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HomeMy WebLinkAboutMINUTES - 05222001 - SD.4 l THE BOAfZD OF SUPERVISORS CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on May 22, 2001, by the following vote: AYES: SUPERVISORS GIOIA, GERBER, DeSAULNTER, GLOVER AND UILKEMA NOES: NONE ABSENT. NONE ABSTAIN: NONE SUBJECT: Award of Contract for 2001 Overlays-State Funded Project, Various County 'Locations Project No. 0662-6R4242-01 Bidder Total Amount Bond Amounts Ghilotti Brothers, Inc. $3, 812, 810. 60 Payment: 525 Jacoby Street $3, 812, 810. 60 San Rafael, CA 94901 Performance: $3, 812, 810. 60 Bay Cities Paving & Grading, Inc. Concord, CA Redgwick Construction Company Hayward, CA Ghilotti Construction Company, Inc. Santa Rosa, CA - Bauman Landscape, Inc. Richmond, CA The above-captioned project having been previously approved, the . plans and specifications having been filed with the Board of Supervisors; and bids having been duly invited and received by the Public Works Director on April 17, 2001; and The general prevailing rates of wages which shall be the minimum rates paid on this project, having been filed with the Clerk of the Board and copies to be made available to any interested party upon request; The Board of Supervisors having determined that the project is exempt from the California Environmental Quality Act as a Class 1 (c) categorical exemption, and a Notice of Exemption having been filed with the County Clerk on January 16, 2001; The bidder listed first above, Ghilotti Brothers, Inc. ("Ghilotti") , having submitted the lowest responsive and responsible bid, which is $75, 811.35 less than the next lowest bid; and The Contract Compliance Officer having reported that Ghilotti has documented an adequate good faith effort to comply with the requirements of the County's Outreach Program and having submitted Ghilotti's documentation of good faith effort to comply with the requirements of the County's Outreach Program to the Board for consideration; and The Public Works Director recommending that the project is necessary to rehabilitate various roads throughout the County, and AWARD OF CONTRACT FOR 2001 OVERLAYS-STATE May 22 , 2001 FUNDED PROJECT; VARIOUS COUNTY LOCATIONS further recommending that the bid submitted by Ghilotti is the lowest responsive and responsible bid, and this Board concurring and so finding; and The bidder listed second above, Bay Cities Paving & Grading, Inc. ("Bay Cities") , having submitted a protest to Ghilotti's bid asserting that Ghilotti's bid is non-responsive for failure to .comply with the Mandatory Subcontracting Minimum ("MSM") requirement, and the Board having considered the protest (attached hereto) ; NOW, THEREFORE, the Board finds, determines and orders as follows: The Board APPROVES the Plans and Specifications for the 2001- Overlays-State Funded Project; The Board FINDS that the protest submitted by Bay Cities is without merit, and therefore OVERRULES the protest; and The Board DETERMINES that Ghilotti, as the lowest responsive and responsible bidder, has documented an adequate good faith effort, pursuant to the specifications for this project, to comply with the requirements of the County's Outreach Program, and FURTHER DETERMINES that Ghilotti has complied with the MSM requirement, and the Board WAIVES any irregularities in the documentation of such compliance; and The Board ORDERS that the contract for the furnishing of labor and materials for said work is awarded to Ghilotti at the listed amount and at the unit prices submitted in said bid, and that said contractor shall present two good and sufficient surety bonds as indicated above, and that the Public Works Director shall prepare the contract therefor; and The Board FURTHER ORDERS that after the contractor has signed the contract and returned it, together with the bonds as noted above and any required certificates of insurance or other required documents, and the Public Works Director has reviewed and found them to be sufficient, the Public Works Director is authorized to sign the contract for this Board; and .The Board FURTHER ORDERS -that, in accordance with the project specifications and/or upon signature of the contract by the Public Works Director, any bid bonds posted by the bidders are to be exonerated and any checks or cash submitted for security shall be returned; and The Board FURTHER ORDERS that the Public Works Director or his designee is authorized to sign any escrow agreements prepared for this project to permit the direct payment of retentions into escrow or the substitution of securities for moneys withheld by the County to ensure performance under the contract, pursuant to Public Contract Code Section 22300; and Pursuant to Public Contract Code Section 4114, the Board DELEGATES its functions under Public Contract Code Sections .4107 and 4110 to the Public Works Director or his designee; and Pursuant to Labor Code Section 6705, the Board FURTHER DELEGATES to the Public Works Director or to any registered civil or structural -2- AWARD OF CONTRACT FOR 2001 OVERLAYS-STATE May 22, 2001 FUNDED PROJECT; VARIOUS COUNTY LOCATIONS engineer employed by the District the authority to accept detailed plans showing the design of shoring, bracing, sloping or other provisions to be made for worker protection during trench excavation covered by that section; and The Board DECLARES that, should the award of the contract to Ghilotti be invalidated for any reason, the Board would not in any event have awarded the contract to any other bidder, but instead would have exercised its discretion to reject all of the bids received. Nothing herein shall prevent the Board from reawarding the contract to another bidder in cases where the successful bidder establishes a .mistake, refuses to sign the contract or fails to furnish required bonds or insurance (see Public Contract Code Sections 5100-5107) . Following Board discussion, the Board approved the award of contract as stated; and REJECTED the bid protest for the same. Contact: Michael Carlson, . (925) 313-2321 Orig. Dept: PW-Const. I HEREBY CERTIFY THAT THIS IS cc: Public Works Department A TRUE AND CORRECT COPY OF AN - Construction Division ACTION TAKEN AND ENTERED ON - Accounting THE MINUTES OF THE BOARD OF County Counsel SUPERVISORS ON THE DATE SHOWN Auditor-Controller Ghilotti Brothers, Inc. (Via Const. Div. ) Bay. Cities Paving & Grading, ATTESTED: eld%V Inc. (Via Const. Div. ) CLERK OF THE BO RD,John Sweeten Surety (Via Const. Div. ) a e. BYaA -3- BAY CITIES PAVING & GRADING INC. RECEIVE® Bus:5029 Forni Drive,Concord,CA 94520 (925)687-6666 FAX(925)687-2122 MAY 1 2001 tL11Ay 0 2 2001 Mail:Post Office Box#6227,Concord,CA 94524-6227 CLERK BOARD OF, ;'ERV SORS CON TRACo.-:. Co. April 30,2001 -�'CALIF Board of Supervisors, Contra Costa County Clerk of the Board, John Sweet 651 Pine Street, Roorn 106 Martinez, CA 941 53 Project: 2001 Overlays-State Funded Project No. 0662-6R4242-01 Re: Protest of Bid of Ghilotti Brothers, Inc. Dear Board of Supervisors, This letter constitutes Bay Cities Paving& Grading, Inc.'s ("Bay Cities") protest of the bid of Ghil'otti Brothers, Inc. ("Ghilotti") for the above-referenced project (the"Project"). Bay Cities protests this bid because it was non-responsive to Cont!a Costa County's ( the "County") call for bids and provided Ghilotti with an unfair competitive advantage over other bidders. Bay Cities has requested that the County allow Bay Cities to review Ghilotti's Good Faith Package and the County has denied this request at this tore. Therefore, Bay Cities reserves the right to protest Ghilotti's bid for failure to meet the County's requirements for Good-Faith Effort Documentation after Bay Cities has had an opportunity to review these documents. Ghilotti Failed to Obtain the Mandatory Subcontractor Minimum Participation Level Ghilotti's bid is unresponsive because it failed to comply with the County's Mandatory Subcontracting Minimum ("MSM") requirement of 12% of the bid amount. The Project's Special Provisions set forth the County's bid requirements. Section 3-2.00, Subsection 3-2.01, of the Special Provisions, "Mandatory Subcontractor Minimum Participation Level," states: "To be eligible for award of this project, the Board of Supervisors requires the bidder to subcontract a minimum percentage of its bid, which is stated in the proposal form, to any qualified available contractor, and list all subcontractors, regardless of amount, that the bidder wishes to be credited toward achieving the required MSM. Failure to list the subcontractors amounts with the bid on the form provided in the proposal, sufficient to meet or exceed the required MSM , may cause the bid to be rejected by the Board of Supervisors as non-responsive." [emphasis added]. The proposal form stated that "The bidder is required to subcontract the following minimum percentage of its bid: Mandatory Subcontracting Minimum (MSM) Requirement, 12%." In addition to the language in the County's Outreach Program for Mandatory Subcontracting Minimum , the proposal included a "List of Subcontractors/Suppliers/Manufacturers/Truckers" form for bidders to complete. This form required bidders to list the names, addresses, items of 'II is the policy of Bay Cities,all employees are treated during employment without regard to race,color,religion,sex,national origin,age,marital or veteran status,medical condition or handicap,or any Other legally protected status.This will acknowledge that Say Cities Paving and Grading Inc.is an Equal Opportunity Employer,and bound by the clauses and conditions identified in Executive order 11246,as amended,the Vietnam Era veterans Readiustment Assistance Act of 1974,as amended,38 use 2012 and section 503 of the Rehabilitation Act of 1973.as amended,and their implementing regulations and which by this clause are incorporated herein' r , Board of Supervisors April 30, 2001 Page 2 work, and "dollar values of subcontracts for MSM Compliance." The form further advised bidders to "*See section 3-200 of the `Notice to Contractors and Special Provisions' for Mandatory Subcontracting Minimums (MSM) participation requirements." So that bidders would be fully informed of the County's Outreach Program and the Mandatory Subcontracting Minimum requirements, the County also held a pre-bid meeting where they informed bidders that under the County's Outreach Program, the MSM requirement was.12%. A Ghilotti representative, as well as representatives of all other bidders, attended this pre-bid meeting The County disseminated and published its MSM requirement of 12% via its bid proposal, bidding forms, and pre-bid meeting. Despite the publication of its Outreach Program, Ghilotti only attained MSM participation of 4.54% or roughly a third of the County's mandatory requirement. Ghilotti listed the following information on the form provided with its proposal: BUSINESS NAME Address Items or Portions of Dollar Value of Items of Work Subcontracts for MSM Compliance AC Dike 2788 Ventura Drive, Berm $185314.80 Lincoln Airport Pavement San Rafael Striping & Marking $130,962.11 Markings Rubberized Crack 6302 Winslow Rd., Crack Sealing $23,826.00 Sealant, Inc. Huntington Beach, CA In contrast to Ghilotti, the next three lowest bidders, including Bay Cities, provided bids that met or exceeded the MSM mandatory requirement of 12% participation. Name of Bidder Number of Businesses Total Dollar Amount Total Percentage of Listed to Meet MSM of MSM Compliance MSM Participation of Compliance Bid Ghilotti Brothers 3 $173,102 4.54% Bay Cities 8 $468,895 12.05% Redgwick 8 $576,644 14.44% Construction Co. Ghilotti Const. Co. 8 $1,903,235 45% ("GCC„) Board of Supervisors April. 30, 2001 Page 3 Unlike Ghilotti who only listed 3 businesses to meet the mandatory MSM requirement, the next three lowest bidders each listed eight (8) businesses to comply with the requirement. All three of the next lowest bidders listed firms to provide Trucking, Metal Beam Guard Rail, and Construction Area Signs: Ghilotti did not list any businesses to perform these categories of work. The County established its Outreach Program for the stated goal of"maximizing subcontracting opportunities in the.provision of all goods and services to the County on a contractual basis." Ghilotti's efforts of achieving only 4.5% MSM participation does little to advance the County's goals of maximizing subcontracting opportunities. In fact, Ghilotti had a lower percentage of participation than every other bidder. Ghilotti's bid materially deviates with the requirements of the bid documents and it should be deemed non-responsive. Ghilotti's Failure To Comply With The MSM Mandato[y Req-uirements Gave Ghilotti An Unfair And Competitive Advantage Over Other Bidders. A. Ghilotti's Failure To List Businesses For MSM Participation Allows It To Shop For Sub-Bids After The Bid Opening Unlike Other Bidders. The test for public bids is that they should be responsive to the solicitation for bids. Usually, whether a bid is responsive can be determined from the.face of a bid without outside investigation or information. Taylor Bus Service, Inc. v. San Diego Bd. Of Education (1987) 195 Cal. App.3d 1331, 1342. If there is a deviation in the bid from what is required by the solicitation, the bid must be deemed non-responsive if the variance affected the price of the bid or provided one bidder with an advantage or benefit not allowed other bidders. "A basic rule of competitive bidding is that bids must conform to specifications, and that if a bid does not so conform, it may not be accepted. [Citations.] However, it is further well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders or, in other words, or in other words, if the variance is inconsequential." (47 Ops.Cal.Atty.Gen. 129, 130 (1966), quoted with approval in Ghilotti Const. Co. v. City of Richmond (Ghilotti Bros. Const., Inc.) (1996) 45 Cal.AppAth 897). The County established a mandatory MSM percentage of 12% and Ghilotti attained a percentage of 4.5% MSM participation. Based on its bid price, Ghilotti needed to list $457,537 of MSM participation but only listed $173,102. Arguably, if Ghilotti's bid was only short $10,000 or $20,000 or even $50,000 worth of required MSM participation, the variance might be considered trivial and inconsequential. However, Ghilotti's failure to list $284,435 worth of required MSM participation gave Ghilotti a benefit not allowed to others by allowing Ghilotti to shop for sub- bids following the bid opening. Other bidders listed items such as Trucking, Metal Beam Guard Rail, Concrete, Grinding, and Construction Area Signs in their bids for MSM participation: Ghilotti listed none of these Board of Supervisors April 30, 2001 PaEe 4 items of work for MSM participation. Upon the bids being opened, the County announced that Ghilotti was the apparent low bidder. Other bidders who complied with the County's Outreach Program for MSM participation were limited to using the businesses which they listed. Ghilotti, however, does not face the same limitations. For instance, Bay Cities' bid listed $241,000 worth of trucking to be performed by Royal Trucking. And Redgwick Construction's bid listed $250,000 worth of trucking to be performed by Royal Trucking whereas GCC listed $355,552 worth of trucking to be performed by R&S Trucking. Ghilotti, however, did not list any trucking and was therefore afforded the opportunity to shop the trucking around to the lowest sub-bidder to increase its profit margin. The ability to shop for prices after the bid opening is not an inconsequential advantage but a material and major benefit that only Ghilotti was provided. For instance, the difference in trucking sub-bids between Royal Trucking and R&S Trucking was roughly $110,000. Once the bids were opened and all other bidders made their MSM participation known, Ghilotti could pick and choose among the listed truckers to obtain the best pricing for itself after the bid opening. Here, Ghilotti could pocket over $110,000 by taking advantage of the information other bidders made public. As the low-apparent bidder, Ghilotti would also have the advantage of bargaining over prices with all the business that provided sub- bids on the Project to provide even lower sub-bids. While Ghilotti would benefit by this bid shopping, none of these savings would be passed to the County and the County would be deprived of the full benefits of fair competition among prime contractors. Ghilotti's bid is non- responsive because it provided Ghilotti with the opportunity to view other bidders MSM information and then shop for lower-priced sub-bids. B. Ghilotti's Bid Was Non-Responsive Because It Allowed Ghilotti The Benefit Not Afforded To Other Bidders Of Being Able To Withdraw Its Bid After The Bid Opening The test for the validity of a bid is whether the bidder would be liable on his bid bond if the bidder attempted to back out after the bid was accepted. Menefee v. County of Fresno (1985) 163 Cal.App.3d 11.75, 1178-1179. If a bidder makes a mistake in filling-out a bid so it is materially different, the bidder is entitled to withdraw its bid under Public Contract Code section 5103. In Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, the Court applied the Menefee test to a bid by North Bay Construction which listed 83% of the work to be done by subcontractors although the bid required that the bidder perform at least 50% of the work. In applying the Menefee test, the Court stated: "Applying the same test here, we conclude North Bay had an unfair advantage because it could have withdrawn its bid. Misstating the correct percentage of work to be done by a subcontractor is in the nature of a typographical or arithmetical error. It makes the bid materially different and is a mistake in filling out the bid. As such, under Public Contract Code section 5103, North Bay could have sought relief by giving the City notice of the mistake within five days of the opening of the bid. That North Bay did not seek such relief is of no moment. The key point is that such relief was available. Thus North Bay had a benefit not available to the other bidders. it could have backed out. Its Board of Supervisors April 30, 2001 Page 5 mistake therefore could not be corrected by waiving an `irregularity."' [Emphasis added]. Id at 1442. Here, there is a mistake on the face of Ghilotti's bid. The Bid Documents Require MSM participation of 12% and Ghilotti's bid is short $284,435 worth of the required MSM participation. When the bids were opened, Ghilotti's mistake in failing to list the required MSM participation was readily apparent. Since Ghilotti's bid was competitive with the other low bidders, it chose not to withdraw its bid. That Ghilotti did not seek to withdraw its bid is immaterial because such relief was available to it. Because Ghilotti could have sought such relief, it had a benefit not available to the other bidders; it could have backed out of its bid. Therefore, Ghilotti's mistake cannot be waived as an irregularity and must be deemed non-responsive. CONCLUSION The County recently established it Outreach Program. One of the Program's purposes is to ensure the participation of sub-bid and subcontracting businesses in County-funded construction projects. To inform contractors and bidders of the Program, the County includes the Outreach Program in Bid Documents and on Bid Proposal Forms and by discussing and disseminating the Program at pre-bid meetings. Moreover, the County repeatedly warns bidders that if they fail to list the subcontractors and subcontracting amounts "with the bid on the form provided in the proposal" [emphasis added], the failure may render their bid non-responsive. Despite all of these notices and warnings, Ghilotti Brothers failed to even gain half of the County's Mandatory Subcontracting Minimum. If the County's wishes to further its stated purpose for creating an Outreach Program (to increase sub-bid and subcontracting participation), then Ghilotti's bid must be deemed non-responsive because the percent of MSM it achieved is closer to 0% than the County's requirement of 12%. Other bidders honored the County's Outreach Program and provided businesses with subcontracting and sub-bidding opportunities on the date of bid as required by the Contract Documents. Though the County could allow Ghilotti to increase its MSM after the bid date, no other bidder was allowed this advantage. And by being allowed to alter its MSM participation after the bid date, Ghilotti would be allowed the opportunity of shopping for sub-bids for services such as trucking, concrete, and guard rail that was not afforded to other bidders who are locked into the quoted sub-bids amounts they provided to the County on the bid date. If Ghilotti's bid is allowed to stand and Ghilotti allowed to increase its MSM participation subsequent to the bid- opening, then the County will have established a precedence where it is in every bidder's self- interest to avoid listing sub-bidders with their proms so that they can shop for lower sub-bids after the bid opening. This precedence would not only be counter to the County's stated purposes but also unfair to the others bidders who complied with the County's Outreach Program. Lastly, the bid should be found to be non-responsive because Ghilotti had a competitive advantage of being able to withdraw its bid under Public Contract Code section 5103. Possibly, Board of Supervisors April 30, 2001 Page 6 the County has even questioned Ghilotti as to why it only provided for 4.5% MSM participation in its bid. If Ghilotti has been allowed to explain, clarify or correct its bid after the bid opening, then it has been afforded an opportunity provided to no other bidder. Though Ghilotti did not seek to withdraw its bid after viewing the bid results, this fact is immaterial because such relief was available to Ghilotti and Ghilotti had a benefit not available to other bidders. For these reasons, the mistake made by Ghilotti was substantial and not the type of"irregularity" which can be waived. For the foregoing reasons, Bay Cities respectfully requests that the County declare Ghilotti's bid as non-responsive and award the Project to Bay Cities. Sincerely, Marlo Manqueros General Counsel cc: File, BR, SC Rich Bruno, Public Works Department Emma Kuevor, Affirmative Action Department Pamela Zaid, Deputy County Counsel