HomeMy WebLinkAbout05/25/2004, AGENDA 1
council Apenaa
CITY OF SAN LUIS OBISPO
CITY HALL, 990 PALM STREET
Tuesday, May 259 2004
Action Update
REVISED
10:45 A.M. SPECIAL MEETING Council Chamber
Council Hearing Room
990 Palm Street
Present: Council Members John Ewan, Christine Mulholland,
Allen K. Settle, Vice Mayor Ken Schwartz,
Mayor Dave Romero
BUSINESS ITEM
1. FOOTHILL BRIDGE CONTRACT AWARD. (MCCLUSKEY/LYNCH - 20 MINUTES)
RECOMMENDATION: 1) Award a construction contract for the Foothill Bridge replacement to
Whitaker Contractors in the amount of $4,198,283.90 per Specification No. 90197D and authorize
the Mayor to execute an agreement with them. 2) Amend the project budget as follows to fund the
contract award: $1,058.200 from federal bridge replacement funds (HBRR) and the transfer of
$264,600 from completed and deleted capital improvement plan (CIP) projects in the Capital Outlay
Fund. 3) Transfer the remaining balance from completed and deleted projects in the Capital Outlay
Fund of $18,000 to the CIP Reserve.
ACTION. Approved as amended 4;0:1(Council Member Ewan abstained due to a possible
conflict of interest).
STUDY SESSION
1. REVIEW OF DESIGN OPTIONS FOR THE PALM-NIPOMO PARKING STRUCTURE.
(MCCLUSKEY/P. MANDEVILLE —2 HOURS)
RECOMMENDATION:. 1. Review the eight design options and direct staff to proceed with Site Plan
Options "D" and "H" as the preferred design options for further study. 2. Provide staff with further
direction regarding potential uses on the site, in addition to the parking.
ACTION. 1-2) Options reviewed and direction provided to staff.
counat AgcnOA
CITY OF SAN LUIS OBISPO
CITY HALL, 990 PALM STREET
Tuesday, May 25, 2004
Action Update
10:45 A.M. SPECIAL MEETING Council Chamber
Council Hearing Room
990 Palm Street
Present: Council Members John Ewan, Christine Mulholland,
Allen K. Settle, Vice Mayor Ken Schwartz,
Mayor Dave Romero
BUSINESS ITEM
1. FOOTHILL BRIDGE CONTRACT AWARD. (MCCLUSKEY/LYNCH - 20 MINUTES)
RECOMMENDATION: 1) Award a construction contract for the completion of the Foothill Bridge
Project; and 2) Authorize the appropriation of added Federal Bridge Replacement Funds (80%); and
3) Transfer of General Funds from other projects (20%) to support the added cost of the project.
ACTION: Approved 4:0.1 (Council Member Ewan abstained due to a possible conflict of
interest).
STUDY SESSION
1. REVIEW OF DESIGN OPTIONS FOR THE PA_L _
M-NIPOMO PARKING STRUCTURE.
(MCCLUSKEY/P. MANDEVILLE — 2 HOURS)
RECOMMENDATION: 1 Review the eight design options and direct staff to proceed with Site Plan
Options "D" and "H" as the preferred design options for further study. 2. Provide staff with further
direction regarding potential uses on the site; in addition to the parking.
ACTION: 1-2) Options reviewed and direction provided to staff.
counat agcnaa
CITY OF SAN LUIS OBISPO
CITY HALL, 990 PALM STREET
Tuesday, May 259 2004
ADDENDUM
BUSINESS ITEM ADDED:
10:45 AM. SPECIAL MEETING Council Chamber
990 Palm Street
B1. FOOTHILL BRIDGE CONTRACT AWARD. (MCCLUSKEY - 20 MINUTES)
RECOMMENDATION: 1) Award a construction contract for the completion of the Foothill
Bridge Project; and 2) Authorize the appropriation of added Federal Bridge Replacement
Funds (80%); and 3) Transfer of General Funds from other projects (20%) to support the
added cost of the project.
"STING AGENDA
L.JE] s ITEM # tis.
COUNCIL MEMORANDUM
DATE: May 21, 2004
TO: City Council
FROM: Ken Hampian, City Administrative Officer*�
SUBJECT: Foothill Bridge Replacement Project Contract Award
As you are aware, following staff's determination that John Madonna Construction's (JMC) bid
was non-responsive, JMC sought an administrative reconsideration hearing pursuant to federal
regulations and based upon the fact that the staff determination related to compliance with
federal DBE requirements applicable to this partially federally funded project. I appointed
Utilities Director John Moss to serve as the independent hearing officer because he had no
involvement in the bid process for this project. The hearing was held on May 18, but a
determination was not rendered until late Thursday afternoon, hence the need for a continuance
of the item to your special meeting of May 25.
Attached is a copy of the hearing officer's determination and findings. Based upon his decision,
I stand by the.recommendation set forth in the original staff report prepared for the May 18
meeting:
1. Award the construction contract for the Foothill Bridge replacement to Whitaker
Contractors in the amount of$4,198,283.90 per Specification No. 90197D and
authorize the Mayor to execute an agreement with them.
2 Amend the project budget as follows to fund the contract award: $1,058,200 from
federal bridge replacement funds and the transfer of$264,600 from completed and
deleted capital improvement plan projects in the Capital Outlay Fund.
3. Transfer the remaining balance from completed and deleted projects in the Capital
Outlay Fund of$18,000 to the CEP reserve.
Attachment
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Iill City o s IsOBISPO
879 Morro Street• San Luis Obispo. CA 93401
May 20, 2004
Via Facsimile (559) 642-2707
Mr. Gerald Weaver, Esq. — -- -
P.O. Box 494
Bass Lake, CA 93604
Barbara Lynch, Supervising Civil Engineer
City of San Luis Obispo
955 Morro Street
San Luis Obispo, CA 93401
Re: Bid Specification No. 90197D
Administrative Reconsideration
Dear Mr. Weaver and Ms. Lynch:
I. Introduction and Statement of Issues
The City, pursuant to Mr. Weaver's request, held an administrative reconsideration
hearing pursuant to 49 C.F.R. 26.53 on May 18, 2004, at 2:00 p.m. at City Hall. The
contractor was represented by Mr. Weaver and Mr. John Madonna. The City was
represented by Mr. Jonathan Lowell, City Attorney and Barbara Lynch, Supervising Civil
Engineer. I was designated by the City as the hearing officer in accordance with 49
C.F.R. 26.53(d) (2). Assistant City Attorney Gilbert A. Trujillo was in attendance as
counsel to the hearing officer.
John Madonna Construction Company (hereinafter "JMC") was the low bidder on City
Specification No. 90467 for the Foothill Bridge Replacement Project. The City rejected
JNIC's bid as non-responsive. JMC maintained that the single issue to be decided in this
proceeding was whether JMC met the good faith requirement for the DBE listed
subcontractors. The City maintained that there were two issues to be decided, to wit: 1)
whether JMC's bid submittal was non-responsive to the requirements of the bid
specifications, and 2) whether JMC met the good faith requirement for the DBE listed
subcontractors.
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The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. 660,
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Il l Telecnmiinicatinns Device for the naaf (805) 781-7410
Mr. Gerald Weaver, Esq.
May 20, 2004
II. JMC's Arguments
JMC argued that it met the good faith DBE requirements at the time of bid submittal by
listing Conrad Contractors as a subcontractor. It is undisputed that Franklin Reinforcing
Steel identified as a DBE subcontractor was not in fact a certified DBE contractor. .It is
also undisputed that Conrad Contractors is a certified DBE and was listed as a
subcontractor. It is further undisputed that at the time of bid submittal, Conrad was not
identified as a certified DBE. JMC argues that since Conrad was listed as a
subcontractor, JMC certified that Conrad would be performing bid items 61 and 62 for
the fabrication and installation of pre-cast slabs.
JMC further argues that a fundamental issue in this reconsideration hearing is the loss of
federal funding for the project: By designating Conrad as a subcontractor, JMC was
required to utilize Conrad on the project. With Conrad as a certified DBE, JMC argues
that it met the DBE goal of 2%, thereby negating a charge that federal regulations have
not been met, or that federal funding for the project could by jeopardized.
Finally, JMC argues that it met the good faith requirements of the DBE goals and federal
statute by meeting the participation goal.
It should be noted that JMC did not present any arguments (oral or written) that
addressed the second issue raised by the City that it did not meet and/or was non-
responsive to the requirements of the bid specifications.
III. City's Arguments
The City argues that the low bidder was not responsive to the bid specifications regarding
DBEs. The City maintains that JMC did not: 1) verify the DBEs certification for at least
one of the listed DBEs, 2) submit satisfactory DBE participation information within the
required time limit, 3) submit any good faith effort information within the required time
limit, and 4) submit DBE quotes within the required time limit.
The City further argues that Madonna did not provide the required information prior to
the established deadline that showed the goal would be met, or that quotes had been made
to meet the goal. The City maintains that all information supporting an award to JMC
was submitted after the deadline specified in the bid documents. The City concludes that
the low bidder was non-responsive.
IV. Findings.
A. Did JMC comply with the federal requirements for DBE participation (goal) and
good faith efforts?
The hearing officer finds that Conrad is a certified DBE and that had-Conrad been timely
designated as a DBE in the bid submittal, JMC would have met the 2% participation goal.
2 Bi- 3
1
Mr. Gerald Weaver, Esq.
May 20, 2004
However, the hearing officer further finds that JMC did not comply with the following
federal requirements for DBE participation:
49 C.F.R. 26.53 (b) (2) (i). JMC failed to list Conrad as a DBE participant
in the project pursuant to this section.
49 C.F.R. 26.53 (b) (2) (iii). JMC failed to provide the dollar amount of
the participation of each DBE firm participating in the contract, and in
fact, in correspondence from Gerald C. Weaver, Counsel representing
John Madonna Construction (JMC) dated. May 14, 2004, Mr. Weaver
identifies that JMC intentionally failed to disclose the full amount of the
DBE participation and listed only that required to meet the goal.
• 49 C.F.R. 26.53 (b) (2) (v) JMC failed to provide written confirmation
from any of the DBEs that they are participating in the contract as
provided in the prime contractor's commitment, in conformance with the
provisions of 49 C.F.R. 26.53 (b) (3) (i) in the manner specified in the
City's bid procedures, as a matter of responsiveness.
B. Did JMC comply with the requirements of the City's Specification No. 90197D?
The hearing officer finds that JMC did not comply with the following sections of
Specification No. 90197D in relation to DBEs:
• 2-1.01F. JMC did not verify that all listed DBEs were certified as DBEs at the
time of the bid opening, as evidenced by discovery of Franklin Reinforcing Steel,
a listed DBE, as a non-DBE until sometime after bid.
• 3-1.01. JMC failed to provide the required DBE information on the Local Agency
Bidder — DBE Information Form, for Conrad within the time provisions as
required in 3-1.02.
• 3-1.02. JMC failed to provide the required DBE information in the time specified.
Specifically, JMC failed to provide copies of the DBE quotes for all listed DBE
participants, with his DBE submittal, as required and specifically noted on Form 1
— Local Agency Bidder— DBE — Information Form. Section 3-1.02 specifically
provides that "failure to submit the required DBE information by the time
specified will be grounds for finding the bid or proposal non-responsive." As
noted above, JMC failed to provide the copies of the DBE quotes for the (all)
listed DBEs within the required time frame.
• 3-1.02. JMC failed to provide in his DBE information: the names, addresses and
phone numbers of DBE firms that will participate, as evidenced by his failure to
list Conrad as a DBE in his submittal; the dollar value of each DBE transaction,
again by his failure to list Conrad and his intentional failure to disclose the full
amount of Conrad's participation on the subcontractors listing form; and written
confirmation from the DBEs that they are participating in the project, as
evidenced by the Contractor's failure to submit the required DBE quotes.
3 �i-�
Mr. Gerald Weaver, Esq.
May 20, 2004
V. Conclusion:
It is the conclusion of the Hearing Officer that JMC failed to comply with the
requirements of 49 CFR 26.53 as noted above, and, the requirements of City
Specification No.. 90197D as noted above. It is therefore the decision of the Hearing
Officer to uphold the recommendation of the City Public Works Department to reject the
bid of John Madonna Construction as non-responsive.
My decision was based on the oral testimony, arguments and documents presented at the
hearing by the parties, identified below.
1) Correspondence from Gerald Weaver to Jonathan Lowell dated May 14, 2004..
2) Specification No. 90461, provisions 2-1 and 3-1 as provided by Barbara Lynch.
3) Form submitted by Contractor(copy).
4) City's DBE Submittal Timeline Summary as provided by Barbara Lynch.
5) City's Considerations for Determination of lowest responsible bidder as provided
by Barbara Lynch.
6) Local Assistance Procedure Manual, Section 9.7.
7) 49 CFR 26.53 (part)
8) Local Assistance Procedures Manual 20.2 as provided by Barbara Lynch.
Signature of Hearing Officer:
n E. Moss
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TELEPHONE: VS.S9164-7- ;Qd2
May 14, ^7004
11- Jonathan Lowe Via Facsimile
City Attorney 805/781-7-4.09-
City of San Luis Obispo
City hall
990 Palm Street
San Luis Obispo, Ca 93401
Re: Foothill Bridge Replacement Project
Low Bidder: John Madonna Construction
Dear l%cli. Lowe:
Please find enclosed copies of the bid proposals received from three of the listed
DBE subcontractors- They are as follows:
1. Bid items 12114 for construction signage and temporary crash cushion by
Statewide Safety and Sign, Nipomo, California in the amount of$42,012.00.
2. Bid items 40/41142/43/74 for installation of guard,rails by Ace Fence
Company, City of industry. California in the amount of$15,920.00, and
3. Did item.61/62 to fabricate and install pre-cast .,
- concrete voided slabs
Conrad Constructors, 2584 North Locust,Rialto, California in the amount of
$214,560.00,
for a total of$272,492.00.
As you can see from these bids, they were each received by Madonna on or before
the bid opening date. If John Madonna Construction is awarded the contract,he is
prepared to and will enter into subcontracts for this work with these three listed DBE
subcontractors according to their proposals.
The. rea%on that the d forth
amounts set forth in the attached proposals are greater
than the dollar amounts set forth in the city's"Form 1-Local Agency Bidder-DBE-
information", is that John inserted only that portion of the bids that were necessary to
meet the DBE goals on this project rather than the total amount of the respective bid
GERGLD _ WEQIIEF I GW CpP.P�' - `) Fu7C Nn.
FROM : - «q �-a --7@7 ,_,_.,. to :)SRa n-:a±Pm P-
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proposals. He did this under the misapprehension that if he designated a dollar amount
greater than that necessary to meet DBE goals, it would result in increasing the DBE
goals for future projects, which I do not believe to be the case. Hence,we are supplying
you with copies of the actual bid proposals from the three certified DBE contractors listed
among the eight listed subcontractors,to be used only as necessary to show compliance
with the City's DBE requirements under Public Contracts Code§2000 et.esq., and any
federal requirements the City must meet due to federal financing project requirements:
This project is subject to the Subletting and.Subcorttracting Fair Practices Act
(public Contracts Code §41000-4114), which prohibit a contractor from substituting any
person as a subcontractor in place of the subcontractor listed in the original bid unless the
awarding authority consents to the substitution. No substitution is requested. We know
of no reason at this time that would provide grounds for such a request.
Franklin Reinforcing Steel Company was included in the original Form I
provided to the city upon the representation by Franklin Reinforcing Steel that it held
DBL' certification number CT-001312. Madonna was not aware that this listed
subcontractor did not have a current DBE certification. When made av,,are of this
deficiency by the City, Mr- Madonna immediately submitted a revised Form l. This
estabUshes that among,the eight li%Led subcontractors was Conrad Constructors, DBE
certification number CT-000767, who was at the time of the bid listed as a subcontractor,
thereby certifying that Conrad Constructors would be performing bid items 61 and 62,
fabrication and installation of the pre-cast slabs. Enclosed is a copy of that form 1.
In Monterey M echanical Co v. Sa�mentn re¢ional County Sanitation District
(1966).S2 Cal.Rptr. a 395,the Court stated that the purpose of Public Contracts Crile
§2000 is to provide local agencies with a defined power to award a contract to the lowest
responsible bidder who makes a good faith effort to comply with the agency's affirmative
action goals and requirements according to the criteria established pursuant to
subdivision (b) of§2000. The Court held that the criteria set forth in subdivision(b)are
written to afford the local agency some measure of latitude, and that the local agency is
not precluded from considering results in terms of a bidder's variance from the agency's
affirmative action goals in assessing whether the bidder adequately complied with the
good faith effort criteria.
Clearly, the results in this case establish without question that our client made a
good faith effort, based upon the results. The work to be performed by three of the listed
subcontractors who hold DBE certifications greatly exceed the DBE goal set for the
project. In fact, the contract to be awarded Conrad Constructors, upon award of the
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contract to our ciient, is itself two and one half tunes the amount necessary tp meet tile
project affirmative action goals.
If there is any other information you need or any further commitment you need
from our client to employ these subcontractors on the project for the amounts and the bid
items set forth, please advise.
I submit that the provisions of the Subletting and Subcontracting Pair Practices
Ac-t, and the (act that these bid proposals were received and utilized by Madonna in
preparing his bid prior to the bid opening clearly establish not only a good faith effort,
but actual coo npliano with the goals of the agency and any federal.regulations governing
those goals. The Subletting and Subcontracting Fain Practices Act obligates our client to
use the listed subcontractors unless the listed subcontractor fails or refuses to execute a
contract,or cannot otherwise perform the work for any of the other reasons set forth in
Public Contracts Code §4107.
1 believe that the applicable federal regulations require only that the bidder
document commitments for partieipation by sufficient DBE firms to meet the goal, or to
document adequate efforts to meet the goal, if the goal has not been met. (49 CFR 26,
§.6.53)
I believe-we have done so, as we have in fact, exceeded the goal.
If for any reason you believe we have not done so,then we would request an
opportunity for administrative review and reconsideration pursuant to 49 CFR 26, §26.53.
(Note: these cites to the Code of federal Regulations, and the interpretation given, are
from the Cal Tuns Local Assistance Procedures Manual, Chapter 9, entitled
"Administrative Reconsideration". A copy of that policy and procedure comment in the
Cal Trans manual is enclosed).
Vcry truly yours,
Gerald C. Weaver
GC W/law
Enc.
cc: John Madonna Construction (wio enclosures)
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CONYRAC;# Foopthill$ridas 8=181carrient bit)DATE: 5142004
• A contiad and IS working days notice must be given priorto any move in.
• All Coch.tz:ction,Area Signs to be Installed at uric time or in stages. covered ifineeded at
in=!tatlon.Caphtractor to uncover and recover if needed.
Construction area signs include one mobilization per stage,additionai moblllzations
S1,500.00 each.
-
Traffic Control not included in installation,removal or repair of any Item.
Portable equipment mll be detive.•ed and picked up from one location.Contractor is liable for
I=and or.dartlleped equipment
Contractor is Roble for last or damaged equipment removed or relocated by contraatar's
fortes.
- Statewide Safety&Signs, Inc. does not accept charge or back charges of any kind unless
agreed to In wetting prior to work beginning.
- Statewide Safety&Signs,Inc. shall fully Indemnify Contractor for any liability arising out of
Statewide Safety&Signs, Inc,work or produem, but only to the extant ofStatewide safety&
Signs,;Inc.Uability and riot that of anyono else,Statewide Safety&Signs, Inc.malntalne
insurance coverage for their wort(henaunder.Including$1,000.000 Products T Corr>.p1QP
Agg and a 10/93 Additionel Ineured Endorsement.
If there are any issues or concerns regarding StsteMde Safety&Signs. Inc.p l ducts or
work, Conh'actor Shall promptly no*and glue Statewide Safety 8 Signs. Inc first
opportunity to w'ect any such Dieblems.
• Sign and marker location I nark-out and USA to be done by others and must be completed
Prior to Statewide Safety S Signs, Inc_starting work..
• Pwmanent reign and maker installation:maximum moveans: I_Additional move-ins
$1,500.00 each.
Permanent sign Include coring.
All change order work moat be approved by agency/ownerprior to work tieing perf"Med
by Statewide Safety&Signe, Inc.
Acceptance of fMs quote is acceptance of these provisions which shall prevail!if in.conflict
with any other documents.
i
i
gi-lI
Few SEPALP C IdEA0FP LAW rnPP FAX ran, : 559 50/2-2727 ri ,, 13 _nns n7:46P11 P7
UJ iJ;U: illb 1 i:JL k-Aa BU 4 i i S4
5=Lhdon L,nO 923 Coffff BreW 19"01 9375E SIeWdeil Plage 13Q Glo41c Cawrl
STATEWIDE Nlpanw,cA 04" am Jam,CA W1Iz ;may,u 2MA Fscfmld.CA 94SM
Safety do Sites, Inc. (W*9394070 (600)awgrm (M)®mrm taco)Tr"w
S -aa(OW)89W88 Fmc(Q9)M3.9773 Pwl t3W)0/70/7117 rwfi.(T 07)ac4-0as6
OORPOPATE
OFFIM
CERTIFIED: SWM, 061e a GERTv*CCA-81! ` UNION ' SONDARLL 0.9
UCEN56/1: 625694 A.C31
QUOTATION
ATTN : IbUrnaWn FROM: Don N)cholea
CONTRACT* 901970 alb DATE : 514=04
LOCATION/NAME ; Foattt(ll 1 was Ragkc ement
N pjpmm c" . -- $
7 Area SIPS
ndudes In"Hauon and rem6441 of ep 03=7-
Ty—pe 111 es,OwnekaM Shown on
Pages W1 3 Of 26.
In -odes the r®liowtiQn BI;ignahant signs
shown on sheer V&791
nat P&de . See for
I
Mal 11M
Includes concrete aMng for all algns N
3 TWc cm-W Systan I McndaV6-Fnft
Flagging t 8 Hr. 980,00
1 Lane 1 DI06h 1 8 Hr,
O.T. pedhr Perlman
14 TV�MWW OVAh MOWF1 Modules 2 2,245.00
lmc4udes plM VMi I aneys w Stage i
and I-T51 l wmy on Stage
Rsmovs and d us long ,256.0/
to CRY Cion Yard(nvamum move;re 21
I
CHANGEA U MESSAGE SIGN RENTAL RAT55
$130.001day,$490.00/1 week,$1,290/90/4 wanks;$69.00/dei 8,ptokua each
CALL FOR SALE PNCE
•'FURNISHED, INSTALLED AND REMOVED,TO REMAIN PROPERTY OF STATEWIDE
SAFETY&SIGNS, INC.
IF INTERESTED IN SPLITTING OUT ITEMS, CALL PRIOR TO B10 OPENING.
THIS QUOTATION AND ATTACHED CONTRACT PMVISiONS MUST BECOME A
BINDING PART OF ANY SUBCONTRACT
GERPLE, C t P-t-4�c ton. -�nsj F)7:zl�
P7p.nrl -JEPK)FP LrA�.i , nPP; : 559 642-2707 Pill PA
7734 JOHN MADONNA CONS1.
usjjiij j, :;jzj inAL 605'
26e4 PL Locum Adnan
Re.G.CA WWT�
Phos:PW,,3646263
Fea6iRWa(909)330-O02
May 4, 2W4
Aftntion: Emirnating 7 L.7 E0431
I
RE: Foothill BW,City d San LA Obtspci, CA
spoerricatlori 96197D
PWIS Concrete Voided Slabs
Conrad Cafttrudgm proposes to fabricate and haul 00 rolftlrV P104PS Concrete Girders to the vrcjW.site
2 piece PQTIS Concrete VoiM SMA(Type SfV) 915 w x SU 147W lom
18PIPOW 1=w X giu 14760 Iwo
Based upon C011MICt&VAillngs and Speciial Prghtioriz from the City of San Luis Obispo,dater Marcn 12.2004,
and Conrad Constructors stimclefd products.conditions,dwW!s• specMcM!or.s:andaftached 119 of exclusloris,
AW&ndj, Tm noted aline.
This BASE QU*?A"=(FOB only)incturres me tedrination plant labor, materials, sales tax shop drowings.
elostorneric be isaft and honnntell t*suds for the PQ PB Concrete Girders only, FOB prqect std mid
ftulirq;to Project sillia. One(1)hour unloading W=fircirm tme COM1,111110 delivery tiffle Is allowed at no added
mat AB standby tfta will be invoiced at 6250.00 per hour per truck All girders,are to be hauled in one
continuous operation.AN labor.equipment and materistis Tw unloading will be,by others.
The General Contractor must suppitV to Corrad Conotructom this fbilowin%l requkerrients:
1. A suitable art waNtrier roadway of sufficient width, level and firmness to haul the above iteps from a rnzjx
paved read orft the project aft.The roadway to the en must acicommomirte,the hauling trucks,The g6rdem
WHI be hauled an stroW vmkm The abovo is W be ocomptable to Conrad Constructors.
2. Adequate stalileg areas rionsorablyr Woe to the work for storqe of the precast prtw to milanaw n
required The stagilrV site location must not mme an added pernift ocotto the howling operaturl.
3. Cmainartion with and rtaffication to GMT,Cites,Prilivulte property ownera, Railway sea other
gave.,ffwfti or Private aganom tricluding;piW3W piroparty owners as required.
4. A rrilrilri=of r*4M(M)worW-q do"notice Must be reoelvird in Writing at the Itlato fplanii, and'accepted
?Yy Conrad Cormtruictora pnor to the era tion date for any ovrigics to the aignift OMWwW-
5. Irtaeft, w%flor a;mvft cog M the nmdxn to support faillsewerk, handraile or Wier Itarris.
6. Verification 01 fad dimvIsions,as rewired,prior to start Cf shop drawing.
The above items will be at no coat to Conrad Condfuctors or tPielir suboartrectors.
Wkrk an this"411 Find start before 20111. A filly executed wftct and an agreed upon schedule
MW 11M fix3dived at V9W RiM P111111t prkDwrtoft start of any work on this p,*,d The shop drawings vrY tete
aWM=UaWY two CZ weeks. FaWQW of Vo above Items mill take apprimrraftlir fire(5)weeks Lased upon
Im plant production achedulle, Fabrication eatirm vW Until the final oiWiad and stamped approved shop
dravoirgs. concrete rnaturlatstestiM and conarsta milk d"19r;has boon(Vwived by Conrad Con:51tructon
Canted Constructors W Cast the rnefter based an tie approved drawing dirriensions posslbty prior to
construrticini of the supports.
SM QUOTATION:PCft CONCP4W amilm"(Poll ONLY)
)Lern 61 352 M2 Ptortlish PGFS Camangto Slab MW alV) 5506.00 M2 S177760.00 Total
Bond,It required-2.S%
ADUMVE ALTERNATR W1 TO THE I11AW QUOTATION(Sal"Tax AdIusW Erection of the above girders
Includes two(2)rrvAlmons Tor crane,crow and rigging equipmeft.All work will be in a continuous operation
during day time hours, Monday through Friday.All girders are to be sleeted on non-qraowd bearrig pigs with
the vertical aftwI3 Orflisid after erection The erection schodulo and ognaoris must be acceptable to Conrad
Cared Caravy1cwt Coritmear's Lie No.2695?6
6001 PDOW11 Blvd.601079
FF,n'd GERALD r i.IEAVFP LAW COPA FAX ran. : 559 X12-271717 w�,,. 11 2001 R N::1RPrl P14
n� tJ•'04 THU 1?:3. FAX 805 S S4 JOHN RAUUNNA (ONST.
•:<:�c n4
natruCto L of CI hair Subeartiraators.The Generoi Contractor must pror»e Secure Wagng
during tic erection:operation to priavont any girder movernum after the crrnvS reicases the load.
i he General Contractor must supply to Gonrdd C0netr1urWi a trio M.QUi(wr*ntS t "n"Ougn ti as ii6teS1 eGC"a 10
also Ih¢foligM'-G1:
A ctsar snd unababvOted a"wr-zther access of SttlflCisrl Vdtm- length, Vvel and firmness`o supper,the
cranes and hatilIN truths The Pnn,e C&Vrector may be required to Rave the 0(-roll.This arra must to
acceptable to Conrad Conatruetom and their subcorrtraotors. Tha crane will 00.1imated within 3'-0"hem tna
AtWtrnont backwall.A 30' Wilda Pad for the atone plus t2'-0'for lure haviirg truck rnust be provided. Tha
hauling Uvalm will stege maid to the grana. Lena ahsum will be required.
2. A suitable and secure area m build up and dirmantle clash crane,minimum 50'-0'x 200'-0",in an area
Cdjaeent to the work.A tsuitdble snd eecul area to store the cranes and accessory road trucks curing
erection and nonworking tours if required,minimum 40'-0"x 60'-0".
3. Furnishes in,6taning end removing the lateral ties, bracing or Claphraema,including their Cesign,will baby
the General Cdntrsalnr and malt not delay the erection eptfrmbM Standby time for any reason, ncludirg
weather,not due to o delay caused by Conrad Condnaeters, will be i.ivoiaed at the rata of W00.00 per hour.
n. General Coritrector will remove andfer.make safe ail overhead sleetrlcdi antes andfor"t obatNetons that
would it* with the erection operation.Tiro owirttead wires must be de-onergbrd and a wire survey to
verity the and loeetians of tht t)verhmd lines must be provided to Ounrad CAnetnleteiw All below grade
utiillies must be t irtun this weight of the cranio, its ouaigge j and ttre tniloldwda.
s. tJne cru!grodo m ttte 9trdtcs hrolut2nSj inetalteCon of tin tnsrinD f�eaa,���Pt� lueneasidna and
why coating as required.Ail Abubtterits and Fivia to b2 free of spar.
6. Parking for empWisa's vaniotms and toikit toilities within reascrubko waking disteroe to the work.
The above tequireenents will be at no cost to Conrad Constructors er their subeemra t nii and mutt be
acceptable to Conrad Constructors.
AUDI' Mei ALTERNAW M
Ilam a2 20 ee Erect PGP$Concrete Slobs 61,350.00 ea $27.000.00 TOW
Added Move-ons—$9,600.00
The above quotations may be revised or withdrawn by Conrad Constructors d riot accepted within thirty days
from the date of this quatatian letter.
The Oanaral Contractor must have Conrad Constructors Rialto Precast Plant approved oy the owner as s
storage alta for the purposes of invotohl materials on hared tot Ina above project. Invoices will be sent monthly
and are due and payable per the tents and conditionb a6 stated an the invoices. Payrrwnts fer this prej9d will
not be tied,in any easy,to other projects with the Contractor. Retention win not be withhold.Conrad Cgnatrucu"
will not accept any charges far liquidated damages, inoWUV but not limited to the Ponaltles for the rate
reoponing of traffic.All reasonable; —-vtiona wAl be takon to perform work within the permitted cloauro
periods.Unforeseen problems.tnCiudingi ed Rot limitad to oquipmett bilwkdowrt.will riot be cause for 11%Adated
damage toss to to charged to Conrad Construdoro or their subcontractors.The Genteel Contrac W to cul y
responsible to protect Conrad Corarttuctots from all errors and omlaaions by others;including,bull not limited to.
the failure of the Owner to accept cordorming goode.This quotation utter is to be made a part of the
subcontract There must be•currerit Sundves All Risk Insurance parley provided by oolarv, oevedng Carmel
Constructors, cts
their produand thalr Subcontracts for thio project.Any Ir UMMO Ih excess of 82 trillion
s"a gate or 51 tnaWos pat oocwreIM N not WA*ddad In the"prieae.
Conrad Conti crottle 11 iniffawsrad DOW t„ nr Gat4atta ani,CTQMM. Conrad
Camztl
n 3m iS try nwvsod blr t�0 Coy of los Aratles end 88$h approved fabrc=r nor SVUCU al
prceaet arca Pteatrvsead Concrete.with the Stated Colifomla as a'•B"and"C•8"Contractor.The Precast Plant
is!orated In Rialto,CoWamta. K you have any additional questions,cell(909)350-6283.
Sincerely,
CONRAD CONSTRUCTORS
Roper T. Itaya
Cerrlkd Conamch ! Cmrtroet-y'f Lie No.M76
FA[St GwQi6 Sind.60111170
FR[1MiEpGl Tl r LIEGUER 141.1 f'[IpF FGk tJn, SSC h4'7-]7R7 ^1A u. 14 Dol-114t7_:dOGM P1Q
I
ADMINSTBATIYE RECONSIDERATION
If the goal is not met, d bidder must, in o.dcr to be responsible and/ox
responsive, have made good faith effort& to meet. the DBE goal by
documenting cC itmerits for participation by suffieirtlt DnE firma, or
doCuraent adequate good faith vifOrts to achively end aggre.8"Vely obtain
participative by a sufficient number of OBS firma. An adrniniFtrative
revi see Section 26,53, CFR 49 Part 261 and 'udg=.-4t oa'll of th
faith effor-s shoul be ma a privx o az ' In eac instance b the lac
a encs. if the local agency determines that the apparent . ucceseful
51 e' offeror hes failed to meet the good faith requirements, the local
agency must, before awarding the contract, provide the bidder/offeror an
opportunity for administrative reconsidaration in accordance with Section
26. 53, cFR 49 zazt 26 .
The link to this Chaptcr 9 of the Local Assistance Procedures Manual in its' .
entirety is:
i
/ha./LocalProgramallam/nrog plp09crdba.pdf
I
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'diem.
2-1.01 DISADVANTAGED BUSINESS ENTERPRISES (DBE)
This project is subject to Part 26, Title 49, Code of Federal Regulations entitled "Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs." The
Regulations in their entirety are incorporated herein by this reference.
Bidders shall be fully informed respecting the requirements of the Regulations and the Department's
Disadvantaged Business Enterprise (DBE) program developed pursuant to the Regulations; particular
attention is directed to the following matters:
A. A DBE must be a small business concern as defined pursuant to Section 3 of U.S. Small Business
Act and relevant regulations promulgated pursuant thereto;
B. A DBE may participate as a prime contractor, subcontractor;joint-venture partner with a prime or
subcontractor, vendor of material or supplies, or as a trucking company;
C. A DBE bidder,not bidding as a joint venture with a non-DBE,will be required to document one or
a combination of the following:
I. The bidder will meet the goal by performing work with its own forces.
2. The bidder will meet the goal through work performed by DBE subcontractors, suppliers or
trucking companies.
3. The bidder,prior to bidding,made adequate good faith efforts to meet the goal.
D. A DBE joint venture partner must be responsible for specific contract-items of work, or portions
thereof. Responsibility means actually performing, managing and supervising the work with its
own forces. The DBE joint venture partner must share in the capital contribution, control,
management, risks and profits of the joint venture. The DBE joint venturer must submit the joint
venture agreement with the proposal or the DBE Information form required in the Section entitled
"DBE Information" of these special provisions;
E. A DBE must perform a commercially useful function, i.e., must be responsible for the execution of
a distinct element of the work and must cavy out its responsibility by actually performing,
managing and supervising the work;
F. DBEs must be certified by either the California Department of Transportation,or by a participating
agency which certifies in conformance with Title 49, Code of Federal Regulations, Part 26, as of
the date of bid opening. It is the Contractor's responsibility to verify that DBEs are certified.
Listings of certified DBEs are available from the following sources:
1. The Department's DBE Directory, which is published quarterly. This Directory may be
obtained from the Department of Transportation, Materiel Operations Branch, Publication
Distribution Unit, 1900 Royal Oaks Drive, Sacramento, California 95815, Telephone:
(916)445-3520;
2. The Department's Electronic Information Bulletin Board Service, which is accessible by
modem and is updated weekly. The Bulletin Board may be accessed by first contacting the
Department's Business Enterprise Program at Telephone: (916)227-8937 and obtaining a user
identification and password;
3. The Department's web site at http://www.dot.ca.gov/hq/bep/iriddx.htm;
G. Credit for materials or supplies purchased from DBEs will be as follows:
I. If the materials or supplies are obtained from a DBE manufacturer, 100 percent of the cost of
the materials or supplies will count toward the DBE goal. A DBE manufacturer is a firm that
operates or maintains a factory or establishment that produces, on the premises, the materials,
supplies, articles, or equipment required under the contract and of the general character
described by the specifications.
2. If the materials or supplies are purchased from a DBE regular dealer, 60 percent of the cost of
the materials or supplies will count toward the DBE goal. A DBE regular dealer is a firm that
owns, operates, or maintains a store, warehouse, or other establishment in which the materials,
supplies, articles or equipment of the general character described by the specifications and
required under the contract are bought, kept in stock, and regularly sold or leased to the public
in the usual course of business. To be a DBE regular dealer, the firm must be an established,
regular business that engages, as its principal business and under its own name, in the purchase
and sale or lease of the products in question. A person may be a DBE regular dealer in such
bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning,
operating, or maintaining a place of business as provided in this paragraph G.2. if the person
both owns and operates distribution equipment for the products. Any supplementing of regular
dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad
hoc or contract-by-contract basis. Packagers, brokers, manufacturers' representatives, or other
persons who arrange or expedite transactions are not DBE-regular dealers within the meaning
of this paragraph G.2.
3. Credit for materials or supplies purchased from a DBE which is neither a.manufacturer nor a
regular dealer will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation charges
for the delivery of materials or supplies required on a job site, provided the fees are reasonable
and not excessive as compared with fees charged for similar services.
H. Credit for DBE trucking companies will be as follows:
1. The DBE must be responsible for the management and supervision of the entire trucking
operation for which it is responsible on a particular contract, and there cannot be a contrived
arrangement for the purpose of meeting the DBE goal;
2. The DBE must itself own and operate at least one fully licensed, insured, and operational truck
used on the contract;
3. The DBE receives credit for the total value of the transportation services it provides on the
contract using trucks its owns,insures,and operates using drivers it employs;
4. The DBE may lease trucks from another DBE firm, including an owner-operator who is
certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total
value of the transportation services the lessee DBE provides on the contract;
5. The DBE may also lease trucks from anon-DBE firm, including an owner-operator. The DBE
who leases trucks from a non-DBE is entitled to credit only for the fee or commission it
receives as a result of the lease arrangement. The DBE does not receive credit for the total
value of the transportation services provided by the lessee, since these services are not
provided by a DBE;
6. For the purposes of this paragraph H, a lease must indicate that the DBE has exclusive use of
and control over the truck. This does not preclude the leased truck from working for others
during the term of the lease with the consent of the DBE, so long as the lease gives the DBE
absolute priority for use of the leased truck. Leased trucks must display the name and
identification number of the DBE.
I. Noncompliance by the Contractor with the requirements of the regulations constitutes a breach of
this contract and may result in termination of the contract or other appropriate remedy for a breach
of this contract;
J. Bidders are encouraged to use services offered by financial institutions owned and controlled by
DBEs.
8�-/7
2-1.02 DBE GOAL FOR THIS PROJECT
The City has established the following goal for Disadvantaged Business Enterprise (DBE) participation for
this project:
Disadvantaged Business Enterprise(DBE): two ( 2 °o)
Caltrans has engaged the services of a contractor to provide supportive services to contractors and
subcontractors to assist in obtaining DBE participation on federally funded construction projects. Bidders
and potential subcontractors should check the Caltrans website at littn://www.dot.ca.gov/hq/ber) to verify
the current availability of this service.
SECTION 3. SUBMISSION OF DBE INFORMATION AND AWARD AND
EXECUTION OF CONTRACT
3-1.01 GENERAL
The bidder's attention is directed to the provisions in Section 3, "Award and Execution of Contract," of the
Standard Specifications, and these special provisions for the requirements and conditions concerning
submittal of DBE information and award and execution of contract.
The required DBE information shall be submitted on the "LOCAL AGENCY BIDDER - DBE
INFORMATION" form included in the Proposal. If such DBE information is not submitted with the bid,
the DBE information form shall be removed from the documents prior to submitting the bid and submitted
in accordance with"DBE Information"of these special provisions.
It is the bidder's responsibility to make enough work available to DBEs and to select those portions of the
work or material needs consistent with the.available DBEs to meet the goal for DBE participation or to
provide information to establish that,prior to bidding,the bidder made adequate good faith efforts to do so.
3-1.02 DBE INFORMATION AND GOOD FAITH EFFORT
If DBE information is not submitted with the bid,the apparent successful bidder (low bidder), the second
low bidder and the third low bidder shall submit DBE information to the City of San Luis Obispo Public
Works Department, 955 Morro Street, San Luis Obispo, CA 93401 so the information is received by the
City of San Luis Obispo no later than 4:00 p.m. on the fourth day, not including Saturdays, Sundays and
legal holidays, following bid opening. DBE information.sent by U.S. Postal Service certified mail with
return receipt and certificate of mailing and mailed on or before the third day, not including Saturdays,
Sundays and legal holidays, following bid opening will be accepted even.if it is received after the fourth
day following bid opening. Failure to submit the required DBE information by the time specified will be
grounds for finding the bid or proposal nonresponsive. Other bidders need not submit DBE information
unless requested to do so by the City of San Luis Obispo.
The bidders DBE information shall establish that good faith efforts to meet the DBE goal have been made.
To establish good faith efforts,.the bidder shall demonstrate that the.goal will be met.or that, prior to
bidding,adequate good faith efforts to meet the goal were made.
Bidders are cautioned that even though their submittal indicates they will meet the stated DBE goal, their
submittal should also include their adequate good faith efforts information along with their DBE goal
information to protect their eligibility for award of the contract in the event the City, in its review, finds that
the goal has not been met.
The bidder's DBE information shall include the names, addresses and phone numbers of DBE firms that
will participate, with a complete description of work or supplies to be provided by each, the dollar value of
each DBE transaction, and a written confirmation from the DBE that it is participating in the contract. A
copy of the DBE's quote will serve as written confirmation that the DBE is participating in the contract.
When.100 percent of a contract item of work is not to be performed or furnished by a DBE, a description of
the exact portion of that work to be performed or furnished by that DBE shall be included in the DBE
information, including the planned location of that work. The work that a DBE prime contractor has
committed to performing with its own forces as well as the work that it has committed to be performed by
DBE subcontractors,suppliers and trucking companies will count toward the goal.
The information necessary to establish the bidder's adequate good faith efforts to meet the DBE goal should
include:
A. The names and dates of each publication iii which a request for DBE participation for this project
was placed by the bidder.
B. The names and dates of written notices sent to certified DBEs soliciting bids for this project and the
dates and methods used for following up initial solicitations to determine with certainty whether
the DBEs were interested.
C. The items of work which the bidder made available to DBE firms, including, where appropriate,
any breaking down of the contract work items (including those items normally performed by the
bidder with its own forces) into economically feasible units to facilitate DBE participation. It is the
bidder's responsibility to demonstrate that sufficient work to meet the DBE goal was made
available to DBE firms.
D. The names, addresses and phone numbers of rejected DBE firms, the firms selected for that work,
and the reasons for the bidder's choice.
E. Efforts made to assist interested DBEs in obtaining bonding, lines of credit or insurance, and any
technical assistance or information related to the plans, .specifications and requirements for the
work which was provided to DBEs.
F. Efforts made to assist interested DBEs in obtaining necessary. equipment, supplies, materials, or
related assistance or services, excluding supplies and equipment the DBE subcontractor purchases
or leases from the prime contractor or its affiliate.
G. The names of agencies contacted to provide assistance in contacting, recruiting and using DBE
firms.
H. Any additional data to support a demonstration of good faith efforts.
3-1.03 AWARD OF CONTRACT
The award of contract, if it is awarded, will be to the lowest responsible bidder whose proposal complies
with all the requirements prescribed and who has met the goal for DBE participation or has demonstrated,
to the satisfaction of the City, good faith effort to do so. Meeting the goal for DBE participation or
demonstrating,to the satisfaction of the City, good faith efforts to do so is a condition for being eligible for
award of contract.
B/-/9
FORM I—LOCAL AGENCY BIDDER - DBE - INFORMATION
This information may be submitted with your bid proposal. If it is not,and you are the apparent low bidder or
the second or third low bidder,it must be submitted and received as specified in Section 2-1.0213 of the Special
Provisions. Failure to submit the required DBE information will be grounds for finding the proposal
nonresponsive.
CO:RTE:K.P.:
CONTRACT NO • J39,1 -S
BID AMOUNT: $
BID OPENING DATE tnel _
BIDDER'S NAME:
DBE GOAL FROM CONTRACT:
DBE PRIME CONTRACTOR CERTIFICATION
CONTRACT ITEM OF WORK AND DBE CERT:NO. NAME OF_DBEs, DOLLAR
ITEM NO. DESCRIPTION OR SERVICES TO (Must be certified on the date AMOUNT
BE SUBCONTRACTED OR bids are opened-include DBE DBE'
MATERIALS TO BE PROVIDED' address and hone number
Corl STru e r�cry 515 nA5 CC A- cl 15'ta t D-v 45Q }Y
1�1y Telma rar Crus► SiSv,
9 ay-5cv ti ti t tYXJ '
Cu-shioru
Hgk1/9 '2 Lard i?Ct�L CT-OD457 Ace, F-evu Co . tDt� -
'�3�7 y G� off' �n1o1 us
�(o Z4) 33 3 -'D 7-P
(0q air C-T -ao131a Fronh _I_ N painaa
- (Dotd
-
Ivv C f n5 5� 1 CD A
FreSno � Ca �
IMPORTANT: Identify all DBE firms being claimed for credit, Total Claimed $ y t OGD
regardless of tier. Copies of the DBE quotes are required. Participation
Names of the First Tier DBE Subcontractors and their respective
item(s)of work listed above shall be consistent,where applicable, a. %
with the names and items of work in the"List of
Subcontractors" submitted with your bid pursuant to the
Subcontractors Listing Law and Section 2-1.01,"General,"of
the Special Provisions.
1. DBE prime contractors shall enter their DBE certification number. DBE prime
contractors shall indicate all work to be performed by DBEs including work performed gnature of Bidder
by its own forces.
2. If 100%of item is not to be performed or furnished by DBE,describe exact portion ;1U 1nq ZG-� 1751
of item to be performed or furnished by DBE. Dat (Area Code)Tel.No.
3. See Section 2-1.02,"Disadvantaged Business Enterprise,"to determine the credit
allowed for DBE firms. Person to Contact (Please Type or Print)
CT Bidder-DBE Information(Rev 09-29-99)
FORM I
16 ��-�
DBE Submittals - Timeline
➢ 5/4 Bids Open — Verbal notification to all bidders to submit their DBE information
➢ 5/5 Written notice to bidders to submit their DBE information by 5/10 @ 4:00 P.M.
➢ 5/5 DBE Submittal from 3`d bidder (5.2%) with required quotes
➢ 5/6 DBE Submittal from 2"d bidder (5.8%) with required quotes
➢ 5/10 DBE Submittal from low bidder @3:50 P.M.
2.8% claimed / 1.3% actual
no quotes submitted, no good faith effort information submitted
➢ 5/10 @4:00 P.M. DBE Submittal DEADLINE
➢ 5/11 City not low bidder.that goal is not met & no good faith effort info submitted
so award will go to 2nd bidder
➢ 5/12 low bidder submits revised DBE information for 6.4% back dated to 5/4— no
quotes submitted
➢ 5/13 City notifies low bidder that the information submitted does not change the
decision for award
➢ 5%14 Low bidder's attorney submits quotes
Considerations for determination of lowest responsive bidder
Low bidder did not:
➢ Verify the DBE's certification for at least one of the listed DBE's
➢ Submit satisfactory DBE participation information within'the required time limit
➢ Submit any good faith effort information within the required time limit
➢ Submit DBE quotes within the required time limit
Low bidder did not provide information PRIOR to the required deadline that showed the
goal would be met and quotes had been received OR that a_good faith effort had been
made to meet the goal.
All information supporting an award to this bidder was submitted after the deadline.
DBE submittal is an official portion of the bid. It is unfair to allow one bidder an
opportunity to make a second submittal of DBE information.
The low bidder is non-responsive on the face of his submittal.
City has discretion to waive irregularities but need not do so. Allowing a late submittal
could subject the City to legal action by other bidders.
The City's past practice has been to hold bidders to the requirements outlined in the
contract documents and find bidders non-responsive who failed to comply with the
requirements.
The City is concerned a waiver of an irregularity relating to DBE requirements could
jeopardize the City's eligibility for federal funding.
The City is not inclined to waive this as an irregularity.
Bi-a2
WAIS Document Retrieval Page 1 of 2
[Code of Federal Regulations]
[Title 99, volume 11
[Revised as of October 1, 20031
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR261
[Page 270-2711
TITLE 49--TRANSPORTATION
Subtitle A--Office of the Secretary of Transportation
PART 26 PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF
TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
Subpart C Goals, Good Faith Efforts, and Counting
Sec. 26.53 What are the good faith efforts procedures recipients follow
in situations where there are contract goals?.
(a) When you.have established a DBE contract goal, you must award
the contract only to a bidder,/offeror who makes good faith efforts to
meet it. You must determine that a bidder/offeror has made good faith
efforts if the bidder/offeror does either of the following things:
(1) Documents that it has obtained enough DBE participation to meet
the goal; or
(2) Documents that it made adequate good faith efforts to meet the
goal, even though it did not succeed in obtaining enough DBE
participation to do so. If the bidder/offeror does document adequate
good faith efforts, you must not deny award of the contract on the basis
that the bidder/offeror failed to meet the goal. See Appendix A of this
part for guidance. in determining the adequacy of a bidder/offeror's good
faith efforts.
'.(b) In your solicitations for DOT-assisted contracts for which a
con act goal has been established, you must require the following:
(1) Award of the contract will be conditioned on meeting the
requirements of this section;
S�2) All bidders/offerors will be required to submit the following
information .to thA recipient, at the time provided in paragraph (b) (3) .
of this section:.
(i) The names and addresses of DBE firms that will participate in
the contract;
(ii) A description of the work that each DBE will perform;
(iii) The dollar amount of the participation of each DBE firm
participating;
(iv) Written documentation of the bidder/offeror's commitment to use
a DBE subcontractor whose participation it submits to meet a contract
goal;
(v) Written confirmation from the DBE that it is participating in
the contract as provided in the prime contractor's commitment; and
(vi) If the contract goal is not met, evidence of good faith efforts
(see Appendix A of this part) ; and
(3) At your discretion, the bidder/offeror must present the
information required by paragraph (b) (2) of this section--
Under sealed bid procedures, as a matter ofraanonsiveness, or
with initial proposals, under,contract negotiation procedures; or
(ii) At any time before you commit yourself to the performance of
the contract by the bidder/offeror, as a matter of responsibility.
(c) You must make sure all information is complete and accurate and
adequately documents the bidder/offeror's good faith efforts before
http://frw'ebgate4.access.gpo.gov/cgi-binhvaisgate.cgi?W Al Sdocl D=38329511372+36+0+... 5/12/2004
B1-27
WAIS Document Retrieval' Pagel oft
[Code of Fedetai Regulations]
[Title 49, Volume 11
[Revised aE of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR261
[Page 270-2711
TITLE 49--TRANSPORTATION
Subtitle A--Office of the Secretary of Transportation
PART 26 PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF
TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
Subpart C Goals, Good Faith Efforts, and Counting
Sec. 26.53 What are the good faith efforts procedures recipients follow
in situations where there are contract goals?
(a) When you have established a DBE contract goal, you must award .
the contract only to a bidder/offeror who makes good faith efforts to
meet it. You must determine that a bidder/offeror has made good faith
efforts if the bidder/offeror does either of the following things:
(1) Documents that it has obtained enough DBE participation to meet
the goal; or
(2) Documents that it made adequate good faith efforts to meet the
goal, even though it did not succeed in obtaining enough DBE
participation to do so. If the bidder/offeror does document adequate
good faith efforts, you must not deny award of the contract on the basis
that the bidder/offeror failed to meet the goal . See Appendix A of this
part for guidance in determining the adequacy. of a bidder/offeror's good
faith efforts.
J .(b) In your solicitations for DOT-assisted contracts for which a
con act goal has been established, you must require the following:
(1) Award of the contract will be conditioned on meeting the
requirements of this section;
Sq;�(2) All bidders/offerors will be required to submit the following
information to the recipient, at the time provided in paragraph (b) (3)
of this section:
(i) The names and addresses of DBE firms that will participate in
the contract;
(ii) A description of the work that each DBF will perform;
(iii) The dollar amount of the participation of each DBE firm
participating;
(iv). Written documentation of the bidder/offeror's commitment to use
a DBE subcontractor whose participation it submits to meet a contract
goal;
(v) Written confirmation from the DBE that it is participating in
the contract as provided in the prime contractor's commitment; and
(vi) If the contract goal is not met, evidence of good faith efforts
(see Appendix A of this part) ; and
(3) At your discretion, the bidder/offeror must present the
information required by paragraph (b) (2) of this section--
%<"(i) Under sealed bid procedures,, as a matter of rPsoonsiveness, or
with initial proposals, under contract negotiation procedures; or
(ii) At any time before you commit yourself to the performance of
the contract by the bidder/offeror, as a matter of responsibility.
(c) You must make sure all information is complete and accurate and
adequately documents the bidder/offeror's good faith efforts before
http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdoc1D=3832951 1372+36+0+... 5/l2/2004i6J;?y
Local Assistance Procedures Manual Chapter 9
Civil Rights and Disadvantaged Business Enterprises
Exception
If the DBE's ineligibility is caused solely by its having exceeded the size standard during
the performance of the contract, the local agency may continue to count its participation
on that contract toward overall and contract goals.
Appeal
When Caltrans makes an administratively final removal of a firm's eligibility, the firm
may appeal the removal to the DOT under Section 2.6.89 of 49 CFR Part 26. Caltrans will
provide information for an appeal with the removal of eligibility.
9.7 GOOD FAITH EFFORTS
Whether as a bidder or contractor of a DOT-assisted contract, good faith efforts are
required to meet the contract goal. This applies even if the bidder or prime contractor is a
DBE.
When a local agency establishes a contract goal on a DOT-assisted contract, a bidder
must, in order to be responsible and/or responsive, make good faith efforts to meet the
goal. The bidder can meet this requirement in either of two ways. First,the bidder can
meet the goal, documenting commitments for participation by DBE firms sufficient for
this purpose. Second, even if a bidder does not meet the goal, the bidder can document
adequate good faith efforts. This means that the bidder must show that it took all
necessary and reasonable steps to achieve a DBE goal or other requirement of 49 CFR
Part 26 which; by their scope, intensity, and appropriateness to the objective, could
reasonably be expected to obtain sufficient DBE participation, even if they were not fully
successful. No local agency shall require that a bidder meet a contract goal in order to be
awarded a contract.
In any situation in which a contract goal has been established,the use of good faith efforts
must be allowed. Each local agency must make a fair and reasonable judgment whether a
bidder that did not meet the goal made adequate good faith efforts. It is important to
consider the quality,quantity,and intensity of the different kinds of efforts that the bidder
has trade. The efforts employed by the bidder should be those that one could reasonably
expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE
participation sufficient to meet the DBE contract goal. Mcre pro forma efforts are not
good faith efforts to meet the DBE contract requirements. We emphasize, however, that
local agencies' determination concerning the sufficiency of the firm's good faith efforts is
a judgment call;meeting quantitative formulas is not required.
Caltrans also strongly cautions local agencies against requiring that a bidder meet a
contract goal (i:c.,obtain a specified amount of DBE participation)in order to be awarded
a contract,only that the bidder makes an adequate showing of good faith efforts. Title 49,
CFR Part 26,specifically prohibits DOT financial recipients from ignoring bona fide good
faith efforts.
Page 9-23
LPP 01-04 March 15,2001
>r
Local Assistance Procedures Manual Chapter 9
Civil Rights and Disadvantaged Business Enterprises
Exception
If the DBE's ineligibility is caused solely by its having exceeded the size standard during
the performance of the contract, the local agency may continue to count its participation
on that contract toward overall and contract goals.
Appeal
When Caltrans makes an administratively final removal of a firm's eligibility, the firm
may appeal the removal to the DOT under Section 26.89 of 49 CFR Part 26. Caltrans will
provide information for an appeal with the removal of eligibility.
9.7 GOOD FAITH EFFORTS
Whether as a bidder or contractor of a DOT-assisted contract, good faith efforts are
required to meet_ the contract goal. This applies even if the bidder'or prime contractor is a.
DBE.
When a local agency establishes a contract goal on a DOT-assisted contract, a bidder
must, in order to be responsible and/or responsive, make good faith efforts to meet the
goal. The bidder can meet this requirement in either of two ways. First;the bidder can
meet the goal, documenting commitments for participation by DBE firms sufficient for
this purpose. Second, even if a bidder does not meet the goal, the bidder can document
adequate good faith efforts. This means that the bidder must show that it took all
necessary and reasonable steps to achieve a DBE goal or other requirement of 49 CFR
Part 26 which, by their scope, intensity, and appropriateness to the objective, could
reasonably be expected to obtain sufficient DBE participation, even if they were not fully
successful. No local agency shall require that a bidder meet a.contract goal in order to be
awarded a contract.
In any situation in which a contract goal has been established,the use of good faith efforts
must be allowed. Each local agency must make,a fair and reasonable judgment whether a
bidder that did not meet the goal made adequate good faith efforts. It is important to
consider the quality,quantity,and intensity of the different kinds of efforts that the bidder
has made. The efforts employed by the bidder should be those that one could reasonably
expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE
participation sufficient to meet the DBE contract goal. Mcrc gro forma efforts are not
good faith efforts to meet the DBE contract requirements. We emphasize, however, that
local agencies' determination concerning the sufficiency of the firm's good faith efforts is
a judgment call;meeting quantitative formulas is not required.
Caltrans also strongly cautions local agencies against requiring that a bidder meet a
contract goal(i.e.,obtain a specified amount of DBE participation)in order to be awarded
a contract;only that the bidder makes an adequate showing of good faith efforts. Title 49,
CFR Part 26 specifically prohibits DOT financial recipients from ignoring bona fide good .
faith efforts.
i
Page 9-23
LPP 01-04 March 15.2001
Local Assistance Procedurr nual Chapter 20
Deficiencies and Sanctions
CHAPTER 20 DEFICIENCIES AND SANCTIONS
CONTENTS
Section Subject Page Number
20.1 INTRODUCTION ......................................................................................... 20-1
20.2 DEFICIENCIES ........................................................................:.................. 20-1
Procedural Deficiency ......................................................... 20-1
Major Project Deficiency ..................................................... 20-2
Unrecoverable Project Deficiency ...................................... 20-3
20.3 SANCTIONS .......................................................................................... ...:. 20-6
2.0.4 LOCAL PROGRAMS DISPUTE RESOLUTION PROCESS .......................... 20-7 .
Dispute Resolution Procedures ............................ . 20-7
Implementing the LPDRC's Decision ............................... 20-8,
February 1, 1998
61-.2-7
I
Chapter 20 t Assistance Procedures Manual
Deficiencies and Sanctions
+ Continued submission of PS&E Certifications that contains errors and omissions (see
Chapter 12,"PS&E;' in this manual).
• Continued submission of Right of Way Certifications that contains errors and
omissions (see Chapter 13 "Right of Way," and Chapter 14, "Utilities," in this
manual). .
• Continued submission of Local Agency Contract Award Checklist that contains errors
and omissions (see Chapter 15, "Advertise and Award Project," in this manual).
• Failure of the local agency to comply with their approved DBE program, particularly
with regard to policy, utilization of DBEs, monitoring and reporting (see Chapter 9,
"DBE,"in this manual). --
MAJOR PROJECT DEFICIENCY
A Major Project Deficiency is defined as an error of commission or omission which
violates Federal or State law or regulation, and that if uncorrected, would prevent Federal
or State participation in all or a portion of the project
Examples of some of the most common (found by Caltrans and FHWA) of Major . .
Project Deficiencies(Federal) are:
• Failure to initiate an environmental reevaluation after environmental clearance, when
changes in the scope of the project are proposed, or when new project environmental
impacts surface due to changes in law or investigations, shall result in loss of all or
part of the Federal funding for the project (see Chapter 6, "Environmental
Procedures,"in this manual).
• Failure to fulfill mitigation commitments and adherence to restrictions in the
environmental document shall result in a loss of all or part of Federal funding for the
project(see Chapter 6,"Environmental Procedures,' in this manual).
• Right of Way activities in violation of the Uniform Relocation Assistance and Real
Properties Policy Act, as amended, can result in all or partial loss of project funding.
Project finding losses can result even if there are not Federal funds in Right of Way
but only in other phases(see Chapter 13,"Right of Way,"in this manual).
• Force Account/Day Labor work, without proper justification, is not reimbursable (see
Chapter 12,`TS&E,"in this manual).
• For Emergency Relief projects, billing for emergency opening but actually doing
permanent restoration work can result in a loss of all or part of the.Federal funding for
the project (see Chapter 11, "Disaster Assistance," in the Local Assistance Program
Guidelines).
Page 20-2
March 28,2003 LPP 03-01
Qi-29
Local Assistance Procedw, ; anual Chapter 20
Deficiencies and Sanctions
• In the absence of prior approval documentation., the use of publicly owned
equipment, mandatory use of borrow/disposal site, use of patented/proprietary
materials, use of warranty/guaranties, and use of a end cy-furnished materials, shall
make all or part of the construction phase ineligib 4eor
reimbursement with
Federal funds (see Chapter 12, "PS&E," in this manual).
• Failure to submit a "Material Certificate" shall result in loss of funding for the
construction phase. Failure to adequately document and address all exceptions to
the certification will result in all or partial loss of reimbursement. Failure to
implement an approved materials and testing program for the project will result in
the loss of Federal funds for the project (see Chapter 16, "Administer
Construction Project," and Chapter 17, "Project Completion," in this manual).
• Failure to enforce the Contract. DBE_provisions with regard to utilization,
substitution, or good faith determination and documentation will make all or part
of the construction phase ineligible for reimbursement with Federal funds (see
Chapter 9, "DBE," in this manual).
• Failure to maintain the completed project (roadway and appurtenances constructed
with Federal funds and/or mitigation sites) or portions of the project shall result in
repayment of all or a portion of the Federal reimbursement. (see Chapter 18,
"Maintenance," in this manual).
Examples of some of most common (found by Caltrans) Major Project
Deficiencies (State) are:
• RTPAs that use Exchange funds for non-Article XIX purposes or for other than
projects will have to return the funds given to them (see Chapter 18, "Optional
Federal Exchange and State Match Programs," in the Local Assistance Program
Guidelines).
• Counties that use Exchange funds for other the non-Article XIX purposes will
have to return the funds given to them (see Chapter 18, "Optional Federal
Exchange and State Match Programs," in, the Local Assistance Program.
Guidelines).
• On EEM projects, reimbursable costs not invoiced for by the end of the first State
fiscal year following the fiscal year during which funds allocated by the CTC will
not be eligible for reimbursement (see Chapter 20, "EEM," in the Local Assistance
Program Guidelines).
UNRECOVERABLE PROJECT DEFICIENCY
An Unrecoverable Project Deficiency is defined as "a deficiency of such magnitude as
to create doubt that the policies and.objectives of Title 23 of the USC (or other
applicable Federal codes) will.be accomplished by the project," (quote from "PS&E
Certification") and the project has proceeded to the point. that the deficiency cannot
be corrected. This level of deficiency shall result-in.the_withdrawal of all or a portion.
of the.Federal and/or State funds from the project.
Examples of some of the most common (found by Caltrans and FHWA;
Unrecoverable Project Deficiencies (Federal) are:
Page 20-
February 1, 199
Bl��9
Barbera Lynch - A word of caution _ --� _LPa
From: <John_Smida@dot.ca.gov>
To: <ddelzeit@pismobeach.org>, <Ditas@prcity.com>, <Dffirma@sbcglobal.net>,
<skahn@atascadero.org>, <TKorman@arroyogrande.org>, <rlupinek@garingtaylor.com>,
<bob@themackcompany.com>,<Blyncn@slocity.org>, <dohalloran@co.slo.ca.us>,
<kapence@charter.net>,<JiIIP@jlwa.com>, <rgaglione@co.slo.ca.us>, <Dspagnolo@arroyogrande.org>,
<ruder@co.slo.ca.us>,<JWalter@slocity.org>
Date: Wed, May 5, 2004 9:54AM
Subject: A word of caution
We just had a Local Agency sanctioned by FHWA for not complying with DBE by
not showing a Good Faith Effort.
The Agency lost some of the.project funding.They could have lost all of
it.
Plan on FHWA looking at some part of.your projects.
John Smida
Local Assistance Engineer
Qi-3o
IIIIYIIIIII�I4II
council memoRAnbum
c`it.';o�,a�n Luis Dais di: c1inln,istaatton ment
DATE: May 18, 2004
TO: City Council RED FILE
MEETING AGENDA
FROM: Ken Hampian, CAOq DATE
ITEMSUBJECT: Business Item 2: Foothill Bridge Contract Award
Recommendation:
Continue Business Item 2 for consideration at a special Council meeting, to be held either on
Friday,May 21 or Tuesday, May 25, 2004, as discussed further below..
Discussion
As explained in my May 17 memorandum, John Madonna Construction (JMC) has sought an
administrative reconsideration hearing pursuant to federal regulations following staffs
determination that JMC`s bid did not meet the City's bid requirements. I designated Utilities
Director John Moss to serve as an independent hearing officer in this matter, since he has had no
involvement in the bid of the project. The hearing was held this afternoon. At the conclusion of
the hearing, Mr. Moss, in consultation with the City Attorney, has concluded that he needs added
time to review the material associated with this matter and to consider the testimony provided
during the administrative hearing: Therefore,I am recommending continuation of this item this
evening.
However, the award of the Foothill Bridge project is extremely time sensitive and should not be
delayed more than one week. Therefore,I am proposing the following options for setting a
special Council meeting:
1. Friday, May 21"at a time convenient to the City Council (e.g. 10:00 a.m. or 11:00 a.m.?).
While I will be unavailable on this day due to a commitment to the City of Santa Maria,
the City Attorney and other staff members are well versed in this matter and will be
prepared to address the issues with the Council.
2. Tuesday, May 25`s either before or after the study session regarding Palm-Nipomo. The
study session is scheduled from 11:30 a.m. to 1:30 p.m., with lunch provided at 11:30.
Therefore,, the special session could beheld at perhaps 10:45 am. or 1:45 p.m.
I will be seeking Council direction regarding these options under Item 2 of tonight's agenda.
Whichever date is chosen, staff shall provide the results of the hearing and any follow-up
recommendation at least 24 hours before a May 2L me ting and earlier, in the case of a May 25
meeting. +l � -
COUNCIL
RECEIVED J CDD DIR CAO CD DIR
i ACRO FIRE CHIEF
MAY -18 2004 ! ATTORNEY PW DIR
CLERK'ORIG POLICE CHF Foothill Bridge continuation
DEPT HEADS
SLO CITY CLERK AEC DIR UTIL niR (3�"3/
RED FILE
MEETING AGENDA
��i!iiiii���llilll�llll11°vl�llll y� m g� y� s-/Ir/o
C0u1 cit 1 1 eMORA1 N g ITEM # �s2
cit ro` ;sin Gui§ oBis" o. ac�mimstrzton dutmE't`rtk, _ to .> �. >
y iYf
DATE: May 17, 2004
TO: City Council
FROM: Ken Hampian, CAO
SUBJECT: Foothill Bridge Award
Attached is the agenda report to award a construction contract for the Foothill Bridge project to
Whitaker Contractors. As mentioned in a communication last week, however, John Madonna
Construction is protesting their disqualification and the proposed award to Whitaker(the agenda
report explains why his bid was disqualified). Staff has offered an administrative meeting and
review to hear the company's concerns tomorrow, May 18`x: If the company avails themselves
of this procedure, staff will advise Council of the outcome via a"red-file" communication.
03UIL _ CDD DIR .
7 CAO L FIN DIR
ACAO C FIRE CHIEF
C] ATTORNEY C PW DIR
11 CLERK,ORIG POUCE CHF
E' DEPT HEADS REO DIR
------ UTIL DIR
- HR DI
G:\Council Support&Corresp\CAO MemosToothill Bridge Award.DOC
QI-3Z
ntinued to Mayy25 , 2004
council Mm
a ac,Enba Rcpopt. ,�N
Bus . >
CITY OF SAN LUIS OBISPO
FROM: Michael D. McCluskey, Director of Public Works
Prepared By: Barbara Lynch, Civil Engineer
SUBJECT: FOOTHILL BRIDGE REPLACEMENT
CAO RECOMMENDATION
L Award the construction contract for the Foothill Bridge replacement to Whitaker Contractors
in the amount of $4,198,283.90 per Specification No. 90197D and authorize the Mayor to
execute an agreement with them.
2. Amend the project budget as follows to fund the contract award: $1,058,200 from federal
bridge replacement funds (HBRR) and the transfer of$2644600 from completed and deleted
capital improvement plan (CIP) projects in the Capital Outlay Fund.
3. Transfer the remaining balance from completed and deleted projects in the Capital Outlay Fund
of$18,000 to the CIP Reserve.
REPORT-IN-BRIEF
On February 17, 2004, the Council authorized staff to advertise for bids for the Foothill Bridge,
Replacement Project: Bids for the project were opened on May 4, 2004. Three bids were received.
As.summarized below, all bids were over the Engineer's Estimate by over $1,000,000 and we
recommend rejecting the low bid due to non-compliance with federal disadvantaged business
requirements. The second low bidder was approximately$150,000 higher than the low bidder, and
the high bidder was another$300,000 more than that.
Bid summiuy
John Madonna Construction(non-responsive) $4,053,422
Whitaker Contractors 4,198,284
R.Burke Construction 4,493,978
As discussed in greater detail below, these results produced two problems: determining the
lowest responsible bidder and funding the increased cost over the engineer's estimate. We
recommend rejecting the bid from John Madonna Construction as non-responsive; and funding
the"non-grant" shortfall of$264,600 from completed and recommended deleted projects.
DISCUSSION
AwardDetermination
Typically, construction contracts are awarded to the lowest bidder. The contract actually states
that the award will be made to the lowest responsible bidder whose proposal complies with all
the requirements prescribed. In the case of the Foothill Bridge, the project required the
�1-33
Foothill Bridge Replacement Page 2
Contractor's proposal to include work equal to a minimum of 2% of the contract cost to be
completed by Disadvantaged Business Enterprise (DBE) contractors. If the contractor was
unable to meet that 2% goal, they must provide evidence of a good faith effort to meet the goal.
Good faith effort documentation is then reviewed by the City to determine if indeed the
appropriate level of effort was made.
In lieu of having to submit DBE goal and good faith effort information at the time of the bid
opening, bidders are allowed to submit their documentation to 4:00 P.M. on the fourth day
following the bid opening,. This four day allowance is standard language used for federal
contracts and is provided to the City by Caltrans. The low bidder turned their paperwork in
about 10 minutes before the deadline. Their DBE paperwork showed.participation over the 2%
goal; however when staff completed verification of the listed DBE's, one of them was not a
certified DBE. This dropped the contractor's percent of DBE usage below the 2% goal. At the
time the DBE paperwork for the low bidder was submitted, no documentation from the DBE
contractors was submitted to confirm their intent to participate as.required, and no information
was submitted to show a good faith effort had been made to obtain DBE contractors. The
contractor to whom the City makes the award must show the goal was met or that a good faith
effort was made to do so. Failure on the part of the City to follow these guidelines can mean the
loss of federal funding. The low bidder turned in a new list of DBE's showing compliance with
the goal; however, this revised DBE participation paperwork was submitted after the deadline
and so does not comply with the requirements of the contract documents. The next lowest bidder
obtained a 5.8% DBE usage and included copies of the quotes supplied by the.DBE's to confirm
their intent to participate. Staff is recommending award to the second low bidder due to the low
bidder's non-responsiveness to the requirements of the contract documents.
Bid Evaluation: Why Is It So Much Higher Than Our Estimate?
While this project is largely federally funded, the City still contributes a 20% match to the 80%
federal funds. Staff undertook a review of the bids to determine where the largest discrepancies
were between the Engineer's Estimate prepared by the consultants and the bids we received.
Those numbers were compared to other bridge projects recently bid, and to bid item cost data for
last .year, compiled by Caltrans. The Caltrans cost data is a compilation of standard highway
work items average bid prices during the previous year.
Staff identified those items that.were very high in all three bids for purposes of the comparison.
The review resulted in identifying the main "culprits" in the bidding which drove the price
beyond the Engineer's Estimate. The main contributors are the bridge concrete and steel and the
disposal of contaminated soil from the excavation. Rock slope protection was also somewhat of
a high cost item. Water fund related costs were below the Engineer's Estimate.
Staff was made aware of the spiraling cost of steel after approval of the project for bidding.
Informal discussion with contractors indicates the cost of steel is rising on a nearly daily,basis
and is apparently the result of activity in China. The bid item for reinforcing steel accounts for
about $250,000 of the cost difference, with another $100,000 in the bridge concrete. The pre-
cast deck units are also higher than anticipated by about $60,000, most likely because of the steel
they contain. Bids for the bridge concrete averaged 30% less than those prices bid for the Coon
Creek Bridge project and 25% more than the price for a recently bid Paso Robles bridge project.
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Foothill Bridge Replacement Page 3
Comparing the price bid for reinforcing steel, the costs on the Foothill bids averaged 200%
higher than both the Coon Creek and Paso Robles projects, both having bid openings in the latter
part of April this year.
The review also included a look at the items that were particularly high for any single contractor.
This can provide indications if a particular bid is weighted too heavily to one item or another
which could result in a higher project cost by going with the apparent low bidder. It can also
identify bid proposals that weight the dollar costs more heavily toward items that are to be
completed early on. After reviewing the bids, the most likely cause of the very high numbers
presented below was the need to include the cost for temporary shoring within the other bid
items. The designers agreed with staff's assessment that—this work may have been
underestimated. Based on the bid analysis, it appears contractors may have been estimating as
much as $500,000 for the temporary shoring.
As mentioned above, the cost of disposal of hazardous materials was one of the items that was
significantly higher than the Engineer's Estimate for all the bidders; however, the low bidder's
price was $365,000 higher than the Engineer's Estimate and their unit price was two to three
times higher than the other two bidders.
The low bidder was also $550,000 higher than the Engineer's Estimate for roadway excavation,
with the unit price being five to seven times higher than the other bidders. Mobilization costs in
the low bidder's proposal were $240,000 less than the other bidders, which could be an
indication that mobilization costs have been spread into unit costs.
In the case of the existing culvert removals, the highest bidder's proposal was, on average,
$550,000 higher than the Engineer's Estimate. Staff is assuming that this reflects the costs of
the temporary shoring'. This would make sense because the temporary shoring would be needed
for the,culvert removal.
The second low bidder's costs were generally either in line with other bidders or the Engineer's
Estimate.
Comparison of a sample of the bid items to the Caltrans,cost data revealed that about 50% of the
items had an Engineer's Estimate below the average bid experienced by the State and the
remaining 50% were either at or above the State's average. Substituting Caltrans average costs
for the Engineer's Estimate figures results in a difference of about$200,000. In other words, had
the design consultant relied on Caltrans data to generate their estimate for the large bridge items,
the bids would still have been over the estimate by$800,000.
Summary. The conclusion is that costs are generally higher for construction than anticipated by
the designers and that those costs are spread throughout the project. While other factors are
involved, key drivers were steel and concrete for the bridge deck, disposal of contaminated soil
from the excavation, rock slope protection and temporary shoring.
Foothill Bridge Replacement Page 4
FISCAL IMPACT
The follow summarizes current and proposed project costs and funding sources for the
construction portion of the project. As reflected in this summary, we will need to fund an
additional $264,600 from the General Fund. As with the Damon Garcia project, the CAO has
directed that staff identify ways to fund such costs from existing projects rather than
recommending use of the General Fund Reserve. This is because the CAO recommends
"protecting" the reserve for use in coping with the significant fiscal challenges expected over the
next two years given more losses to the State, Mardi Gras costs and other anticipated revenue
and cost difficulties. We recommend funding the additional Foothill project costs with transfers
from completed CEP projects along with selected projects recommended for deletion at this time.
As discussed below, recommended "close-outs" total $282,600. After funding the Foothill
Bridge shortfall, we recommend transferring the balance of$18,000 to the CIP Reserve.
Construction Cost Summary
Current Proposed Variance
Construction 3,000,000 4,198,300 1,198,300
Contingencies 300,000 424,500 124,500
Total $ 3,300,000 $ 4,622,800 $ 1,322,800
Construction Funding Summary
Current Proposed Variance
Capital Outlay Fund 3,247,200 4,570,000 1,322,800
HBRR Grant 2,597,800 1 3,656,0001 1,058,200
General Fund 649,4001 914,0001 264,600
Water Fund 52,800 52,800 0
HBRR Grant 42,200 42,200 0
Water Revenues 10,600 10,600 0
Total $ 3,300,000 $ 4,622,800 $ 1,322,800
Funding Sources
CIP Review Committee Evaluation:Fiscal Status of Current CIP Projects
As part of the City's regular budget preparation process, we take a close look at the fiscal status
of all current CIP projects in order to surface funding that may be available in funding other
operating or capital needs.
This review has two components:
1. Projects that have been completed, all costs have been charged and they are under
budget. In this case, there are no policy or fiscal impacts associated with closing the projects
and "unlocking" the remaining budget balances for other purposes. This is the "low hanging
fruit" in the budget review process.
'raj--3
Foothill Bridge Replacement Page 5
2. Projects that have not yet been initiated, funds are uncommitted and should be
reconsidered for funding given higher priorities since they were approved. Deleting
"lagging"projects is a tougher call. After detailed review by the CIP Review Committee and
the Budget Review Team, the CAO typically makes recommendations to the Council
regarding deletion of projects as appropriate as part of the Preliminary Budget.
For projects in the first category, this is largely a technical and analytical exercise to ensure that
all costs.have in fact been paid, and that there are no outstanding encumbrances or other fiscal
commitments. As such, there are no policy impacts associated with this review. However, as
noted above, this is not the case for projects in the second category: deleting previously approved
projects is solely a Council decision to make, and is typically surfaced as part of the budget
process.
For these reasons, the CIP Review Committee had already been tasked with performing this
review as part of the 2004-05 budget process. The initial results of this effort were presented to
the Council on May 4, 2004 as part of the report on the Damon-Garcia sports fields funding
shortfall. At that time, we identified $241,600 in funding that could be made available from
completed projects, which the Council allocated as follows:
1. $200,000 to the Damon-Garcia sports fields project.
2. $41,600 to the CIP.Reserve, which had no funding at the time, in better positioning us for the
2004-05 budget process. (Note: The May 4, 2004 report incorrectly showed a.slightly higher
number of$45,200 due to a mathematical error.)
As noted in the May 4, 2004 report, given the need to identify funding options for the Damon-
Garcia sports fields, the CIP Review Committee "fast-tracked" its review of the "completed"
projects category. However; there were several completed projects where more research was
needed to confirm that all costs have been paid before closing current budget balances; and the
Committee needed more time to complete its review of lagging projects.
This subsequent analysis is now completed, and the following summarizes the CIP Review
Committee's findings and recommendations for CIP project balances that should be closed and
made available for other purposes:
Foothill Bridge Replacement Page 6
Supplemental CIP Fiscal Status Review Summary
Project Expended/ Balance
Budget Encumbered Remaining
Completed C)P Projects 115,480
Laguna Hills Park 188,100 185,588 2,512
Tree Maintenance: South Higuera 32,000 24,249 7,751
New Sidewalk Construction 220,000 208,095 11,905
Creekwalk Public Art 20,600 17,182 3,418
Railroad Multi-Modal Transportation Center(1) 744,700 -- 670,768 73,932
Downtown Transfer Center(1) 130,000 114,038 15,962
Recommended Deletions 167,128
Laguna Lake Park(2) 67,058 40,000 27,058
Records Management System 123,973 41,303 82,670
Public Art 57,400 - 57,400
Total $ 282,608
1. Only reflects General Fund share of project costs:there were also significant grant funds.
2. $40,000 designated for log barrier replacement.
As noted above, projects in the "completed" category are relatively straightforward: since the
project is completed, there are no policy impacts associated with closing project balances and
making them available for other purposes. The following summarizes the status of the three
projects that are not completed,but we recommend closing their budget balances at this time:
1. Laguna Lake Park. The original budget workscope envisioned making "simple"
improvements that would not be affected by future dredging plans or require Army Corps
approval. At this point, based on improvements already made and the planned replacement
of log barriers, there are no "simple" improvement projects remaining that can be designed
and built in the near future.
2. Records Management System. Given other priorities, and in light of our plans to
implement improvements in the near future in our internal network that will make finding
electronic documents easier (which will meet many - but not all - of the record management
needs that this project was intended to address), we recommend deleting the remaining
budget for this project.
3. Public Art. On October 21, 2003, the Council approved "project-specific" public art
funding based on 2003-05 Financial Plan allocations ($43,100 over two years) and developer
in-lieu contributions ($58,900). Including prior year allocations, the following summarizes
the funding status of public art projects:
3�'
Foothill Bridge Replacement Page 7
Project
Budget
Continued Funding Recommended 135,000
Mitchell Park 12,900
Railroad Museum Roundabout 19,000
Marsh Street Fountain 40,000
Damon-Garcia Sports Fields 40,000
Therapy Pool 23,100
Recommended Deletions 57,400
Santa Rosa Park 18,500
Laguna Lake Park 10,000
Police Station 18,900
Sinsheimer Park 10,000
Total $ 192,400
As reflected above, there is $192,400 available in public art funding that is not yet formally
committed. Of this amount, we recommend retaining$135,000 for the following reasons:
■ Mitchell Park. The artwork has already been selected and a formal contract will be
coming forward soon. Given the significant work that has been invested to-date, we
recommend going forward with this project.
■ Railroad Museum Roundabout. Again, we have already invested significant work on
this to-date, and are ready to issue a formal request for proposals. Moreover, this is an
excellent, highly visible location for public art, at a site where significant public
improvements were recently made.
■ Marsh Street Fountain. This is a major entrance to the City and a highly visible
location.
■ Damon-Garcia Sports Fields and Therapy Pool. These are also highly visible locations
that tie to major City improvement projects.
■ Developer In-Lieu Contributions. Of the $135,000 we recommend retaining, $58,900 is
funded from developer in-lieu contributions: only $76,100 represents General Fund
resources.
We recommend closing balances for the other four projects (totaling $57,400) in light of
other City priorities, and the fact that from a workload perspective, we are not likely to make
any progress on these projects in the coming year any way.
Summary of CIP Fiscal Status Review
As part of its evaluation, the CIP Review Committee has identified $524,200 in CIP project
balances that should be closed and made available for other purposes as follows:
1. $200,000 to the Damon-Garcia sports fields (approved by the Council on May 4, 2004).
i
Foothill Bridge Replacement Page 8
2. $264,600 to the Foothill Bridge replacement project.
3. $59,600 to the CIP Reserve in better positioning us for the 2004-05 budget process ($41,600
from the May 4, 2004 review and another$18,000 from this one).
Grant Funding Approval
Staff has already notified CalTrans, who administers the funding for the federal bridge program,
of the increased costs. We will submit an increased cost request with an analysis of the bids to
receive the funding authorization. We do not expect any difficulties in being awarded the
supplemental funding of$1,058,200.
Potential Cost Reductions
1. Sale of the Temporary Bridges. Staff has been working with the California Men'-,9:C6 lony to
sell them one of the temporary vehicle bridges at the site. The City paid $98,000 for each of
the two bridges. Negotiations are underway with CMC to recoup that cost. The other bridge
is already slated for use at the golf course, where, in an emergency, it could be removed to a
needed site within the City. The pedestrian bridge was purchased with the grant money for
the Montalban Bicycle Bridge project currently under design and so will be used there.
2. Completing the Project in One Year. The other possible cost savings would be if the
contractor should determine that it is able to complete the project in a single year and
proposes a cost savings incentive to the City. Under this program, outlined in the contract
documents, a contractor can propose an alternative way to complete the project. The cost
savings is then shared evenly between the City and the contractor. This provides an incentive
to the contractor as well as cost savings for the City. We should know the status of this
option in about three weeks; and if we go forward with it, we will amend the contract as a
project change order.
Potential Cost Increases
There are two known risks for increased costs in this project:
1. Contamination. The contamination is not of a"pipeline" type and so we anticipate it will be
localized. There is believed to be a very old Union Oil line in the vicinity. Staff has notified.
the current owner and they have agreed to cooperate. If any City funds are spent on this
activity, we would expect to recover them.
2. Archeological. The only other potential area for cost increases that staff is currently aware
of is the discovery of archeological materials. If the find is significant, it could delay the
project, which would likely drive up the cost.
Foothill Bridge Replacement Page 9
CONCURRENCES
The Director of Finance & Information Technology and the CIP Review Committee concur with
this recommendation.
ALTERNATIVES
1. Reject Bids and Re-Bid This Year. The City has the option to reject all the bids and rebid
the project: Rebidding this year would delay the project into at least July 2004. Steel prices
would probably still be high and we would have lost a month of construction time in the
creek, which would, probably drive the construction costs higher.or put us at risk for the
project to need.a third construction season. That in turn could trigger additional.mitigation
requirements from regulatory agencies as happened on the Higuera Bridge project.,
2. Reject Bids and Re-Bid Next Year. We could delay rebidding until next year in the hopes
ahat,steel prices will come down and the general bidding climate would bd;more favorable for
the City. A delay such as this will require revisions to the City's.regulatory permits issued
for the project. . It also impacts the acquisition settlements underway. Certain property
owners impacted by the construction have already put into motion certain activities to
accommodate the effect of the project on their property. Costs are incurred and most likely,
those property owners will want the City to pay those costs. Even if the City were able to
defend against such a claim, money would be spent in our defense.
We do not believe that the City has a lot, if anything,. to gain by delaying the award of this
project.
ATTACHMENTS
Attachment 1 Bid Detail
Attachment 2- Agreement
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P l�h
Attachment
CITY OF SAN LUIS OBISPO
CALIFORNIA
AGREEMENT
THIS AGREEMENT, made on this day of 20_,by and between the City of San Luis Obispo,
a municipal corporation and charter city,San Luis Obispo County,California(hereinafter called the Owner)and
Whitaker Contractors Inc.(hereinafter called the Contractor).
WITNESSETH:
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
transportation services required to complete all the work of construction of
FOOTHILL BOULEVARD BRIDGE REPLACEMENT,SPEC NO.90197D
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 furnished and said work performed and
completed under the direction and supervision and subject to the approval of the Owner or its authorized representatives.
ARTICLE II, CONTRACT PRICE: The Owner shall pay the Contractor as full consideration for the faithful
performance of this Contract,subject to any additions or deductions as provided in the Contract Documents,the contract
prices as follows:
Relevant
P-F-S SP Unit of Estimated Item Price Total
Item No. Mote 1 Section Item Measure Ouanti in figures) in figures)
1 4-1.04 CONTRACT SUSPENSION LS 1 24000.00 $24,000.00
HAZARDOUS MATERIAL--HEALTH AND
2 5-1.09 SAFETY PLAN PREPARATION LS 1 1850.00 1,850.00
HAZARDOUS MATERIAL,-PRELIMINARY
3 5-1.09 SITE MONITORING DAY R 650.00 $5,200.00
HAZARDOUS MATERIAL--HEALTH AND
4 5-1.09 SAFETY PLAN IMPLEMENTATION DAY 8 2350.00 $18,800.00-
HAZARDOUS
18 800.00_HAZARDOUS MATERIAL--DISPOSAL OF
5 5-1.09 CONTAMINATED.MATERIAL M3 1520 97.00 $147.440.00
6 5-1.20 OFFICE TRAILER FOR ENGINEER LS_. 1 22000.00 M.000.00
7 10-1.11 TEMPORARY CREEK DIVERSION LS 1 26600.00 $26,600.00
5-1.16
8 F 10-1.08 ENVIRONMENTAL COMPLIANCE LS 1- 40000.00 $40.000.00
5-1.16 PREPARE WATER POLLUTION CONTROL
9 F ]0-1.09 PROGRAM LS. - t. 25000.00 $25,000.00
10 F 10-1.09. WATER POLLUTION CONTROL LS 1 9500.00. $9,500.00
1 I F 10-1.19 TEMPORARY RAILING PE K M 200 41.00 $8.20000.
12- S 10-1.13 CONSTRUCTION AREA SIGNS LS 1 .. 46000.0 6 OOD.00
10-1.15
13 1 S 1 10-1.16 1 TRAFFIC CONTROL SYSTEM LS 1 1 76000.00 76 000.00 c/
A'tachment 2---
Relevant Relevant
P-F-S SP Unit of Estimated Item Price Total
Item No. Note 1 Section Item Measure Ouantity (in figures) in figures)
14 S 10-1.20 TEMPORARY CRASH CUSHION MODULE EA 2 $5,000.00
15 10-1.27 REMOVE AND RELOCATE BUS SHELTER LS 1 3700.00 $3,700.00
5-1.15
16 F 10-1.23 BRIDGE REMOVAL CMP CULVERT) LS 1 150000.00 $150.000.00
5-1.15 REMOVE AND SALVAGE TEMPORARY
17 10-1.24 BRIDGES LS 1 25000.00 $25,000.00
5-1.15
18 10-1.21 CLEARING AND GRUBBING LS 1 20000.00 $20,000.00
19 10-1.28 . ROADWAY EXCAVATION M3 5100 18.50 $94.350.00
20 10-128 IMPORTED BORROW M3 1600 30.50 $48,800.00
21 S 10-1.29 EROSION CONTROL E D M2 610 7.00 $4,270.00
22 10-1.30 PLANTING LS 1 45000.00 $45.000.00
23 10-1.30 STREET TREE EA . . 13 650.00 $8,450.60
24 10-1.30 ESTABLISHMENT&MAINTENANCE EA 10 _ 1000.00 $10,000.00
25 P 10-1.50 350mm DUCTILE IRON PIPE.WATER MAIN M 59 600.00 $35,400.00
26 10-1.50 1 25mm AIR RELEASE VALVE ASSEMBLY EA 1 1000.00 $1.000.00
27 10-1.50 TEMPORARY BLOWOFF ASSEMBLY EA 4 2100.00 $8,400.00
28 I0-1.32 CLASS 2 AGGREGATE BASE M3 280 135.00 $37,800.00
29 10-1.33 ASPHALT CONCRETE E B TONNE 1240 85.00 $105,400.00
30 1 F 10-1.34 1 CONCRETE PAVEMENT BUS PAD M3 20 650.00 13 000.00
REMOVE AND RELOCATE MASONRY
31 10-1.25 BLOCK WALL M 8 980.00 $7,840.00
450mm RCP(CLASS III,RUBBER GASKET
32 P 10-1.51 JOI M 1-1- 470.00 $5,170.00
900mm RCP(CLASS III RUBBER GASKET
33 _P 10-1.51_ JOINT) M 14 490.00 $6.860.00
1200mm PRECAST CONCRETE PIPE
34 P 10-1.51 MANHOLE EA 1 3000.00 $3,000.00
35 P 10-1.51 CATCH BASIN EA 2 5500.00 $11,000.00
36 F 10-1.49 MINOR CONCRETE BUS SHELTER PAD M2 6 650.00 $3,900.00
MINOR CONCRETE(CURB,GUTTER,AND
37 F 10-1.49 SIDEWALK) M 107 100.00 $10,700.00
38 F 10-1.49 MINOR CONCRETE DRIVEWAY M2 31- 600.00 $18.600.09
39 F 10-1.49 MINOR CONCRETE CURB M 28 83.00 $2,324.00
40 P-S 10-1.52 METAL BEAM GUARD RAILING M 19 275.00 $5,225.00
TERMINAL ANCHOR ASSEMBLY(TYPE
41 . P-S 10-1.52 _S EA 1 1600.00. 1 $1.600.00
42 P-S 10-1.52. TERMINAL,SECTION PE.B EA 1 760.00 $760.00
43 P-S 10-1.52 TERMINAL SECTION PE C EA 3 795.00 $2,385.00
44 S 10-1.53 THERMOPLASTIC PAVEMENT MARKING M2 22 65.00 $143000
-2- �3
A techment.�
Relevant
P-F-S SP Unit of Estimated Item Price Total
Item No. (Notel) Section Item Measure Quantity (in fi res in fi res
45 S 10-1.54 .PAINT PAVEMENT MARKING M2 7 45.00 $315.OD
THERMOPLASTIC TRAFFIC.STRIPE
46 S 10-1.53 DETAIL 9 M 613 6.00 $3.678.00
THERMOPLASTIC TRAFFIC STRIPE
47 S 10-1.53 DETAIL.22 M 101 6.00 $606.00
THERMOPLASTIC TRAFFIC STRIPE
48 S 10-1.53 DETAIL 32 M 1 134 6.00 $804.00
THERMOPLASTIC TRAFFIC STRIPE
49 S 10-1.53 DETAIL 38 M-- 30 6.00 $180.00
THERMOPLASTIC TRAFFIC STRIPE
50 S 10-1.53 DETAIL 39 M 516 6.00 $3,096.00
THERMOPLASTIC TRAFFIC STRIPE
51 S 10-1.53 DETAIL 39A, M 76 6.00 $456.00
52 14-FR-15 FEDERAL TRAINEES LS 1 1.00 $1.00
53 F 10-1.28 STRUCTURE EXCAVATION BRIDGE M3 2620 38.00 $99,560.00
54 F 10-128 STRUCTURE EXCAVATION PED M3 1280 60.00 $76,800.00
55 F 10-1.28 STRUCTURE BACKFILL BRIDGE M3 2350 95.00 $223,250.00
56 P 10-1.35 FURNISH STEELPILING HP 310X125 M 635 113.00 $71,755.00
57 S 10-1.35 DRIVE STEEL PILING(HP 310X125) EA 184 2000.00 $368,000.00
STRUCTURAL CONCRETE,
58 F 10-1.38 BRIDGE FOOTING M3 301 800.00 $240,800.00
59 F 10-1.38 STRUCTURAL CONCRETE BRIDGE M3 489 975.00 $476.775.00
STRUCTURAL CONCRETE,RETAINING
60 F 10-1.38 WALL M3 312 885.00 J276.120.00
FURNISH PRECAST PRESTRESSED
61 P-F 10-1.37 CONCRETE SLABS PE SIV M2 352 616.00 $216,832.00
ERECT PRECAST PRESTRESSED
62 S I0-1.37 CONCRETE DECK UNITS EA 1 20 3500.00 S70,000.00,
63 S 10-1.40 JOINT SEAL PE A M 63 150.00 $9.450.00
64 P-F-S 10-1.41 BAR REINFORCING.STEEL BRIDGE KG 80100 4.00 $320,400.00
65 5 10-1.42 1 DECK SEAL M2 310 135.00 $41,850.00
66 P-F-S 10-1.43 MISCELLANEOUS METAL BRIDGE KG 1010 12.35 $12,473.50
ROCK SLOPE PROTECTION(I TON,
67 1 10-1.47 METHOD A) M3 365 90.00 $32.850.00
ROCK SLOPE PROTECTION(1/4 TON,
68 10-1.47 METHOD.B)__ M3 810 100.00 81 000.00
CONCRETED-ROCK SLOPE PROTECTION
69 10-1.47 1/4TON METHOD.A M3 275 170.00 $46,750.00
70 ._10-1.47 ROCK SLOPE PROTECTION FABRIC M2 1460 $12.045.00
71 10-1.48 STREAMBED AGGREGATE GRAVEL M3 400._ 32.00
$52,800.00
72 F 10-1.44 CONCRETE BARRIER PE 26 M 31 158.00 $4,898.00
73 P-F-S 10-1.46 TUBULAR HANDRAILING M 31 175.00 5,425.00
[3 i-S/ly
3 '
� 1
Attachment
Relevant
P-F-S SP Unit of Estimated Item Price Total
Item No. Note 1 Section Item Measure Ouantitv (in fi res in 6 res
74 F 10-1.45 CABLE RAILING M 28 84.30 $2,360.40
75 1 10-1.06 MOBILIZATION @ 10% . LS 1 300000.00 $300,000.00
(Note 1) P-Denotes Partial Pay;F-Denotes Final Pay;S-Denotes Specialty Item
BID TOTAL:,%4_199,283-90
Payments are to bemade to the Contractor in accordance with and subject to the provisions embodied in the documents
made a part of this Contract -
Should any dispute arise respecting 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 conclusive.
ARTICLE III,COMPONENT PARTS OF THIS CONTRACT: The Contract 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 for 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 Bonds.
9. Insurance Requirements and Forms.
ARTICLE IV. It is further expressly agreed by and between the 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 an acceptance of the said terms of said proposal conflicting herewith.
IN WITNESS WHEREOF,the parties to these presents have hereunto set their hands this year and date first above
written.
ATTEST: CITY OF SAN LUIS OBISPO,
A Municipal Corporation
City Clerk David F.Romero,Mayor
APPROVED AS TO FORM: CONTRACTOR
WA
an P.Lowell Whitaker Contractors Inc.
City Attorney Kathy Whitaker,CFO
FROM GEPALD C WEAVER LAW CORP FAX NO. 559 642-2707 MBu. 24 2004'01:51PM PI
POST' OFFI('I: BOX 404
GFRALL) G. WEAVER BASS IAKL CALIVUHNIA 93604
__ "l EL%FriONr: (559)641.3412
(;h8AU)C'..WEAVFR 441A W FAX: (559)642.2707
/COUNCIL TCDD DIR
2-C
�-' AO �=1N DIR
,?-ACAO ,L'FIRE CHIEF RECEIVED
,0'ATTORNEY DPW DIR
May 24 2004 ,9rCLERK,ORIG ZPOLICE CHF MAY 2 4 2004
110 T EADS �REEC DIR Via f csimile
•� f UTIL DIR 805/781-7109 SLO CITY CLERK .
DIR
Citv Council - - --
City of San Luis Obispo
879 Mono Street
San Luis Obispo, CA 93401
Re: John Madonna Construction RED FILE
Bid on Foothill Bridge Improvement project - MEETING
� AGENDA
Dear Mr. Mayor and members of the City Council: DATE_—lst�,I
Our firm represents John Madonna Construction,who was the low bidder by a
substantial amount on the above referenced project.
After the bids were opened on May 4. 2004 one of your staff members from the
City Engi veering Department wrote a letter to Mr. Madonna stating that he had until May
10, 2004 to provide sufficient documentation to establish that he met the affirmative
action goals established by the City for this contract,which was two percent (211o)of the
contract price, or approximately $81,000.00. In response to this request Mr. Madonna
established that among his listed subcontractors submitted at the time of the bid he had
listed three subcontractors among the eight listed that together comprised a total of
$272,492.00. This is approximately six and one-half percent(6 'h%)of the contract
price, thereby greatly exceeding the goals. The fact that he listed these subcontractors as
a required part of his bid is extremely important to your determination in this matter.
The Subletting and Subcontracting Fair Practices Act(Public Contracts Code
§4100 et. seq.)requires the prime contractor, at the time of his bid, to list each
subcontractor who will perform subcontract work in excess of one-half of one percent of
the prime contractors total bid_ Public Contracts Code§4107 prohibits the prime
contractor from substituting any person as a subcontractor in place of the subcontractor
listed in the original bid unless the awarding authority consents to the substitution. Mr.
Madonna has requested no substitution and we know of no reason that would provide
grounds for such a request. Therefore,by listing these DBE subcontractors Mr_Madonna
as a matter of law committed to performance of that portion of the prime contract by
those subcontractors,thereby establishing conclusively that he has met or exceeded the
affirmative action goals established by the City for this contract. In fact he exceeded
these coals by a greater factor than either the second or third lowest bidders.
FROM 5ERALD C LIEAUER LAI-[ CORP = FAX NO, 559 642-2787 May, 24 2004 01:52PM P2
City Council
May 24, 2004
Pagc 2
Notwithstanding this irrefutable evidence of compliance; the staff has determined
that Mr. Madonna's bid should be deemed by the Council to be"nonresponsive"on the
grounds that all of the information requested was not submitted until May 14, 2004, by
my letter to your City Attorney of that date enclosing copies of the listed DBE
subcontractors actual quotes,totaling$272, 492.00. Therefore, opines the staff, Mr.
Madonna failed to comply with the federal requirements applicable to this project found
m49 Code of Federal Regulations§26.53- Section 26.53(a)provided in pertinent part as
follows:
"(a)When you have established a DBE contract goal,you
award'the contract only to a bidder/offerer who makes good faith
cffort to meet it. You must determine that a bidder/offeror has made
g�fait}Lefforts if the bidder/offeror does either of the following
(1) Documents that it has obtained enough DBE participation
to meet the goal, or
(2) Documents that it made adequate good faith efforts to meet
the goat even though it did not succeed in obtaining enough
DBE participation to do so." (Emphasis added)
Mr. Madonna documented by irrefutable evidence that he obtained enough DBE
participation to not only meet, but to greatly exceed,the affirmative action goals
established by the City for this project. Under the applicable federal regulation quoted
above that is all he was required to do.
Section 26.53(bx3)(ii)only requires that the bidder establish he has met the goals
prior to award of the contract. By virtue of the requirements of The subletting and
Subcontracting Fair Practices Act, Mr. Madonna established that he had met the goats
prior to award of the contract,which is all that is required by the applicable federal
regulations. The fact that he did not supply all of the backup information requested by
staff until May 14, 2004 is immaterial- To employ the draconian punishment requested
by the staff for such an immaterial reason-would violate the purpose and intent of the
applicable federal regulations. Section 26.53(d)(1)required; as part of the
reconsideration required to be undertaken by the City before determining whether or not
the bidder has met the goals,that the bidder be given an opportunity to provide written
documentation concerning the issue of'whether it-'met the goal. If the bidder met-the,
goal, the federal regulations require nothing further on the issue of whether or not he
made"good faith"efforts io meet the goal. Under the express provisions of the cited
federal regulation, once the bidder has established that he metthe goal no further inquiry
FROM GERALD C WEAVER LAW CORP i FAX NO. 559 Gd2-2707 M? .. 24 2004 01:53PN P3
City Council
Ma}'24, 2004
Page 3
on the issue of"good faith" is relevant or material or required to be undertaken (49 CFR
26-53(a)(1).
Lastly, the courts have applied the doctrine of"substantial compliance" to matters
such as this. Cal-Air Conditioning Inc v Auburn Union School District (1993)21 Cal.
App. 4t'655, 26 Cal. Rptr. 2w 703. The Cal-Air Conditioning Court held that a bidder
could not be deemed to have failed to comply with The Subletting and Subcontracting
Fair Practices Act simply because he failed to give written notice required by the statute,
when he in fact rave telephonic notice. The Court held that the statute requiring
affidavits was not mandatory, but directory only,and that the issue was whether or not he
in fact proved what he had to prove, not the manner in which he did prove it. Under the
test Iaid down by the Cal-Air Conditioning Court Mr. Madonna has substantially
complied with the City's requirements concerning the information provided and the time
within which it is to be provided and has expressly and fully met the letter of the federal
regulations applicable to this case. irregularities in the contracting process, if any exist,
do not invalidate the bid if the irregularity does not materially effect the proposal,
Menefee v. Cog=of Fresno(1985) 163 Cal. App. 3'd 1175,210 Cal. Rptr. 99.
Although most California affirmative action programs were made unlawful by the
adoption of Proposition 209 in 1996, affirmative action programs may still be pursued if
necessary to maintain eligibility for federal funds (Cal Constitution, Article 1, Section
31(a)) However, the requirement of competitive bidding and the award of the contract to
the lowest responsible bidder is an important public policy which the courts have held are
required to guard against favoritism, improvidence, extravagance,fraud or corruption,
aad to prevent the waste of public feuds_ Such requirements obtain the best economic
result for the public and stimulate advantageous marketplace competition,Domar Electric
vL Cily o Los Angeles(1994)9 Cal. 4`s 161,.173, 36 Cal. Rptr. 2°521.
To avoid an award to the low bidder the public entity must find that the bid is not
responsive or that the low bidder is not responsible. Effective January 1, 2000,the
legislature defined'responsible bidder"as a bidder who has demonstrated the attributes
of trustworthiness as well as quality, fitness, capacity and experience to satisfactorily
perform a public works contract(Public Contracts Code §1103).
The staff does not contend that Mr.Madonna's bid was not responsive or that Mr.
Madonna is not a responsible bidder. What the staff proposes is simply that the policy
requiring competitive bidding and award of the contract to the lowest responsible bidder
be ignored solely because he did not"timely" comply with post-b' o eriinr,�rocedures
imposed by the city to insure that any bid accepted either met the city's affirmative action
goals or the bidder made a"good faith"effort to do so. By virtue of The Subletting and
Subcontracting Fair Practices Act the city was assured at the time of the bid opening that
Mr_ Madonna had met and indeed greatly exceeded those goals. The staffs subsequent
FROM GERALD C WEAVER LAW CORP FAX NO. 559 542-2707 May. 24 2004 01:57PM P4
City Council
May 24, 2004
Page 4
inquiry as to whether or not"good faith" efforts had been made to meet the goals were in
this case immaterial to the process. The applicable state and federal law both provide that
meeting the goal is in and of itself a"good faith" effort. The four day delay in dotting all
of the is and crossing all of the is in providing the information requested by staff to
establish the bidder's".good faith" efforts in meeting the city's affirmative action goals
was not prejudicial to the city or to any other bidder because the irrefirtable facts that
cxisted at the time of the bid established that Mr.Madonna met the goads. The time taken
to establish those facts to the satisfaction of the staff has not delayed the award or
impeded the ability of the city to award the.contract to the lowest responsiblc bidder
without delay in the process_
is it not the duty of the Council to award the contract to the lowest responsible
bidder, thereby substantially saving and avoiding an unnecessary waste of public funds?
It is certainly ngtt the purpose of this process to ignore the important public policies
inherent in the competitive bidding statutes when all the documents requested and
required by both state and federal law have been provided prior to the time of the award,
which is all that is required by both state and federal law and regulation. In fact, some of
the information requested by staff is not required by Cal Trans, the federal government or
for that matter even the City of Santa Barbara.
Respectfully submitted,
_....
Gerald C.Weaver
GCW/law
Fax copy: John Madonna
RED FILE
MEETING AGENDA
DATES * ITEM #�
10 May 2004
—HAND D_ELWERED—
The City of San Luis Obispo
955.Morro Street
San Luis Obispo, CA 93401
Attn: Barbara Lynch,Civil Engineer
Re: Foothill Bridge
DBE submission form&Hazardous Substance Removal Certification
included with this letter is our completed DBE form.
John Madonna Construction,Ina intends to utilize Portnoy Construction for handling aril
loading hazardous materials on-site. A copy of Port ney's proposal is included with this
letter identifying their contractor's state licarse,with certificates ASB/RAZ DOSH.#
$04.
The estimate for handling the material is 8 days. This puts the cost of Portney's contract
below the Ya of 1-perrcent as required by the State listing laws and is why they were not
listed in the original bid package.
Cole Trucking is a licensed hazardous material transporter and will be transporting the
material for disposal. A copy of their certificate is included.
Thanks again for your time and consideration. Please call with any questions or
comments.
'=I COUNCIL CDD DIR
CAO FIN DIR
John Madonna ACAO FIRE CHIEF
ATTORNEY PW DIR
John Madonna Construction Co Inc.—President CLERK/ORIG POUCE CHF
DEPT HEADS AEC DIR
to May zona Faomal Bnase UTI L DIA
f 7 ❑ HR DIR
RECEIVED
PLAY 2 5 2004
SLO CITY CLERK
16 live'
General Engineering P.O. Box 5310
Lic. No. 358030 San Luis Obispo • CA 93403
(805) 543-7751 00 �o Fax (805) 543-7754
Fax
SNC1
11 May 2004
The City of San Luis Obispo
955 Morro Street
San Luis Obispo, CA 93401
Attn: Barbara Lynch,Civil Engineer
Re: Foothill Bridge
DBE submission—Franklin Steel
I received your letter regarding Franklin Steel this afternoon and am responding to that
now.
Franklin Steels tells us that their certification is being renewed and we will have the
connect certification number tomorrow. We completed the DBE form based on
information we did not anticipate being incorrect.
JMC listed Conrad Constructors for supply and installation of the bridge deck. We
simply did not list them on the DBE form because we did not need to list beyond 2
percent. Conrad alone far exceeds the contract goals and requirements by 2-1/2 times.
Included is our corrected DBE Information sheet..
Clearly the.intent and scope of the contract minority requirements has been met.
We are also in touch with Able Maldonado's office who is assisting JMC in expediting
the process for the hazardous material certification.
Thanks again for your time and consideration. Please call with any questions or
comments. We apologize for the mis-information we received.
ohn Madonna
John Madonna Construction Co Inc.—President
11 May 2004 Foothill Bridge
FORM]�—LOCAL AGENCY BIDDER-DBE - INFORMATION
This information may be submitted with year bid proposal If it is not,add you are the appaimt)aw bidder or
dte semad or tbitd low bidder,it must be mihm dttod and rectived as specified m Section 2-1.928 of the Special
Pmmiams. Failure to submit the rtequir od DBE inhnnetion will be;rounds for Endmg the proposal
nainyvansim
CO.-RTErK.P.:
CONTRACT NO-__$R i_4 :—5D
BID AMOUNT:s
BID OPENING DATE:
BIDDER'$NAME:
DBE GOAL FROM CONTRA
DBE PRM CONTRACTOR CERTIFICATION _:
CONTRACT I' ICNI OF WORKAND DBL CERT.NO. NAMEOMEs DOLLAR
ITEM NO. DESCRIPTION OIi SEWCFB TO awt d bo rat"w the dale AMOUNT
BS SUBCOMRACrED OR bids aro opened-ladode DHL tm s
HATMALSTOREPROVIDED1 mdAmw mid Phone nombu)
lafly CoNSrnlatrcrl. 515m, C1CA• 4818 Sfia-kWtDt+�nct�tf�! '?
ret�n�aorafy Ctrash $St�3tn
14,4,VX
Ct.u�hPor�S Nr(tatm- qa9�o
Gufltrd NAIL 0r-00457 Apr, F-tvitp Co
`I''�ly G of Ztvd loltx�
-07A7
(cy•� L �.el0ar CT-ool3la
ilDF+^a��N l�etn- (o0trxae . .
r C f V-n 5}e,1 CCI
Frvs t CO-
609- asl- '73ta3
DOMTANT: Identify all DBE fume being daimtd for ereditt Total Claimed S !14 t 1D
regardless of tier. Copus of the DBE quotas aro required. participation
Names of the First Tier DBE Subeontraclora and theft respectlrt
item(9)of work listed above sitall be eonaietent,when applilMW �•$ %wtib the names and Moms ofwwk In the"List of
Subcontractors"enbmitted with your bid pttraasmt to the t
Subeontraetore Luting Law and Section 2-1.01."Gon_eral."of
tke Special provisiama.
t.DBlipeime eonaatlete shell m[ar their 1>8&catiSestim cumin: DBE priare t
oonseotma droll m6cato all work to be W*Yz W by DBFs waladaeg weds pa'lmmed Sig re otEidder
by its am farom
i if iom arilem is sat to bo pafismwd or Banished by DBE.doseebe exist pmliwgea/oW M904% ' 77SI V
of tum to tm pafltrned or fivaisbcd by Me Dam— (Ames Code)Tel.No.
3. See Scedm 2-M'Dbadvantaem Bmkcss EnmMris4-to decamine the cmdit
allovad forwrSyms P C��taa ( Type or Print)
CTaiedff WE U&Pmedw(Bev 09-2599)
yw
.J
FORM 1
16
J
LO(,_ AGENCY BIDDER-DBE-INFORM- .ON
COUNTY OF SANTA BARBARA
DEPARTMENT OF PUBLIC WORKS
This information may be submitted with your bid proposal. If it is not, and you are the apparent low bidder of the
second or third bidder, it must be submitted and received by the administering agency no later than the time specified
in the special provisions.
CO/RTE/P.M.: BIDDER'S NAME: -TC-* Tl ►dMYNa, Ct}Y1ST .
CONTRACT NO.: 3102�a!4a. ADDRESS: -D• &X ems(
BID AMOUNT:$ �1�1�� 93y'D�
BID OPENING DATE: APRIL 8. 2004 DBE GOAL FROM CONTRACT: 151�2 %
ITEM OF WORK AND NAME OF DBE'" DOLLAR PERCENT
CONTRAC DESCRIPTION OF WORK OR (Name of DBE's Certification Number, AMOUNT *'*
T SERVICES TO BE SUBCONTRACTED and Telephone Number) *** DBE
ITEM NO. OR MAERIALS TO BE PROVIDED DBE
I
Total Claimed $ is
IParticipation % °lo
If 100%of items is not to be performed or furnished by DBE describe exact portion,inducting planned location of work lobe performed,of
item to be performed or fumished by DBE
*' DBE's must be certified by Carrrans on the date bids are opened. Subcontractors and suppliers certified State-Amded only cannot be used
to meet goals on federally funded contracts.
*'* Credit for a DBE supplier, who is not a manufacturer is limited to 60% of the amount to be paid to the supplier. (See Section
'Disadvantaged Business'(DBE)of the special provisions.
IMPORTANT: Names of DBE subcontractors and their respective Items(s)of work listed above should be consistent with the name and
items of work in the"List Of Subcontractors'submitted with your bid pursuant to Subcontractors List Law.
Signature of Bidder DDaati R (Area Code)
Person to Contact Please Print or Type
Distnbutioo fm all Projects (1)original-Caltrans DLAE for NHS Projects,(2)Copy-Local Ageacy project file
(FED DBE)MODIFIED DC-0E(REV 09-18-95
CALTRANS BIDDER - DVBE INFORMATION
j
information may be submitted with your bid proposal. If it is not and you are the apparent low bidder or the
d or third low bidder,it must be submitted and received at the Department of Transportation, 1120 N Street,
om 200,MS##26,Sacramento,California 95814 no later than the timespecified in the Special Provisions.
DISTRICT-CO:RTE:K.P.:
DISTRICT-CONTRACT NO.:
BID AMOUNT:S
BID OPENING DATE: MATCAn
BIDDER'S NAME.
U1.4 MA4[N?ddAy�s��- • ��
DVBE GOAL FROM CONTRACT,
DVBE PRIME CONTRACTOR CERTIFICATION I:
ITEM OF WORD AND NAME OF DVBEs
DESCRIPTION OR SERVICES TO (must be certified on the date DOLLAR
CONTRACT BE SUBCONTRACTED OR FOR CALTRANS bids are opened)(Indicate AMOUNT
ITEM NO. MATERIALS TO BE PROVIDED' ONLY Second and Lower Tier DVBE'
Subcontractors)
IMPORTANT:Names of First Tier DVBE Subcontractors and
their respective item(s)of work listed above shall be consistent Total Claimed
with the names and items of work in the"List of Subcontractors" Participation y
submitted with bid pursuant to the Subcontractors Listing Law
and Section 2-1.01,"General,"of the Special Provisions. Identify
Second and Lower Tier Subcontractors on this form. %
1. DVBE prime contractors shall cuter their OSMB-DVBE reference number or their
DBA name as listed with OSMB. DVBE prime contractors will have 100 percent _
DVBE participation and shall not complete the above table. Naliq
Sigaatur®of Bidder
2. If 100%of an item is not performed or furnished by DVBEs,describe the exact
portion,including the planned location of work to be performed,of item to be
performed or furnished by DVBE. (Area Code)Telephone Number
3. Credit for a DVBE supplier,who is not a manufacturer,is limited to 60%of the
amount paid to the supplier. Credit for truck brokers may be limited to 20%of the ZID i N MADDUNA
amount paid for trucking. (See Section 2-1.02 of the Special Provisions.) Person to Contact (Please Type or Print)
Contract No. 05-OC3104
12
GERALD C. WEAVER .'OST OFFICE Box 494 S/
A LAW CORPORATION BASS LAKE, CALIFORNIA 93604
TELEPHONE: (559)642-3942
GERALD C.WEAVER
FAX: (559)642-2707
May 24, 2004 Via facsimile
805/781-7109
City Council
City of San Luis Obispo
879 Mono Street
San Luis Obispo, CA 93401
Re: John Madonna Construction
Bid on Foothill Bridge Improvement Project
Dear Mr. Mayor and members of the City Council:
Our firm represents John Madonna Construction, who was the low bidder by a
substantial amount on the above referenced project.
After the bids were opened on May 4, 2004 one of your staff members from the
City Engineering Department wrote a letter to Mr. Madonna stating that he had until May
10, 2004 to provide sufficient documentation to establish that he met the affirmative
action goals established by the City for this contract, which was two percent (2%) of the
contract price, or approximately $81,000.00. In response to this request Mr. Madonna
established that among his listed subcontractors submitted at the time of the bid he had
listed three subcontractors among the eight listed that together comprised a total of
$272,492.00. This is approximately six and one-half percent (6 '/z%)of the contract
price, thereby greatly exceeding the goals. The fact that he listed these subcontractors as
a required part of his bid is extremely important to your determination in this matter.
The Subletting and Subcontracting Fair Practices Act (Public Contracts Code
§4100 et. seq.) requires the prime contractor, at the time of his bid, to list each
subcontractor who will perform subcontract work in excess of one-half of one percent of
the prime contractors total bid. Public Contracts Code §4107 prohibits the prime
contractor from substituting any person as a subcontractor in place of the subcontractor
listed in the original bid unless the awarding authority consents to the substitution. Mr.
Madonna has requested no substitution and we know of no reason that would provide
grounds for such a request. Therefore, by listing these DBE subcontractors Mr. Madonna
as a matter of law committed to performance of that portion of the prime contract by
those subcontractors, thereby establishing conclusively that he has met or exceeded the
affirmative action goals established by the City for this contract. In fact he exceeded
these goals by a greater factor than either the second or third lowest bidders.
City Council
May 24, 2004
Page 2
Notwithstanding this irrefutable evidence of compliance, the staff has determined
that Mr. Madonna's bid should be deemed by the Council to be"nonresponsive" on the
grounds that all of the information requested was not submitted until May 14, 2004, by
my letter to your City Attorney of that date enclosing copies of the listed DBE
subcontractors actual quotes, totaling $272, 492.00. Therefore, opines the staff, Mr.
Madonna failed to comply with the federal requirements applicable to this project found
in 49 Code of Federal Regulations §26.53. Section 26.53(a) provided in pertinent part as
follows:
"(a) When you have established a DBE contract goal, you must
award the contract only to a bidder/offerer who makes good faith
effort to meet it. You must determine that a bidder/offeror has made
good faith efforts if the bidder/offeror does either of the following
throes:
(1) Documents that it has obtained enough DBE participation
to meet the goal; or
(2) Documents that it made adequate good faith efforts to meet
the goal even though it did not succeed in obtaining enough
DBE participation to do so." (Emphasis added)
W. Madonna documented by irrefutable evidence that he obtained enough DBE
participation to not only meet, but to greatly exceed, the affirmative action goals
established by the City for this project. Under the applicable federal regulation quoted
above that is all he was required to do.
Section 26.53(b)(3)(ii) only requires that the bidder establish he has met the goals
prior to award of the contract. By virtue of the requirements of The Subletting and
Subcontracting Fair Practices Act, Mr. Madonna established that he had met the goals
prior to award of the contract, which is all that is required by the applicable federal
regulations. The fact that he did not supply all of the backup information requested by
staff until May 14, 2004 is immaterial. To employ the draconian punishment requested
by the staff for such an immaterial reason would violate the purpose and intent of the
applicable federal regulations. Section 26.53(d)(1) required, as part of the
reconsideration required to be undertaken by the City before determining whether or not
the bidder has met the goals, that the bidder be given an opportunity to provide written
documentation concerning the issue of whether it met the goal. If the bidder met the
goal, the federal regulations require nothing further on the issue of whether or not he
made "good faith" efforts to meet the goal. Under the express provisions of the cited
federal regulation, once the bidder has established that he met the goal no further inquiry
1
City Council
May 24, 2004
Page 3
on the issue of"good faith" is relevant or material or required to be undertaken (49 CFR
26.53(a)(1).
Lastly, the courts have applied the doctrine of"substantial compliance" to matters
such as this. Cal-Air Conditioning Inc. v. Auburn Union School District (1993)21 Cal.
App. 4'h 655, 26 Cal. Rptr. 2nd 703. The Cal-Air Conditioning Court held that a bidder
could not be deemed to have failed to comply with The Subletting and Subcontracting
Fair Practices Act simply because he failed to give written notice required by the statute,
when he in fact gave telephonic notice. The Court held that the statute requiring
affidavits was not mandatory, but directory only, and that the issue was whether or not he
in fact proved what he had to prove, not the manner in which he did prove it. Under the
test laid down by the Cal-Air Conditioning Court, Mr. Madonna has substantially
complied with the City's requirements concerning the information provided and the time
within which it is to be provided and has expressly and fully met the letter of the federal
regulations applicable to this case. Irregularities in the contracting process, if any exist,
do not invalidate the bid if the irregularity does not materially effect the proposal,
Menefee v. County of Fresno (1985) 163 Cal. App. 3rd 1175, 210 Cal. Rptr. 99.
Although most California affirmative action programs were made unlawful by the
adoption of Proposition 209 in 1996, affirmative action programs may still be pursued if
necessary to maintain eligibility for federal funds (Cal Constitution, Article 1, Section
31(a)). However, the requirement of competitive bidding and the award of the contract to
the lowest responsible bidder is an important public policy which the courts have held are
required to guard against favoritism, improvidence, extravagance, fraud or corruption,
and to prevent the waste of public funds. Such requirements obtain the best economic
result for the public and stimulate advantageous marketplace competition, Domar Electric
v. City of Los Angeles (1994) 9 Cal. 4t' 161, 173, 36 Cal. Rptr. 2nd 521.
To avoid an award to the low bidder the public entity must find that the bid is not
responsive or that the low bidder is not responsible. Effective January 1, 2000, the
legislature defined "responsible bidder" as a bidder who has demonstrated the attributes
of trustworthiness as well as quality, fitness, capacity and experience to satisfactorily
perform a public works contract(Public Contracts Code §1103).
The staff does not contend that Mr. Madonna's bid was not responsive or that Mr.
Madonna is not a responsible bidder. What the staff proposes is simply that the policy
requiring competitive bidding and award of the contract to the lowest responsible bidder
be ignored solely because he did not "timely" comply with post-bid opening procedures
imposed by the city to insure that any bid accepted either met the city's affirmative action
goals or the bidder made a"good faith" effort to do so. By virtue of The Subletting and
Subcontracting Fair Practices Act the city was assured at the time of the bid opening that
Mr. Madonna had met and indeed greatly exceeded those goals. The staff's subsequent
i
City Council
May 24, 2004
Page 4
inquiry as to whether or not "good faith" efforts had been made to meet the goals were in
this case immaterial to the process. The applicable state and federal law both provide that
meeting the goal is in and of itself a "good faith" effort. The four day delay in dotting all
of the is and crossing all of the is in providing the information requested by staff to
establish the bidder's "good faith" efforts in meeting the city's affirmative action goals
was not prejudicial to the city or to any other bidder because the irrefutable facts that
existed at the time of the bid established that Mr. Madonna met the goals. The time taken
to establish those facts to the satisfaction of the staff has not delayed the award or
impeded the ability of the city to award the contract to the lowest responsible bidder
without delay in the process.
Is it not the duty of the Council to award the contract to the lowest responsible
bidder, thereby substantially saving and avoiding an unnecessary waste of public funds?
It is certainly not the purpose of this process to ignore the important public policies
inherent in the competitive bidding statutes when all the documents requested and
required by both state and federal law have been provided prior to the time of the award,
which is all that is required by both state and federal law and regulation. In fact, some of
the information requested by staff is not required by Cal Trans, the federal government or
for that matter even the City of Santa Barbara.
Respectfully submitted,
Gerald . Weaver
GCW/law
Fax copy: John Madonna