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Home My WebLink About16 - CDM Water Transmission Main - Supplemental Report�a�WPORa = CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 16 January 22, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 -644 -3311, dawebb @newportbeachca.gov PREPARED BY: Patrick Arciniega, P.E., Senior Civil Engineer 949 - 644 -3347, parciniega @newportbeachca.gov APPROVED: 0 s TITLE: Corona del Mar Water Transmission Main Pipeline Improvements - Award of Contract No, 4603 Supplemental Report On January 11, 2013, Vido Artuckovich & Son, Inc. came to City Hall to review the first low bidder proposal of T.E. Roberts, Inc. (TE Roberts). On January 16, 2013, Vido Artukovich & Son, Inc. (the second low bidder), submitted the attached formal bid protest to the City with regard to Corona del Mar Water Transmission Main Pipeline Improvement project As part of the bid review process, both staff and the project's Engineering Consultant, PSOMAS and Associates, checked and verified the references submitted with the bid package, reviewed the proposed bid cost and felt confident that TE Roberts has a strong history of completing projects on or ahead of time, and has the experience and expertise to complete a project of this size. Additionally, the City recently used TE Roberts on a previous water main replacement project (St. James Road and Kings Place C- 4775). TE Roberts completed this work in a timely and efficient manner and exhibited exceptional customer service. This was a very high priority job due to 3 previous main breaks and TE Roberts completed the job 20+ days ahead of schedule. Staff has reviewed Vido Artuckovich & Son's bid protest letter and does not share their concerns. Staff recommends accepting TE Roberts as a responsive and responsible bidder and awarding the contract to TE Roberts as recommended in the original staff report. Submitted. by: David A.`Webb Public Works Director Attachment: A. Letter of protest dated January 16, 2013 Pagel of 6 - Ul /!b /Ytl13 1/: b0 !b'Lb99�IJtltl9 'I HKIUKUVL,m V1UMRK JFACJY.[ IX TRANSMITTAL TAL 11Hbt Ul /VJ ATTACHMENT A 11155 RUSM STREET SOUTH CL MONTE, CALIFORNA 91733 Ph: 626 -444 -4206 FX: 626- 444 -3959 )IMPORTANT NOTICE The information contained in this facsimile message is legally privileged and confidential Information intended only for tale use of the individual or entity named below. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copy of this telecopy Is strictly prohibited. If you have received this telecopy in error, please immediately notify us by telephone at 626 - 444 -4206 and return the original message to as at the address above via United States Postal Service. Thankyou. Date: 1/1,6/2013 To: Michael Sinacori From: Mark Artukovich Subject: Bid Protest Comments: Number of pages: S ,including cover, Page 2 of 6 Gl /10/LG1J 11:GG VIDO ART 11155 Rush Sn'eet (626) 444 -0286 1(16/2013 1bLb1144JJbJ WIUAUVIW V1U111"K I'Flbt GL /GJ KOVICH._& SOS INC, l VIDE fi. South G Moote, California 91733 GENERAL CONTRACTORS Fax: (918) 444.3989 To the Honorable City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 SINCE 1919 RE: Corona Del Mar Transmission Pipeline improvement Contract No. 4603 Subject: Bid protest Dear Board: Vido Artukovich & Sou, Inc. / Vldmar, Inc. a ,TV (Attukovich) is the apparent second low bidder on the abovereferenced project. Ar(ulcovich hereby protests the bid of T. T,, Roberts, Inc. (Roberts) as non - responsive and not responsible. In summary Roberts is not a responsible and non - responsive because (1) Roberts has mado an error In its bid and has been given an unfair advantage. (2) Roberts, license No. 603008, has no experience listed, and cannot list any project of this type and size. In fact, this project will be the largest project by more than double in a very densely populated area in Corona Del Mar and Newport Beach. Public Contract Code section 1103 reads, "Responsible bidder," as used in this part, means a bidder who has demonstrated the attribute of (rustworthmess, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract. The Legislature finds and declares tbat this section is declaratory of existing law ". Roberts has no experience in this type or size of work. This project would be. Roberts' largest project by more titan double. Roberts has made material errors in Bid Item's 1, 2 and 3 and Roberts' bid is not in strict and full accordance with the material terms of the bidding Instructions. Bid Item 1, Mobilization and. Demobillzation, Work under this item shall include providing bonds, insurance and financing, establishing a field office, preparing the SWPPP Page 3 of 6 01/16/2013 17:00 16264443909 AKIMUV1t:H VIUMAX PAUL adtnt) or BMP Plan and construction schedule, and all other related work as required by the Contract Documents. It shall also include work to demobilize from the project site including but not limited to site cleanup, removal of USA marking and providing any .required documentation as noted in these Special Provisions. Roberts bid, Bid Item No, 1, at a LS price of $75,000 is 210% less than tba Engineer's estimate ($212,375), 235% less thanthe second bidder ($250,000) and 215% less than the third bidder ($235,000). This is an obvious error, and causes for,Roberts bid to be rejected for non - responsiveness. Further, it is clear Roberts bid is unbalanced. Bid Item 2, Traffic Control, work under this heir shall ineludc delivering all required notifications and temporary parking permits, post sig.ts and all costs incurred notifying residents. In addition, this item includes, if required, preparing traflle control plans prepared by, and signed by a California licensed traffic engineer, and ,providing the traffic control required by the project including, but not limited to signs, cones, barricades, flashing arrow boards and changeable message signs, R -rall, temporary striping, flag persons. This item includes furnishing all labor, tools, equipment and materials necessary to comply with these project plans, W,A.T,C.H. Manual, Latest edition, and City of Newport Beach Requirements. Roberts bid this item at $25,000, 380% less than the En.gineer's estimate, 200% less than the second bidder did and 86% less than the third bidder. This is an obvious error, and causes for Roberts' bid to be rejected for non - responsiveness. Further, it is clear Roberts' bid is unbalanced. Bid Item 3, Excavation Safety, Work under this item shall include adequate sheeting, shoring and bracing or equivalent methods for the protection of the life and limb, which shall comply to applicable safety orders including, but not limited to, planning, designing, engineering, furnishing, constructing, and removing temporary sheeting, shoring and bracing, and any other work necessary to conform to the requirements of any OSHA and the Construction Safety Orders of the State of Call£ornis, pursuant to the provisions of Section 6707 of the California Labor Code. Roberts bid item 3 at $9,000 dollars, the Engineer bid this item at $102,000 and the second bidder bid this item at $100,000 dollars, Roberts' bid for tbis item is more than 1000 % lower than the Engineer and second bidder. This is an obvious error, and causes for Roberts bid to be rejected for non - responsiveness. Further, it is clear Roberts bid is unbalanced, To be responsive, a bid must be in strict and full accordance with the material terns of Ole bidding instructions. 102 Usually, whether a bid is responsive can be determined. from the face of the bid without outside investigation or Information. 103 For certain technical proposals, however, an agency may require the bidder to demonstrate proposed systems or submit Page 4 o(6 01/1G/2013 17:00 16269443909 A M(UV1CH V1UI•IAIt retie. union additional infemtation lu order to determine whether the bid mcots tarn specifications. 104 A bid that varies materially fionr the bidding instructions must be rejected. 105 Responsiveness is evaluated on a case by -case basis. Given the complexity of many construction projects, there will ioevi.tably be some variation between bid proposals and the bid documents. This raises issues of whether a variation is "material" or "immaterial" and whether variations may be waived by the awarding authority. 106 Any "material" variance in a bid may not be waived by the awarding authority, and bids containing "material" variances must be rejected, 107 A bid fails to comply materially with the bid package if it gives the bidder a substantial economic advantage or benefit not enjoyed by otber bidders or if the bidder could have withdrawn its bid without forfeiting its bid security. 108 A substantially conforming bid, although not strictly responsive, may 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. 109 However, a local agency is not required to waive insubstantial deviations from bid requirements because the power to waive immaterial bid deviations is discretionary, not mandatory. 110 Moreover, an agency cannot reject a bid on the basis of arbitauy or unwritten. policies. 111 A bid maybe rejected as n.amosponsive without a hearing. 112 The case of Menefee Y. County of Fresno 113 illustrates the application of the rules concerning responsiveness and waiver of immaterial deviations, ha Menefee, the low bid was challenged because the bidder failed to sign the appropriate line on the proposal sheet of its bid forte, although the form was signed in other places and was accompanied by a signed bid bond. The court upheld the sward of the contract to the low bidder. It did not matter where the bid was signed, as long as it was signed by the appropriate parties. The court concluded that because the bidder gained no advantage, the public agency could waive the immaterial defect. Under the facts presented in Menefee, the court held that the low bidder could not refuse to enter a contract based upon its failure to sign the bid form, and thus affirmed the trial court's ruling validating the eouoty's decision not to consider the unsigned bid as nonresponsive. The court in Valley Crest Landscape, Inc. v. City Council of Davis 114 applied the analysis set forth in Menefee to overturn award. of a contract to a bidder that was permitted to recalculate the amount of work to be performed by the contractors own. forces. The court concluded that the low bidder in the Valley C5•est case 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 arithmetic error. It makes the bid materially different and is a mistake in filling out the bid; therefore, under California Public Contract Code § 5103, the low bidder could have sought relief by giving the city notice of the mistake within five days of the bid opening. The fact that the low bidder did not seek such relief was irrelevant. The key point was that such relief was available and the low bidder thus had a benefit not available to the other bidders since it could have backed out of its bid. Therefore, its mistake could not be waived as an immaterial irregularity. Valley Crest is also noteworthy because, by the tine the case was decided, the contractor who received the award had substantially performed its contract. The court of appeal declined to consider whether the con tractor was entitled to the reasonable value of the work performed notwithstanding the fact that the court had declared the contract void. 115. As addressed above, Roberts has provided the City of Newport au unbalanced bid and is nonresponsive and as further pointed out, the way Roberts submitted his bid he has gained and Page 5 of 6 01116/2013 17:00 16264443909 ARTUI<OV1U'I V1UhlAK I'AUC ab /ab unfair advantage and his bid should be roleoted. Lost of all, Roberts does not qualify as a qualified contractor i.e, experience. We wait your response. very poly yours, v" 7 ark Artukovich Managing Partner 1' Taylor Bus Serv., Ino, v, San Diego lad. of F,duo,. 195 Col. App. 3d 1331 (1987), MCM Constr., Too. v. City & County of S,P,. 66 Col. App. 40h 359 (1998). 1" Valley Crest Landscape, Inc. V. City Council of the City of Davis. 41 Col, App. 4th 1432 (1996). 105ao, 0.9, U• ., lnm Eld. of Ch,., 11 Col. App. 4th 1446 (1992). 'o Unison v, Hanley, 151 Col. 379 (1907); Ghltotd Constr. Co, v. City of Richmond. 45 Cal. App. 4th 897 (1996). 100 See. e.g.. Monefoo v, County of rresno• I6.3 Col. App. 3d 1175(1985). 107 Stimson v. Hanley, 151 Cni. 379 (1907). 100 Menefee v. County of Fresno, 163 Col. App. 3d 1175 (1965). too Sea Universal nyProduois Y. Modesto, 43 Cal, App. 3d 145 (1974). "o MCM Comte Inc. v. Cily & County of S.F., 66 Col. App, 41h 359 (1998). 11' Sec, e.g. Monreray Mock Co. v. Sacmmcnio Rciel County Sanitation Dist., 44 Cal. App. 4th 1391 (1996). "a Sea og., Educational & Recrcofional Servs, Inc. v, Pasadena Unified Soh. Dist., 65 Cal. App. 3d 775 (1977). ltd 167 Cal. App. 3d 1175(1985). 4! Cal. App. 4111 1432 (1996). na A case decided shanly after Valley Craw Involved strikingly similar dreumstanaas bill reached a dI%=t result. See Ghi loft l Coast% Co. v. City of Richmond, 45 Cal. App. 4d1897 (1996), reviely den;ed Page 6 of 6