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HomeMy WebLinkAboutCC Resolution 12428 (West End Village Rehabilitation)RESOLUTION NO. 12428 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL REJECTING ALL BIDS FOR THE FOURTH STREET/WEST END VILLAGE REHABILITATION PROJECT (#11056), AND AUTHORIZING STAFF TO REBID THE PROJECT. WHEREAS, on the 5`h day of February, 2008, pursuant to due and legal notice published in the manner provided by law, inviting sealed bids for proposals for the work hereinafter mentioned, as more fully appears from the Affidavit of Publication thereof on file in the office of the City Clerk of the City of San Rafael, California, the City Clerk of said City did publicly open, examine, and declare all sealed bids or proposals for doing the following work in said City, to wit: "FOURTH STREET/WEST END VILLAGE REHABILITATION PROJECT" PROJECT #11056 in accordance with the plans and specifications therefore on file in the office of said City Clerk; and WHEREAS, the four lowest bidders contained irregularities in their bids; and WHEREAS, section 3.01 of the Contract Documents states that the awarding authority has the sole discretion to reject all bids without any stated reason. NOW, THEREFORE, IT IS HEREBY ORDERED AND RESOLVED that all bids received for the 4th Street/West End Village Rehabilitation Project will be rejected in accordance with Section 3.01, General Conditions of the Contract Documents, and that staff will be directed to rebid the project, clarifying any ambiguities within the Contract Documents. I, ESTHER C. BEIRNE, City Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 19th day of February, 2008, by the following vote, to wit: AYES: COUNCILMEMBERS: BROCKBANK, CONNOLLY, MILLER & CHAIRMAN BORO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: HELLER ESTHER C. BEIRNE, City Clerk BAY CITIES PAVING & GRADING INC. Buss 5029 Forril Drive, Concord, GA 94520 (925) 687.8666 FAX (925) 687-2122 Mail: Post Offlca BOX #6227, Concord, CA 94524-6227 February 15, 2008 Mayor Albert 1. Boro City of San Rafael P.O. Box 151560 San Rafael, CA. 9491571560 Re; 4' Street/ West End Village Rehab Project (#11056) City Agenda Item No. 8 for City Council Meeting February 19, 2008 Dear Mayor, This 'is to request that you award the subject contract to Bay Cities Paving & Grading, Jmc. ("Bay Cities") as the lowest. responsive bidder rather than reject all bids. Today, Bay Cities received a copy of the City's Council Agenda Report for Item No. 8 whereby the Public Works Department ("PWD") recommends that the City Council reject all bids and rebid the Project. The PWD's supports its recommendation with the following general language: "The four lowest bidders contained irregularities in theif bids. These irregularities are based'on ambiguities in Government Codes, Business and. Professions Codes and our Contractor documents regarding sub -contracting licensing requirements " The 5d' lowest bidder, Team Ghilotti, has argued to the PWD that the four lowest bid all contain the same irregularity and that the Contract should be awarded to it. To avoid any possible disputes with the fift bidder, the PWD has recommended that all the bids be rejected. Contrary to the position argued by Team Ghilotti, there are no irregularities in the bids submitted by the four lowest bidders. The four lowest bidders have a total of over two hundred years of experience in bidding for public entities and the argument that they all made the same error is far- fetched. W1iile Bay Cities can understand the City's interest in trying to avoid disputes whenever possible, the City should not bend to the desires of a discontented bidder simply because they failed to provide a competitive bid. The argument that the four lowest bids contain the same irregularity is without basis and the City's intention to revise its contract documents and re -bid the Project could result in additional costs to the City ofapproasimately $500,000. ffATEN ENT OF FACTS The City issued specifications and bids for the 4' Street Project and solicited bids for the construction of the Project. A major portion of the work involves the installation of a joint trench to accommodate a future traffic system. The work of installing joint trenches and installing conduits and cables within the conduits is eommoWy performed by general engineering contractors using laborers. On February 5, 2008, bids were opened and Bay Cities submitted the tis tits mUcy of Bay Cities, all employees are.tre W during employment withobt regard to rata, color, rellgla%, sex, national origin, ape, marital of Veteran status, Medical condition or handbag, orally other legally prolacled status. This will acknoWedge that Bay Was Paving and Grading Inc. is an Equal Cpportunhy Employer, erxl bound by the clauses and conditions Idenh$ed In Exe Ows order 11245, as amended; theMetnam Em vatmms Readjustment Assistance Act of 1974, as amended, 38 ass 2012 and sermon 503 of the fienabUiiadon Act of 1979, as atnanded. and thetrimptem, ting regulations anti which by this clause are incorporated herein.' PaywLy m m8euraaing rax•:jLb-otlr-LILL rOD lb LUU! UZ:4bpm NUU3 Mayor Albert I $oro February 15, 2008 Page 2 lowest bid of $3,504,384. The bid results are as follows: 1. Bay Cities $3,544,382 2. GbRotti Construction $3,524,479 3. Gordon N. Ball $3,603,305 4. Ghilotti Bros_ $3,644,414 5. Team Ghilotti $3,953,353 The bid opening was highly competitive and the range in bid prices between the top four bidders was less tban 41/o. In the bid documents, the City listed a sub -breakdown of work which it entitled "Lighting and Electrical Items-" Although the City's header referred to electrical work, the vast majority of the work is for tate trench installation and is only tangentially related to electrical work All four low bidders listed Hudson Excavation to perform the work. Folloviingr the bid opening, the PWD contacted Bay Cities and asked why Bay Cities had not listed a licensed electrical contractor to perform the electrical, work. Bay Cities explained that Hudson Excavation possessed a General Enneering Class A: license and -was licensed to perform the general engineering work of installing the joint trench (sawcutting, excavating, shoring trenches, laying down.conduit, pulling wires, backfilling, etc. and associated streetwork). Bay Cities further explained that Hudson untended to use a second -flier licensed electrical subcontractor (C.S_T) to perform the hotwork of splicing of the electrical services into the existing loaded system. The work involving the second-tier electrical subcontractor amounts to less than. $10,000. Bay Cities and Hudson provided the PWD with the full documentation of the agreements and the costs of the work. In subsequent verbal discussions, the PWD stated that it found that the bids of Bay Cities, Ghilotti Construction, Gordon N. Ball, and Ghilotti Bros. were irregular because none of the companies had listed the name of Hudson's second --tier electrician in its bid which was a violation of Public Contract Code section 41.04. Based on this determination and the fear that Teen Ghilotti might create a dispute, the PWD has recommended that all bids be rejected and the Project be re -bird. The bidding law regarding public work projects are contained in. California Public Contract Code sections 4100-411.3. These sections of the Public Contract Code are commonly known as the "Subletting and Subcontracting Fair Practices Act:' and were enacted to prohibit the evils of bid shopping and bid peddling on public contracts. Section 4104 provides that the prime bidder set forth in their bid, the name and the location of the place of business of each subcontractor who will perfoun work or labor or render service to the prime contractor in excess of one --half of 1 percent (ill%) of the.prime contractor's total bid or $10,000 whichever is greater. Since all of the prince bids were in excess of $3.5 million, the Public Contract Code only requires the listing of subcontractors with sub bids in excess of $17,500. There is no dispute that the four lowest bidders all listed their subcontractors who had submitted sub -bids in excess of 11M. In fact, all had clearly listed Hudson in accordance with Public Contract Code § 4104 and the Section 3.03 of the City's Instructions to Bidders. Therefore, any arguments that the bidders shopped the bids around to obtain an advantage over other bidders is ridiculous. There are no ambiguities or Mayon- Albert J. Boro February 15, 2008 Page 3 discrepancies between the City's Specifications and Public Contract Code § 4104 since the City has reprinted verbatim the Public Contract Code into its Instructions for Bidders. The PWD's position that the four lowest bids are irregular since the, four lowest bidders did not list C.S.T. (the second-tier electrical subcontractor) is perplexing. Public Contract Code section §4107 has never required that the prime bidders list second-tier subcontractors in their bids_ In fact, § 4107 only requires the listing of subcontractors who will perform work to the prime bidder. In its fifty years of bidding public -work projects, Bay Cities has never known any public entity (Caltrans, counties, cities, school districts, B.A R.T.) who has required second-tier subcontractors to be listed. The bids of the, four lowest bidders are the same form of bids that have been submitted and accepted on thousands of public work projects. The bids were not irregular. TBE PWD' RECOMMENDATION MAX' COST THE CITY $500.000 ANIS DELAY THE PROJECT In bowing to the claims of Team Gbilotti, the PWD appears to have made the incorrect assumption that joint trench work and associated work can only be provided by electrical subcontractors. If the City revises its specification to require that electrical companies can perforin joint trench work; then it is likely that the City will incur an additional $500,000 in additional and unneeded costs to construct the Project Joint trench work is the type of work which Bay Cities and any of the prime contractors are entitled to perform and have performed as general engineering contractors with Class A licenses. For instance, the CSLB specifically provides that a general, engineering company can perform specialty work if that work is an integral, part of the work of a general engineering company. The CSLB posts the following question and answer in its Official Guide. Can a general engineering ("All) contractor contract to perform the work of a single trade (specialty work) if that specialty work is an integral part of the scope of work for a general engineering contractor? For example, a general engineering contractor can build a freeway wbich can include pouring concrete and putting up fences. Can the "A" contractor take a contractor for concrete work only or to build a fence only? A "A" Contractor can contract to perform all or any part of a project that £alts under the "A" classification ... Therefore, and "A" contractor could take a contract to build a fence of pour concrete if the work was originally or currently part of the type of projects listed in B&P section 7058 (airports, roads and similar "fixed works"). (Exlu`bit A). The CSLF3's position reconciles with the Office of Attorney General's which has held that an "A contractor may `engage in all types of construction without obtaining a supplemental classification' for each specialized field of contracting." 40 Cal. Op. Att y Gen. 112 (1962) citing with approval Oddo v. Hedde 101 Cal.App2d 375,385. There is nothing irregular or ambiguous in the CSLB's, the Office of Attorney General's or California courts position regarding the ­yv I .y # uv l I J61ZV1 CIUI116 I QA-J/U-U0I-4 I L4 I GU IU 4UU I uz a4apin ruuo/ uz i Mayor Albert I Bozo February 15, 2008 Page 4 general license: if a contractor has a Class A, general engineering license, he can perform Weetwork and associated specialty work- Hudson Excavation has a Class A license and is licensed to install the joint trench and associated work. - The four lowest bidders fisted Hudson Excavation because Hudson Excavation offered a competitive price to install the joint,trench work. If the City takes the unusual step to revise its specifications, to require that joint trench work be only installed by electricians, then it is likely that the bid prices will reflect the pricing of the fifth bidder whose bid was more than, $450,000 more than Bay Cities' bid. Increased bid prices and delays to the start of the project are not in the public's interest. CONCLUSION The four lowest bidders submitted prime bids that are in conformance with all laws, codes and Contract Documents. There is no irregularities in these bids which listed Hudson Excavation to perform joint trench* work and associated electrical work. As a general engineering contractor with a Class A license, Hudson is more than qualified to perform joint trench work on the City's project as it has done on hundreds of projects over the past twenty Yeats. Hudson will use C. S.T. as its electrical subcontractor to perform the electrical work of splicing into the e.,dst:mg system. None of the top four bidders listed C.S.T. on their Subcontractor Listing Form because C.S.T. is a second-tier subcontractor and the Subletting and Subcontracting Fair Practices Act does not, require the listing of second-tier subcontractors. There is no question that Hudson Excavation is licensed to perform the work for which it is listed under the holdings of the CSLB, the Office of the Attorney General or case law. The City can seek to reject all bid and revise its Contract Documents to require that joint trench work be performed by an electrical subcontractor but this would be like requiring that a dental surgeon perform teeth cleaning. Laborers working for general engineering ., contractors commonly install joint trenches and conduit. If the City seeks to prohibit Hudson and other general engineering companies from installing the joint trench, then the City can expect that the costs of construction will be similar to the price of $3,953,353 submitted by the ffth bidder rather than the price of $3,504,382 submitted by Day Cities, Day Cities respectfully requests that the City reconsider its position and award the Project to Bay Cities. aSincerely, A� anqu eros General Counsel cc: Ken Nordoff, City Manager Rob Epstein (City Attorney), Gus Guinan (Assistant City Attorney)