and Vinciguerra was given an opportunity to clarify its bid; and WHEREAS, after said notification, Vinciguerra Construction did not provide clarification showing its submittal provided the required references demopnstrating five years experience in installing pipe using the pneumatic pipe bursting method, and references and qualifications for five similar Public Works projects; and RECEIVED NOV 0 9 2010 SLO CITY CLERK 4 WHEREAS, on October 19, 2010, based on the recommendation of Public Works, the City Manager awarded the contract for the Project to D'Arcy & Harty Construction, the second lowest, bidder because Vinciguerra Construction's bid was rejected for being non-responsive and D'Arcy's bid was responsive on its face. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo upholds the City Manager's award of contract to D'Arcy & Harty Construction, Inc., in the amount of $454,246 for the Project, and authorizes the City Manager to execute the contract. Upon motion of seconded by and on the following vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this day of November 2010. Mayor David F. Romero ATTEST: Elaina Cano City Clerk APPROVED AS TO FORM: J. Christine Dietrick City Attorney 11/05/10 16:24 FAX 6506912889 LEONIDOU & ROSIN IM002 RECEIVEDv RED FILE NOV 0 s3 2U1(I MEETING AGENDA LRolvmou OR RoON DATEn)�J�Q ITEM # .PROFESSIONAL CORPORATION �'TT— SLO CITY CLERK ATTORNEYS AT LAW (650)891-2988 777 CUESTA DRIVE SUITE 200 FACSIMILE(650)6912889 MOUNTAIN VIEW,CA 94040 November 5, 2010 had Cott y. ewaft ° OWN& a CDDDM ° CBYMOR a RTDM Via Facsimile,Email &U.S. Mail a nWCH a I=CHIff ° CLERKIOM a POLICECIMF San Luis Obispo City Council a M a PAMARWDIR 990 Palm Street a NRWTTM6S a HRDm COUNCIM San Luis Obispo, CA 93401 ° a0°n °a tTrrMcaMYMd R a CLERK Re: Sewerline Replacements 2010-2011 Project Specification No. 90938.953 Response to Appeal of Award by Vinciguerra Construction Honorable Councilmembers: Our law firm represents D'Arcy & Harty Construction, Inc., the contractor that submitted the lowest responsive bid on the above project: On October 19, 2010,the City awarded the above project to D'Arcy & Harty. We are writing in support of the City's position and in objection to the appeal by Vinciguerra Construction. The City's decision to award the contract to D'Arcy & Harty was reasonable, supported by substantial evidence, and in conformity with applicable law. On its face, the bid submitted by Vinciguerra was nonresponsive. Vinciguerra admits it lacks the important experience that the bidding documents required of all bidders. Vinciguerra failed to submit satisfactory proof of experience as required by the notice to bidders. To waive the experience requirements that the City had established prior to bid, in favor of just one contractor, would introduce favoritism into the bidding process and would violate competitive bidding laws. Moreover, it would be subjecting the City to unnecessary risk. The City should maintain its decision to award the contract to D'Arcy and Harty. 1. Vinciguerra Construction's Bid Was Nonresponsive. "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." Valley Crest Landscape v.. Davis,41 C.A.4u' 1432, 1440 (1996). A public agency may require that bidders comply with requirements that are different from or in addition to those that are mandated by statute. See, e.g.. MCM Construction Inc. v. San Francisco, 66 C.A.4th 359, 374 (1998) (upholding requirement that nonstatutory information be included in subcontractor list about dollar amount of work to be performed by each subcontractor); Valley Crest Landscape Inc. v. Davis, 41 C.A.4th 1432, 1442 (1996) (enforcing nonstatutory requirement that 50% of work be 11/05/10 16:24 FAX 6506912889 LEONIDOU & ROSIN IM003 San Luis Obispo City Council November 5, 2010 Page 2of7 performed by the general contractor);Domar Elec. v City of Los Angeles, 9 Cal. 4th 161 (1994) (upholding rejection of a bid as nonresponsive where the specifications had required bidders to engage in good faith efforts to hire disadvantaged businesses); Beverly Hills v Superior Court 272 C.A.2d 876 (1969) (failure to provide licensing information rendered bid nonresponsive notwithstanding that the information was not required by statute). Failure to comply with such a requirement of the bid documents, including one by definition renders a bid nonresponsive. MCM Construction not required b statute, Inc., 66 C.A.4 at 374. Vinciguerra has failed to demonstrate that it submitted a responsive bid: Even in its "appeal," Vinciguerra has not shown that it provided everything that the bidding documents required. Specifically, Section 8 of the Notice to bidders stated that bidders "must provide satisfactory evidence showing a minimum of five years of experience in installing pipe using the pipe bursting method." In addition, "The Contractor shall provide qualifications and references for five similar Public Works projects completed as either the prime or subcontractor. At least one of the five referenced projects must have been completed under contract with a public agency. All reference projects shall be completed within the last five years from this project's bid opening date." As Mr. Weaver's letter acknowledges, the City found that Vinciguerra had not submitted qualifications and references for five similar projects,with one of those similar jobs being a public works project, and had not provided"satisfactory evidence showing a minimum of five years of experience in installing pipe using the pipe bursting method." Indeed, Mr. Weaver implicitly admits that Vinciguerra had failed to submit the required evidence of experience when he argues that a contractor can be responsible for purposes of the project without having the experience required by the bid documents. (Oct. 22, 2010 Weaver Letter, at p. 4.) Specifically, the projects listed by Vinciguerra in its bid proposal were for trench repairs, water service replacements, raw water and emergency bypasses, and storm drain work. Vinciguerra did not submit proof that it had satisfactorily performed sewer line work, which clearly is different from water line or storm drain construction work, and involves substantially different risks from such work. Nor did.Vinciguerra provide any evidence that it has ever performed pipebursting as a method for replacement of pipelines. On its face,the bid submitted by Vinciguerra was nonresponsive. 2, The City's Actions Are Reasonable And Supported By Substantial Evidence. A public entity's "award of a contract, and all of the acts leading up to the award, are legislative in character." Mike Moore's 24 Ho45 00128838.DOC 11/05/10 16:24 FAX 6506912889 LEONIDOU & ROSIN Z004 San Luis Obispo City Council November 5, 2010 Page 3 of 7 C.A.4th 1294, 1303 (1996). An award of a contract cannot be overturned unless it is entirely unsupported by substantial evidence. Ghilotti Constr. Co. v. Ci of Richmond 45 C.A.4th 897, 903 (1996). "'There is a presumption that the award was supported by substantial evidence, and the complaining party has the burden of proving otherwise." Vinciguerra has not provided any evidence, not to mention substantial evidence, to rebut this presumption. a, The City's Actions In Adopting Experience Requirements Prior To Bid Was A Reasonable Exercise Of Discretion. In M & B Construction v Yuba Co :v Water Agency, 68 C.A.4th 1353, 1361 (1999), the Court of Appeal rejected exactly the same argument as Vinciguerra has asserted. The awarding agency in M&B Construction, like the City here, `made a prebid determination that the public would be better served in terms of quality and economy by letting the project only to licensees with the`most appropriate experience." Id (Emphasis supplied). The Court found that the awarding agency had acted within its discretion, noting that an administrative decision adopting a nonstatutory requirement for bidders is subject to reversal only if it is 'arbitrary, capricious or entirely lacking in evidentiary support." See Taylor Bus Sery vSan Diego Bd. of Educ., 195 C.A3d 1331, 1342 (1987) ("The district or agency has, before soliciting bids, exercised its business and governmental judgment in defining a set of requirements for the work to be done!) Pipebursting can be a difficult method of construction, particularly for an inexperienced contractor. The City,in consultation with its engineers, made a reasonable determination that the contractor performing this work should have a minimum level of experience. That determination will protect the City against botched construction, sewage spills, damage to existing infrastructure such as water or other utility lines, potential liability for bodily injury or property damage, and claims and litigation by an inexperienced contractor who seeks to recoup the expense of its own mistakes. Vinciguerra has not demonstrated that the City's decision to require prior experience with pipebursting was "arbitrary, capricious or entirely lacking in evidentiary support." Significantly, the project attracted at least four bidders. The City has received the benefit of full and vigorous competition, and at the same time through its requirements ensured that the work would be undertaken by a contractor who is experienced and familiar with the type of work to be performed. b. The City Acted Reasonably In Determining That Vinciguerra Construction's Bid Was Not Responsive. The City's staff carefully reviewed the bid submitted by Vinciguerra and determined that it did not conform to the notice to bidders, in that Vinciguerra had not 00128838.DOC 11/05/10 16:25 FAX 6506912889 LEONIDOU & ROSIN Ij005 , San Luis Obispo City Council November 5, 2010 page 4of7 submitted satisfactory evidence showing five years of experience with pipe bursting and completion of five similar public works contracts. The City therefore acted reasonably in rejecting Vinciguerra's bid. A public agency is bound by law to comply with the terms of its notice to bidders. Pozar v. Deet. of Transnortation. 144 CAM 269, 272 (1983). The other bidders complied with the requirements in the solicitation regarding experience. To allow Vinciguerra's bid to be considered, when it did not comply with the basic requirements of the notice to bidders, would in itself constitute favoritism. Ironically, the action that Vinciguerra demands that the City take would undercut the basic principles of fair treatment and an even playing field which competitive bidding is intended to foster. See Konica Business Machines USA, Inc v Reeents of the Univ. of Calif., 206 C.A.3d 449,456_51 (1988). 3. The City Has Provided Vinciguerra Construction With Due Process. The City promptly gave detailed, written notice as to why Vinciguerra's bid was nonresponsive and why Vinciguerra failed to meet the experience requirements that the City had established prior to bid. Vinciguerra has not submitted any evidence demonstrating that it in fact met the experience requirements for the project. It instead has sought to argue that the City should have adopted different standards. Vinciguerra cannot substitute its own opinions for the carefully considered judgment of the City and its engineers. The time for Vinciguerra to have made arguments about the wisdom of experience requirements was before bids were submitted,not after. The City's actions in awarding the contract fully complied with due process. Vinciguerra received written notice as to why its bid was nonresponsive and had an opportunity to submit documents to support its position. This case closely resembles.Taylor Bus Seryy San Diego Bd. of Educ., 195 C.A.3d 1331, 1342 (1987), in that it concerns whether the bid submitted by a contractor complies with the requirements established prior to bid. In such a case, the district or agency has,before soliciting bids, exercised its business and governmental judgment in defining a set of requirements for the work to be done. Responsiveness can be determined from the face of the bid and the bidder at least has some clue at the time of submission that problems might exist ... Given the predetermination of bid specifications, and given the more apparent and less external nature of the factors demonstrating nonresponsiveness, less due process is reasonably required with that determination than when nonresponsibility is declared. Under the circumstances in Taylor, and here, all that the City was required to do was to give notice that a nonresponsive contractor had failed to comply with the 00128838.DOC 11/05/10 16:25 FAX 6506912889 LEONIDOU & ROSIN Q006 San Luis Obispo City Council November 5, 2010 Page 5 of 7 predetermined requirements for the bid. The City did that and satisfied due process. The City is not required to accept evidence and argument, and hold a hearing, on whether the original requirements for the project, established prior to bid, should be waived in favor of a single company. 4. Vinci uerra Construction Is Not A Resuonsible Bidder. In holding a hearing on Vinciguerra's responsibility, the City is not required to waive requirements that it reasonably adopted for the project. Instead, it may decide whether Vinciguerra met the requirements previously adopted. Vinciguerra by its own admission lacks experience in an important aspect of this project, pipebursting. Moreover, Vinciguerra lacks experience with regard to sewer construction generally. Even if the City decides to hold a full due process hearing, Vinciguerra's appeal must be rejected. Any responsibility determination that allegedly is inherent in the City's rejection of Vinciguerra's nonresponsive bid is supported by some substantial evidence and must be upheld. 5. The Opinions Refied Upon by Vinciguerra Construction Are Not AimUcable. Vinciguerra's reliance upon D.H. Williams Construction Inc. v. Clovis Unified School Dist., 146 C.A.4"` 757 (2007) and Great West Contractors _Inc. v. Irvine Unified School Dist., 187 C.A.4th 1425(2010)is mistaken. First,both of these case involved contractors who had submitted bids that on their face fully complied with bidding requirements. In fact, in Great West, the Court discussed at some length the fact that if the contractor had not submitted a bid that literally complied with the bidding requirements, there would be no basis for either a protest or for the Court to require a due process hearing. 187 C.A.4 h at 1456. As the Court noted: Literal noncompliance with a bid request does indeed make a bid nonresponsive. (Emphasis Provided) Id. Second, in both cases upon which Vinciguerra relies, the protesting bidder received neither a due process opportunity to rebut allegations against it nor an actual hearing. Vinciguerra will have received both. Third, in both cases upon which Vinciguerra relies, the awarding agency acted irrationally and out of favoritism. In D H. Williams, the awarding agency imposed a requirement not found in the notice to bidders. In Great West, the agency rejected the low bidder for failing to disclose licenses held by partners, affiliates or officers of the 00128838.DOC 11/05/10 16:25 FAX 6506912889 LEONIDOU & ROSIN Q007 San Luis Obispo City Council November 5,2010 Page 6 of 7 bidder, but did not disqualify the company to which it awarded the contract, which had committed exactly the same error. In contrast, here the City has not acted out of favoritism. Vinciguerra does not allege that it did. Vinciguerra's reliance on Inglewood Los Angeles County Civic Center Auth. v. Superior Court• 7 Cal. 3d 861 (1972) is equally mistaken. In that case, both the contractor awarded the project and the one that filed a protest met the requirements for the project; but the awarding agency selected the company it thought would do a better job. Here, in contrast, the protesting contractor failed to submit a bid that met the pre- determined requirements for the project, and also did not possess the experience that the agency had determined, before bids were received, would be necessary to ensure the successful completion of the project. Finally, Vinciguerra's reference to Section 1103 of the Public Code as having been ,violated" reveals a basic misunderstanding of the applicable law. Section 1103 does not impose any requirements for competitive bidding. It is simply a definition of ,,responsible" for use in competitive bidding statutes that are found in elsewhere in the Public Contract Code. San Luis Obispo is a charter city, and it therefore is not subject to competitive bidding requirements under the Public Contract Code. Piledrivers Local Union.No. 2375 v City of Santa Monica, 151 C. A. 3d 509 (1984). Indeed, the term "lowest responsible bidder" appears to have a different meaning in connection with charter cities than it does under the Public Contract Code: The term "lowest responsible bidder" in city charters has been held to mean the lowest bidder whose offer best responds in quality, fitness, and capacity to the particular requirements of the proposed work; and that where by the use of these terms the council has been invested with discretionary power as to which is the lowest responsible bidder . . . such discretion will not be interfered with by the courts in the absence of direct averments and proof of fraud. R & A Vending Services Inc v City of Los Angeles, 172 C.A.3d 1188, 1193 (1985) (emphasis supplied;upholding refection of a bid that contained inaccuracies). Conclusion. Vinciguerra's bid was nonresponsive. Its bid did not conform to the City's bidding requirements. In addition, Vinciguerra lacks the experience to perform pipebursting,a critical portion of the work. There are good reasons for the.City to require that the contractor performing this job demonstrate requisite experience with this type of work. Improperly performedpipebursting can lead to damaged sewer lines, sewer spills, damage to infrastructure, defective construction, liability to third parties and the public, 00128838.DOC 11/05/10 16:25 FAX 6506912889 LEONIDOU & ROSIN 16008 San Luis Obispo City Council November 5,2010 Page 7 of 7 and litigation. It would be inequitable and an abuse of discretion, after all of the bids have been submitted and opened, to waive experience requirements in favor of a single bidder. Vinciguerra appeal is without merit. D'Arcy & Harty Construction, Inc. submitted a responsive bid and has significant experience with pipe bursting and sewer replacement construction, having successfully completed tens of millions dollars of th similar work for many public agencies. We therefore respectfully request that the City deny Vinciguerra's appeal so that work can commence on this project without delay. Very truly yours *JTTE . U JGL/lk cc: Andrea Visveshwara, Esq. (via email: avisvesh@slocity.org) 00128838.DOC