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HomeMy WebLinkAbout11/13/2018 Item 14, Christen Christian, Kevin From:ericchristen <ericdchristen@gmail.com> Sent:Tuesday, To:Pease, Andy; Christianson, Carlyn; Rivoire, Dan; Gomez, Aaron; Harmon, Heidi Cc:White, Kelly; Dietrick, Christine; CityClerk; Johnson, Derek; Grigsby, Daryl; nwilson@thetribunenews.com; news@ksby.com; letters@newtimesslo.com Subject:Regarding your vote for a union PLA tonight: You are putting Federal Funds at risk. Attachments:Berkley Exemption.pdf; Federal Open Bid Regulation.pdf Importance:High Council Members. Among the myriad of reasons a divisive and discriminatory Project Labor Agreement (PLA) is bad for the City of San Luis Obispo is the one having to do with Federal funding. Contained in the staff report is the following: Paragraph 3.5 (b) and 3.8 Federal funds (Packet Page 361) Attached as exhibit 'G' is the requirement for Davis-Bacon wages. The requirement of Davis-Bacon wages signifies that there will be Federal funding. I have attached the City of Berkley attorney's opinion stating that a project needs to be exempted from that City’s PLA for the inclusion of the 30% local workforce clause or the city could not receive Federal funds. I have also attached the Federal regulation. The proposed PLA for SLO in section 3.5.2 (packet page 406) specifically mentions a goal of 30%, same goal that Berkley uses. My opinion is that of the Berkley city attorney that Federal monies cannot be used or it would be a violation of Federal statute (CFR 200.319 (b)). I did not see this issue addressed in the City presentation. Under Rational For Recommendation by Berkley, "The Applying the CWA to this project would make it ineligible to receive Federal Aid". Should you pursue a PLA on this project we will seek to hold you accountable with regards to federal funding. 1 Set aside this desire to reward your political donors and show that you value all the members of your community equally, not just those with deep pockets. Eric Christen Executive Director Coalition for Fair Employment in Construction www.opencompca.com 2 120 2 CFR Ch. II (1–1–15 Edition) §200.319 (ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit. (2) Since this formula generates an open-ended contract price, a time-and- materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. There- fore, each contract must set a ceiling price that the contractor exceeds at its own risk. Further, the non-Federal en- tity awarding such a contract must as- sert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient meth- ods and effective cost controls. (k) The non-Federal entity alone must be responsible, in accordance with good administrative practice and sound business judgment, for the set- tlement of all contractual and adminis- trative issues arising out of procure- ments. These issues include, but are not limited to, source evaluation, pro- tests, disputes, and claims. These standards do not relieve the non-Fed- eral entity of any contractual respon- sibilities under its contracts. The Fed- eral awarding agency will not sub- stitute its judgment for that of the non-Federal entity unless the matter is primarily a Federal concern. Viola- tions of law will be referred to the local, state, or Federal authority hav- ing proper jurisdiction. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75884, Dec. 19, 2014] §200.319 Competition. (a) All procurement transactions must be conducted in a manner pro- viding full and open competition con- sistent with the standards of this sec- tion. In order to ensure objective con- tractor performance and eliminate un- fair competitive advantage, contrac- tors that develop or draft specifica- tions, requirements, statements of work, or invitations for bids or re- quests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to: (1) Placing unreasonable require- ments on firms in order for them to qualify to do business; (2) Requiring unnecessary experience and excessive bonding; (3) Noncompetitive pricing practices between firms or between affiliated companies; (4) Noncompetitive contracts to con- sultants that are on retainer contracts; (5) Organizational conflicts of inter- est; (6) Specifying only a ‘‘brand name’’ product instead of allowing ‘‘an equal’’ product to be offered and describing the performance or other relevant re- quirements of the procurement; and (7) Any arbitrary action in the pro- curement process. (b) The non-Federal entity must con- duct procurements in a manner that prohibits the use of statutorily or ad- ministratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encour- age geographic preference. Nothing in this section preempts state licensing laws. When contracting for architec- tural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of quali- fied firms, given the nature and size of the project, to compete for the con- tract. (c) The non-Federal entity must have written procedures for procurement transactions. These procedures must ensure that all solicitations: (1) Incorporate a clear and accurate description of the technical require- ments for the material, product, or service to be procured. Such descrip- tion must not, in competitive procure- ments, contain features which unduly restrict competition. The description may include a statement of the quali- tative nature of the material, product or service to be procured and, when necessary, must set forth those min- imum essential characteristics and standards to which it must conform if it is to satisfy its intended use. De- tailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a ‘‘brand name or equivalent’’ description may be used as a means to define the performance VerDate Sep<11>2014 15:35 Jun 04, 2015 Jkt 235005 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Y:\SGML\235005.XXX 235005LHORNE on DSK2VPTVN1PROD with CFR 121 OMB Guidance §200.320 or other salient requirements of pro- curement. The specific features of the named brand which must be met by of- fers must be clearly stated; and (2) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. (d) The non-Federal entity must en- sure that all prequalified lists of per- sons, firms, or products which are used in acquiring goods and services are cur- rent and include enough qualified sources to ensure maximum open and free competition. Also, the non-Federal entity must not preclude potential bid- ders from qualifying during the solici- tation period. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014] §200.320 Methods of procurement to be followed. The non-Federal entity must use one of the following methods of procure- ment. (a) Procurement by micro-purchases. Procurement by micro-purchase is the acquisition of supplies or services, the aggregate dollar amount of which does not exceed the micro-purchase thresh- old (§200.67 Micro-purchase). To the ex- tent practicable, the non-Federal enti- ty must distribute micro-purchases eq- uitably among qualified suppliers. Micro-purchases may be awarded with- out soliciting competitive quotations if the non-Federal entity considers the price to be reasonable. (b) Procurement by small purchase procedures. Small purchase procedures are those relatively simple and infor- mal procurement methods for securing services, supplies, or other property that do not cost more than the Sim- plified Acquisition Threshold. If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources. (c) Procurement by sealed bids (for- mal advertising). Bids are publicly so- licited and a firm fixed price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, con- forming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bid method is the preferred method for procuring construction, if the condi- tions in paragraph (c)(1) of this section apply. (1) In order for sealed bidding to be feasible, the following conditions should be present: (i) A complete, adequate, and real- istic specification or purchase descrip- tion is available; (ii) Two or more responsible bidders are willing and able to compete effec- tively for the business; and (iii) The procurement lends itself to a firm fixed price contract and the selec- tion of the successful bidder can be made principally on the basis of price. (2) If sealed bids are used, the fol- lowing requirements apply: (i) Bids must be solicited from an adequate number of known suppliers, providing them sufficient response time prior to the date set for opening the bids, for state, local, and tribal governments, the invitation for bids must be publically advertised; (ii) The invitation for bids, which will include any specifications and per- tinent attachments, must define the items or services in order for the bidder to properly respond; (iii) All bids will be opened at the time and place prescribed in the invita- tion for bids, and for local and tribal governments, the bids must be opened publicly; (iv) A firm fixed price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transpor- tation cost, and life cycle costs must be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and (v) Any or all bids may be rejected if there is a sound documented reason. (d) Procurement by competitive pro- posals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost- reimbursement type contract is award- ed. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply: VerDate Sep<11>2014 15:35 Jun 04, 2015 Jkt 235005 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Y:\SGML\235005.XXX 235005LHORNE on DSK2VPTVN1PROD with CFR Office of the City Manager 2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: manager@ci.berkeley.ca.us Website: http://www.ci.berkeley.ca.us/manager CONSENT CALENDAR May 24, 2016 To: Honorable Mayor and Members of the City Council From: Dee Williams-Ridley, City Manager Submitted by: Scott Ferris, Director, Department of Parks, Recreation, and Waterfront Subject: Community Workforce Agreement Exemption - James Kenney Seismic Retrofit Project RECOMMENDATION Adopt a Resolution exempting the James Kenney Seismic Retrofit Project, from the City’s Community Workforce Agreement requirements in order to use a federal FEMA grant award of $727,499. FISCAL IMPACTS OF RECOMMENDATION Construction funding is available in allocations from the Measure F Parks Tax Fund; Capital Improvement Fund; and a grant from the Federal Emergency Management Agency (FEMA). Budget Codes: Parks Tax Fund: 450-5850-450.65-70 14CB04.....................................$1,485,240 Capital Improvement Fund: 610-5850-450.65-70 14CB04.......................$600,000 FEMA Grant: 618-5850-450.65-70 14CB04 $727,499 Total Construction Budget $2,812,739 CURRENT SITUATION AND ITS EFFECTS On January 2, 2015, the City received notification of a federal FEMA grant for the James Kenney Seismic Retrofit Project in the amount of $727,499 (FY09 Legislative Pre-Disaster Mitigation Grant #2010-0001, Project #PJ01, FIPS #001-06000, Supplement #2 16-11052- C). This grant is a key funding component of the project, and without this funding, the City would not be able to implement the project. Pursuant to Council Resolution No. 67,111-N.S., the City’s Community Workforce Agreement (CWA) would apply to all City construction projects estimated to exceed $500,000. However, federal regulations prohibit the “local hire” requirements contained in the City’s current CWA, and The Alameda County Building and Construction Trades Council has been advised of this. As a result, Council is being asked to exempt the James Kenney Seismic Retrofit Project from the City’s Community Workforce Agreement requirements in order to use a federal FEMA grant award of $727,499.Project.1 1 Current CWA local workforce-hiring goal is 30% of total craft hours worked, on a craft by craft basis.” Section 200.319 “Competition” of the Electronic Code of Federal Regulations states “The non-Federal entity Community Workforce Agreement Exemption - CONSENT CALENDAR James Kenney Seismic Retrofit Project May 24, 2016 Page 2 BACKGROUND The purpose of the Community Workforce Agreement (CWA) with the Alameda County Building and Construction Trades Council is to support the efforts of the City to increase employment opportunities for workers who reside in Berkeley, to help increase training and employment opportunities for the City's students in the construction trades through apprenticeship and pre-apprentice programs as the students graduate from the City's schools, to promote efficiency of construction operations performed for and within the City of Berkeley and to provide for peaceful settlement of labor disputes and grievances without strikes or lockouts, thus promoting the public interest in assuring the timely and economical completion of the projects. The CWA was originally approved on January 18, 2011 for a term of three years, then extended to January 18, 2015. Council Resolution No. 67,111 which was adopted June 23, 2015, authorized the City Manager to further extend the term of the current CWA for three years from the new effective date of June 30, 2015. The current CWA shall expire June 30, 2018. The James Kenney Community Center currently houses day care and after-school children’s programs, as well as public events during evenings and on weekends. The building is also a City-designated Care and Shelter facility in the event of a disaster or emergency. The James Kenney Seismic Retrofit Project is part of the City’s Local Hazard Mitigation Plan to rehabilitate care and shelter facilities located throughout the City. The James Kenney Community Center Seismic Retrofit Project includes seismic strengthening of the Community Center, which includes exterior framing, sheathing, and siding; as well as new windows and doors; exterior lighting; and ADA accessibility upgrades. RATIONALE FOR RECOMMENDATION Applying the City’s Community Workforce Agreement to this Project would render it ineligible to receive $727,499 in Federal aid, which would effectively cancel the project at this time. ALTERNATIVE ACTIONS CONSIDERED No alternative action is considered. The Project has already gone through a sequence of activities necessary for project implementation, including applying for grant funding; planning; field investigations; surveys; and the completion of the design and engineering cost estimates. CONTACT PERSON Paul Kaushal, Supervising Civil Engineer, 510-981-6396 Taylor Lancelot, Assistant Civil Engineer, 510-981-6421 Attachments: 1: Resolution must conduct procurements in a manner that prohibits the use of statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference.” RESOLUTION NO. ##,###-N.S. COMMUNITY WORKFORCE AGREEMENT EXEMPTION FOR THE JAMES KENNEY SEISMIC RETROFIT PROJECT WHEREAS, the James Kenney Seismic Retrofit Project is part of the City’s Local Hazard Mitigation Plan to rehabilitate care and shelter facilities located throughout the City; and WHEREAS, on January 2, 2015, the City received notification of a federal FEMA grant for the James Kenney Seismic Retrofit Project in the amount of $727,499 (FY09 Legislative Pre-Disaster Mitigation Grant #2010-0001, Project #PJ01, FIPS #001-06000, Supplement #2 16-11052-C). This grant is a key funding component of the project, and without this funding, the City would not be able to implement the project; and WHEREAS, pursuant to Council Resolution No. 67,111, the City’s Community Workforce Agreement (CWA) would apply to all City construction projects estimated to exceed $500,000; and WHEREAS, federal regulations prohibit the “local hire” requirements contained in the City’s current CWA, and The Alameda County Building and Construction Trades Council has been advised of this; and WHEREAS, the City has neither the in-house staff nor equipment resources required to undertake the James Kenney Seismic Retrofit Project. NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the James Kenney Seismic Retrofit Project is exempted from the requirements of the Community Workforce Agreement authorized by Resolution No. 67,111-N.S.