HomeMy WebLinkAbout04.a. Review draft Position Paper to find the apparent low bidder's bid to be non-responsive and reject protest by Carone & Company, Inc.; award a construction contract in the amount of $4,001,000 to McGuire & Hester, the lowest responsive and responsibl Page 1 of 23
Item 4.a.
Algi CENTRAL SAN BOARD OF DIRECTORS
POSITION PAPER
DRAFT
MEETING DATE: APRIL 7, 2021
SUBJECT: REVIEW DRAFT POSITION PAPER TO FIND THE APPARENT LOW
BIDDER'S BID TO BE NON-RESPONSIVE AND REJECT PROTEST BY
CARONE & COMPANY, INC.; AWARD A CONSTRUCTION CONTRACT IN
THE AMOUNT OF $4,001,000 TO MCGUIRE & HESTER, THE LOWEST
RESPONSIVEAND RESPONSIBLE BIDDER FOR THE CONTRACTOR
STAGING IMPROVEMENTS, DISTRICT PROJECT 7375; INCLUDEAWARD
OF AN ADDITIVE BID ITEM FOR THE RECREATIONAL VEHICLE
RECEIVING STATION IN THE AMOUNT OF $9,300; FIND THE PROJECT IS
EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT; AUTHORIZE AN AGREEMENT AMENDMENT WITH WOODARD &
CURRAN, INC. IN THE AMOUNT OF $50,000, INCREASING THE COST
CEILING TO $367,000;AND AUTHORIZE A BUDGET TRANSFER OF
$800,000
SUBMITTED BY: INITIATING DEPARTMENT:
WILLIAM GRANT, ASSOCIATE ENGINEER ENGINEERING AND TECHNICAL SERVICES-
CAPITAL PROJECTS
REVIEWED BY: NATHAN HODGES, SENIOR ENGINEER
EDGAR J. LOPEZ, CAPITAL PROJECTS DIVISION MANAGER
JEAN-MARC PETIT, DIRECTOR OF ENGINEERING AND TECHNICAL
SERVICES
KENTON L.ALM, DISTRICT COUNSEL
ISSUE
The Board of Directors (Board) must award the contract or reject bids within 50 days of the bid opening.
Authorization is also required for the General Manager to execute the Contract Documents subject to
submittal requirements, amend an existing agreement in an amount over$100,000, and to transfer funds
over$500,000 within the Capital Program. A bidder has submitted a bid protest and Board action is
required to reject the protest.
BACKGROUND
COVI D-19 1 mpact: This project is expected to start by J une 2021 and be completed by the end of the
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year. Staff has included provisions in the Contract Documents that follow County and State guidelines for
safety and prevention of COVI D-19.
Central San has a Ten-Year Capital Improvement Plan of approximately$907 million which includes a
number of large projects that will begin or have started construction within the next several years. The
wastewater treatment plant's (plant) existing main entrance, contractor parking, and staging areas are not
equipped for large construction projects with multiple contractors onsite. The current contractor staging
area has no delineation for multiple contractors or designated areas for parking or trailers, limited utility
connections, and no permanent facilities for construction staff or secured equipment storage. The plant's
main entrance is currently the only regular point of access for staff, contractors, vendors, and deliveries.
Furthermore, the plant site is constrained by existing plant processes, underground infrastructure, and
hazardous soil areas.
The Contractor Staging I mprovements Project (Project)will improve the contractor staging area for the
immediate needs of the Solids Handling Facility Improvements, which is planned to be in construction for
the next four years, and for the long-term needs of upcoming plant projects. Project elements to be
constructed include:
1. Contractor Main Staging Area
• Utility connections for construction trailers and contractor use
• Site grading, paving, and access improvements off Imhoff Drive
• New restroom trailer
• Increase available space and laydown areas for equipment and material storage
2. Contractor Shipping, Receiving, and Parking
• Designated area for contractor shipping and receiving away from the Main Gate
• Delivery routes to minimize traffic disruption, turnarounds, and idling
• Dedicated contractor parking to accommodate large or multiple projects
3. Construction Entry and Exit Gates with Guard Facility
• New entrance and exit to contractor area off I mhoff Drive
• Widen existing plant roads for emergency access
• New security guard facility and automated gate
4. Security and Safety Improvements
• I mprove site lighting, fencing, signage, striping, security cameras, badge access, and safety
near contractor areas
5. Miscellaneous Elements
• New Recreational Vehicle (RV) Receiving Station for public use, if approved
• Permanent trailers for construction management and staff use
• Permanent structures to store and protect Central San equipment
These proposed improvements will not only benefit future plant construction projects with the improved
staging area, enhanced security and improved contractor and delivery areas, but will also limit interference
with Central San's daily operations. The improvements will allow staff the means to monitor and easily
identify contractor activities between several concurrent projects.
Due to the existence of refinery sludge, the entire plant site is under a workplan approved by the
Department of Toxic Substances and Control (DTSC).Any excavation work that requires a USA request
requires a submittal to DTSC describing the work to be performed and documenting the completion of
work. In addition, the area commonly referred to as the "soil cap" is a specially designated area of the
plant where previously excavated contaminated material is consolidated.Attachment 1 includes location
maps of the Project and "soil cap" areas.Any earthwork taking place in the "soil cap" area requires
approval from DTSC and done according to the DTSC approved Consolidation Workplan.
Most of the earthwork for this Project is taking place in the designated "soil cap" area. Based on previous
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earthwork in the vicinity of the Project, staff expects to encounter contaminated soil. However, soil from
each work area of the Project will be segregated and tested; and, if acceptable, it may be reused as fill.
Staff has obtained DTSC approval for the work to proceed, and all work will be performed according to
the Consolidation Workplan.
On July 15, 2020, the Board authorized staff to enter into an agreement with Woodard & Curran, I nc. for
design services with a cost ceiling of $250,000. The current amended agreement amount is $317,000.
Staff recommends continuing services with Woodard & Curran, Inc. to include engineering services during
construction (ESDC). The fee for these services has been negotiated at a cost not to exceed $50,000,
bringing the cost ceiling to $367,000. ESDC includes shop drawing review, responding to design changes
or clarifications, and other design services.
Central San, with the help of Woodard & Curran, Inc., prepared the plans and specifications for the
Project. The Engineer's estimate for construction is $4,000,000. This Project was advertised on February
12 and 19, 2021. Five bids ranging from $3,819,700 to $4,731,300 were received and publicly opened on
March 18, 2021. A summary of bids received is shown in Attachment 2.
During the bid evaluation, staff found significant errors in the apparent low bidder's bid documents
submitted by Carone & Company, Inc. (Carone). These errors include writing the extended price for Bid
Items 4, 5, 6, and 7 instead of the required unit pricing, and entering extended pricing for Bid Items 5 and
6 which differed substantially from staff's estimates and the other bidders (Attachment 3). The costs
provided by Carone for Bid Items 5 and 6 are significant and are as follows:
Average extended prices (not including Carone)for Bid Items 5 and 6 are $334,750 and $33,000,
respectively.
Carone's extended prices for Bid Items 5 and 6 are $112,500 and $137,000, respectively.
The Engineer's estimate for Bid Items 5 and 6 are $325,000 and $35,000, respectively.
Staff contacted Carone to discuss their bid and determine if errors had been made. Soon after, staff
received a letter from Carone indicating a clerical mistake had been made in the preparation of their bid
(Attachment 4). The letter explained that Carone inadvertently submitted the wrong extended pricing for
Bid Items 5 and 6. Carone noted they transposed the unit price for these two items and submitted a
corrected Bid Schedule with the corrected pricing resulting in an increased bid total of$3,957,700, or
$138,000 more than their original price. Since then, Carone indicated they would be willing to honor the
original total bid price.
Based on the bid procedures and specifications under the District standard documents for public bidding,
staff can not correct the Carone bid as stated in their letter.Also, there are multiple errors, and Bid Items 5
and 6 are significant; therefore, staff has determined the bid non-responsive. Bid Items 5 and 6 pose the
most risk on the project since it involves disposal of contaminated soils. Staff calculated disposal based
on historic sampling and the design; however, the actual disposal will not be known until all the soils have
been stockpiled and tested. Contractors are required to honor the bid pricing up to 150 percent of the
quantities stated at bid; it would unreasonable to assume any contractor would honor significantly low
prices for disposal of Class I contaminated soils.
Staff conducted a technical and commercial review and determined that the next lowest bidder, McGuire &
Hester, is the lowest responsive and responsible bidder, with a total bid price of$4,001,000. McGuire &
Hester's bid form is accurately completed and references demonstrate they are well qualified to
successfully complete this Project.
Central San will administer the construction contract and provide construction management, survey, and
administration. Consultant inspection and hazardous testing services will be used on an as-needed basis.
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Protest:
Staff received a timely protest letter from Carone stating that McGuire & Hester's bid pricing is
unbalanced and that Carone would honor their original bid price as shown in Attachment 5.As stated
above, staff can not recommend waiving the errors since the bid specifications do not allow for changes
between bid items, and errors in the written unit pricing govern over pricing in figures. Carone's errors in
the written portion of the bid leaves uncertainty for the actual unit prices and as mentioned in Carone's
letter dated March 18, 2021, which stated that the resulting unit pricing is not accurate. Both the District
and Carone would be disadvantaged entering into a contract with such pricing in place.
Staff has evaluated the assertions in the protest letter received from Carone (Attachment 5) and does not
find the McGuire & Hester bid to be so unbalanced as to cause it to be nonresponsive. Staff finds the
McGuire & Hester bid to be responsive.
RV Receiving Station:
Bids for the RV Receiving Station ranged from $9,300 to $50,000. McGuire & Hester provided the lowest
bid in the amount of$9,300. This item was included with this Project as an additive item since the new
entrance and exit to I mhoff Drive impacts the location for the proposed receiving station. The RV
Receiving Station will address a need to remedy illegal dumping which poses an environmental and public
health hazard. The new RV Receiving Station will provide Central San with convenient and secure access
for proper disposal.
California Environmental Quality Act(CEQA)
Staff has concluded that this Project is exempt under Central San CEQA Guidelines Section 15061(b)(3),
since it can be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment. This certainty is based on Central San's past experience with
construction projects of this nature, the relatively small areas involved, and the Central San's mitigating
construction specifications. These specifications are standardized general and special conditions that are
made part of the project bid documents to address environmental considerations, such as protecting trees
and riparian areas, as well as compliance with applicable federal, state, county, district, municipal and local
laws, ordinances, orders, and regulations. Approval of this Project will establish the Board's independent
finding that this Project is exempt from CEQA.
ALT ERNAT IVES/CONSIDERAT IONS
The Board could consider the following alternatives:
1. Reconsider Carone's bid and or declare them a responsive bidder. A timely protest by McGuire &
Hester was received stating that the errors in Carone's bid are material and should not be waived
(Attachment 6). Carone issued a response to the protest submitted by McGuire & Hester, as
provided in Attachment 7. The Board would have to address this protest prior to an award of
contract. To consider Carone's bid responsive, the Board would have to waive the errors, honor the
pricing, and accept a calculated unit pricing for Bid Items 5 and 6, which is not recommended.
Carone has acknowledged the calculated pricing is an error. If the calculated pricing is honored, the
disposal cost for Bid Item 5 are far below market rates and the cost for Bid Item 6 is far above
market rate, this could very likely result in financial hardship to either Carone or the District. The
hardship may potentially lead to contract change order requests to address some of the pricing after
award.
2. Another alternative would be to reject all bids, or revise the Project scope, postpone, and or rebid.
This is not recommended as all the Project scope items are essential for access, site security, and
safety. The access and staging area improvements are needed in preparation for the Solids
Handling Facility Improvements Project. Staff has spent a significant amount of time coordinating
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necessary improvements to handle the immense amount of traffic that will be created during
construction as well as coordinating the proposed work with Contra Costa County or DTSC. Re-
bidding the Project would likely not save costs for the District and McGuire & Hester provided an
acceptable bid.
3. Reject the additive bid item for the RV Receiving Station. This is not recommended as very
competitive bid pricing was received for this scope of work and the contractor will already be
mobilized onsite. Postponing the work or rebid under a separate project will not be cost effective.
Additionally, this work will immediately address a public concern and the environmental and public
health risk associated with illegal dumping of sewage.
FINANCIAL IMPACTS
The total estimated Project cost is $5,200,000, including planning, design, total bid price, contingency,
construction management, and consultant costs as detailed in Attachment 8.
This construction effort will be funded by three sources which were combined for bidding from this fiscal
year's Budget. Two projects (Treatment Plant Security Improvements and Contractor Staging
Improvements) are in the Treatment Plant program of the Capital Improvement Budget (CI B) and can be
found on pages 219 and 233, respectively.
Additional funds are required to complete the work which would require a transfer in the amount of
$800,000 from the C I B Contingency, summarized below :
• The RV Receiving Station was not included in the C I B and the total estimated cost for this facility is
$150,000, which includes design and all construction costs. If the additive bid item is approved by
the Board, staff proposes to use contingency funds.
• Additional disposal costs, in the amount of $650,000, were identified as part of the Project due to
the "soil cap" and potential contaminated soils removal. Approximately 3,500 tons of Class I and
Class I I material have been identified and is anticipated for disposal. The costs of the Contractor
Staging Improvements did not budget for design or construction of this issue.
There are adequate funds in the Fiscal Year(FY) 2020-21 Cl B Contingency to fund this additional work
scope.
At this time, staff does not foresee any financial impact on this Project due to COVI D-19.
COMMITTEE RECOMMENDATION
The Board must evaluate the information provided and consider other information that may be presented
at the Board meeting; therefore, no recommendation is being requested by staff. The Committee may
request additional information to be included and staff will be available to address any questions.
RECOMMENDED BOARD ACTION
Staff recommends the following:
1. Find that the Project is exempt from CEQA;
2. Find the apparent low bidder's bid to be non-responsive and reject the protest by Carone &
Company, I nc.;
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3. Award a construction contract in the amount of$4,001,000 to McGuire & Hester, the lowest
responsive and responsible bidder for the Contractor Staging Improvements, District Project 7375;
4. Include award of the additive bid item in the amount of $9,300 for the construction of the
Recreational Vehicle Receiving Station;
5. Authorize the General Manager to execute the Contract Documents subject to submittal
requirements;
6. Authorize the General Manager to amend an existing agreement with Woodard & Curran to include
engineering services during construction in the amount of$50,000, increasing the agreement cost
ceiling to $367,000; and
7. Authorize a budget transfer of$800,000 from the FY 2020-21 Cl B Contingency for the inclusion of
the Recreational Vehicle Receiving Station and potential hazardous soil disposal.
Strategic Plan Tie-In
GOAL ONE: Customer and Community
Strategy 2—Maintain a positive reputation
GOAL FOUR: Workforce Development
Strategy 4—Meet or exceed industry safety standards
GOAL FIVE:Infrastructure Reliability
Strategy 1—Manage assets optimally to prolong their useful life, Strategy 2—Execute long-term capital renewal and
replacement program, Strategy 3—Protect personnel and assets from threats and emergencies
GOAL SEVEN:Agility and Adaptability
Strategy 1—Maintain a safe working environment for employees and the public during the COVID-19 pandemic
ATTACHMENTS:
1. Location Maps
2. Summary of Bids
3. Bid Item Comparison
4. Letter from Carone 03-18-21
5. Letter from Carone 03-26-21
6. Bid Protest from McGuire & Hester 03-24-21
7. Letter from Carone, Response to Bid Protest
8. Post Bid/P reconstruction Estimate
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 8 of 25
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Page 9 of 23
ATTACHMENT 2
CONTRACTOR STAGING IMPROVEMENTS
DISTRICT PROJECT 7375
SUMMARY OF BIDS
PROJECT NO.: 7375 NO. OF ADDENDA: 3 DATE/TIME: MARCH 18, 2021/12:00 PM
PROJECT NAME: CONTRACTOR STAGING IMPROVEMENTS
PROJECT MANAGER: WILLIAM GRANT
PROJECT LOCATION: 5019 IMHOFF PLACE, MARTINEZ CA
ENGINEER'S ESTIMATE: $4,000,000
NO. BIDDER BID PRICE
1 Carone & Company, Inc. $3,819,700*
2 McGuire & Hester $4,001,000
3 O.C. Jones & Sons, Inc. $47249,500
4 NTK Construction, Inc. $4,506,700
5 Aztec Consultants, Inc. $4,731,300
* Bid non-responsive.
BIDS OPENED BY: /s/Katie Young
DATE: March 18, 2021 at 12:00 p.m. via livestream due to COVID-19
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 11 of 25
Page 10 of 23
ATTACHMENT 3
CONTRACTOR STAGING IMPROVEMENTS
DISTRICT PROJECT 7375
BID ITEM COMPARISON
Bid Item 5 Bid Item 6
Extended Cost Extended Cost
Aztec Consultants, Inc. $459,000 $56,000
McGuire & Hester $285,000 $12,000
NTK Construction, Inc. $325,000 $44,000
O.C. Jones & Sons, Inc. $270,000 $20,000
AVERAGE from Bids $334,750 $33,000
Engineer's Estimate $325,000 $35,000
Carone & Company, Inc. $112,500 $137,000
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 12 of 25
Page 11 of 23
_RONE IN EOMPANY, INC. -+ ATTACHMENT 4
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1 , [� 1V
ON-
.0 ,<
4D
General Engineering Contractors
I it iw Nu.7042111
5009 Farrd❑rive, 5ulte A ConrDrd, CA 94520-1205 • Phone: [9251 602-0600 Fax: (9251602-8601
March 18,2021
William Grant
Kitty Young
Central Contra Costa Sanitation District
5019 Imhoff Place
Martinez CA 94553
Project: District Project#7375
Contractor Staging Improvements
Subject: Clerical Error on Bid
Dear Mr. Grant,
This is to serve as formal notification of the following clerical error made in items 5 and 6 of our
estimate submitted for the above project today.
As submitted:
Item 5 CL I Soil 2500 Tons @ $ 45.00 Ton=$112,500.00
Item 6 CL II Soil 1000 Tons @$137.00 Ton=$137,000.00
Actual Bid:
Item 5 CL I Soil 2500 Tons @$137.00 Ton= $342,500.00
Item 6 CL 11 Soil 1000 Tons @ $ 45.00 Ton= $ 45,000.00
As you can see from the above,the unit prices were transposed for these items. This error occurred in
transferring of the estimate from the estimator's pencil work to the typed bid document. CL I Soil is
the more expensive of the two items for handling and disposal.
While this correction increases our estimate by $138,000.00, for a new total of$3,957,700.00, it does
not put us above the next bidder. We are enclosing corrected Bid Schedule A and ask that you please
accept our deepest apologizes for this oversight and hope this doesn't affect the award of the project to
Carone and Company, Inc.
Sincerely,
Carone c/&f Co, Inc.
Lloyd Carone
President
Encls:
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 13 of 25
Page 12 of 23
Addendum No. 3 — ATTACHMENT 1
(Page 1 of 2)
PART III
BID FORMS
SECTION 2 — BASE BID SCHEDULE"A" OF BID
Lump-Sum and Unit Price Schedule of Prices for Construction of Contractor Staging
Improvements, in accordance with the Project Documents. The Bidder shall provide an amount
in both figures and words for each item listed below (see Part II, Instructions to Bidders).
Failure to comply with these requirements may be grounds for finding the bid nonresponsive.
Write
Item Extended Price in
No. Description Quantity Unit Figures
Mobilization/demobilization for the
lump-sum (LS) price of(WRITTEN IN 200,000.00
1 WORDS) 1 LS $
Two Hundred Thousand Dollars----------------
Sheeting, shoring, and bracing or
equivalent method conforming to applicable
2 safety orders for the lump-sum (LS) price of 1 LS $ 5,000.00
(WRITTEN IN WORDS)
Five Thousand Dollars-----------------------------
Construction schedule and final record
project drawings for the lump-sum (LS)
3 price of(minimum $20,000 - maximum 1 LS $ 9,0000-00
$40,000) (WRITTEN IN WORDS)
Twenty Thousand Dollars----------------------------
Excavating, handling, and stockpiling soil
for the per cubic yard (CY) price of
4 (WRITTEN IN WORDS) 5,600 CY $_ 95.200.00
Ninety-five Thousand Two Hundred Dollars----
Handling and disposal of Class I hazardous
soils for the per ton (TN) price of 342,500.00
5 (WRITTEN IN WORDS) 2,500 TN $
Three Hundred Forty-two Thousand Five
Hundred Dollars------------------------------------------
Handling and disposal of Class II
hazardous soils for the per ton (TN) price of 45,000.00
6 (WRITTEN IN WORDS) 1,000 TN $
Forty-five Thousand Dollars--------
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Page 13 of 23
Addendum No. 3 — ATTACHMENT 1
(Page 2 of 2)
Write
Item Extended Price in
No. Description Quantity Unit Figures
Provision and installation of AC pavement
per Project Documents for the per ton (TN)
7 price of(WRITTEN IN WORDS) 500 TN $ 120,000.00
One Hundred Twenty Thousand Dollars------
3
All other work in the Project Documents
(Volumes 1 through 3 inclusive, all addenda
thereto, excluding bid items 1-7) for the
8 lump sum (LS) price of (WRITTEN IN 1 LS $ 3,030,000-00
WORDS) Three Million Thirty Thousand Dollars
------------------------ ----------------------------------
Allowance of$100,000 for landscaping,
irrigation improvements, and other
additional work at the direction of the
9 District outside of bid items 1-8 for the lump 1 LS $100,000
sum (LS) price of(WRITTEN IN WORDS)
One EHIundred Thousand Dollars-----------------
--------------------------------------------------
$3,957,700.00--------------------------------------------------------------------
BASE BID SCHEDULE "A" TOTAL BID IN FIGURES
Three Million Nine Hundred Fifty-seven Thousand Seven Hundred Dollars-------------
BASE BID SCHEDULE "A" TOTAL BID IN WORDS
Carone and Company, Inc.
By; March 18, 2021
Authorized Signature Date
Name: Lloyd Carone,President
Print
Note: Bidder must initial ALL changes in Schedule of Bid.
The basis for award will be Base Bid Schedule A
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 15 of 25
Page 14 of 23
ATTACHMENT
- , EARI NVE & EOMPANY, INC.
Seneral Engineering Contrectum
Lncen&—Nu.704210
5009 Fom❑rive, 5ulte A • Eoncord, EA 94520-1205 + Phone! (925)502-BB❑❑ Fax: 19251 602-9901
March 26,2021
Nate Hodges
William Grant
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez CA 94553
Project: District Project#7375
Contractor Staging Improvements
Subject: Response to District Statement of Imbalanced Bid
Gentlemen,
In our prior discussions, Carone & Company ("Caron") informed the district that we are willing to
comply with the amounts contained in our bid,including unit costs that can be extrapolated from our extended
prices.
The District indicated that, despite the immaterial errors in the bid,it was uncomfortable awarding the
contract to Carone because of some imbalance in the bids. It was also suggested that the contract could be
awarded to McGuire & Hester. We have now had an opportunity to review the bid tabulation sheet, and we
note that McGuire & Hester's bid also includes some unusual numbers, especially when compared to other
bidders,which might also be considered imbalanced.
The average price bid for Item No. 1 is $247,260. McGuire & Hester bid only $55,000. The next
lowest bid is Carone's bid at$200,000.
The average unit price for Item No. 4 is $35 a cubic yard. McGuire & Hester bid is $60. The next
highest bid was $40. Any increase in the quantity, for this scope of work, will result in a dramatic increase in
price for which taxpayers will be responsible.
For Item No. 6,when removing Carone's extrapolated unit cost, the average unit price is $33 per ton.
McGuire&Hester's price is $12,and the next lowest unit price is $20. As such,if Carone's bid is removed from
consideration, McGuire&Hester's unit price is nearly two-thirds less than the average and almost half the next
lowest bid. This is likely a bid bust, which will result in issues during the course of the Project if there is more
Class II soil than the quantities in the bid.
For Item No. 7,McGuire&Hester's unit price is 50%lower than the average. This is also likely to be a
problem during the project as the quantity,based on takeoff info from the bid documents,is 325 more tons than
the quantity in the bid documents.
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 16 of 25
Page 15 of 23
Project: District Project#7375 March 26,2021
Contractor Staging Improvements
Subject: Response to District Statement of Imbalanced Bid
If any of the contractor's bids show an imbalance, when compared to the others, it is McGuire &
Hester's bid. In the event that a contract is awarded to McGuire & Hester, Carone would have to strongly
consider a bid protest as the extended costs and unit costs, of several categories appear to be quite
"imbalanced."
It appears that the best outcome, although creating a delay, would be to rebid the job. Unless, of
course, the District simply awards the contract to Carone based upon the unit costs and extended costs
contained in Carone's bid,which Carone is willing to accept.
Sincerely,
Carone& Company,Inc.
Lloyd Carone
President
April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 17 of 25
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ATTACHMENT
C J LelSince 1926_
March 24, 2021
ViaEmailandRegularMail—sod@centralsan.org
Katie Young
Secretary of the District
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Re: District Project 7375—Contractor Staging Improvements—Bid Protest
Dear Ms. Young,
McGuire and Hester ("M&H") hereby formally protests the bid submitted to the Central
Contra Costa Sanitary District ("Central San") by bidder Carone and Company, Inc. ("CCI") for
the above referenced project ("Project"). CCI is not a responsive bidder as they have failed to
submit a full and complete bid in accordance with the Project specifications and their errors
cannot be waived. Additionally, an award to CCI would violate applicable law as they have
admitted they made a mistake, and CCI cannot change its bid after opening, nor can Central San.
Any contract awarded to CCI would be illegal and void and thus, Central San cannot award to
CCI and must award to M&H as the lowest responsive bidder.
A. The Project Cannot Be Awarded to CCI Because CCI's Bid Is Nonresponsive
A bid is nonresponsive if it does not comply with the requirements set forth in bid
specifications. See Menefee v. County of Fresno, 163 Cal. App. 3d 1175 (1985). "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." Valley Crest Landscape v. Davis,_41 Cal. App. 4th 1432, 1440
(1996).
CCI's bid is nonresponsive and contains significant errors because they failed to correctly
fill out the Project Bid Forms, specifically, Part III—Bid Forms, Bid Item Nos. 4, 5, 6 on page 1
of 2, and Bid Item No. 7 on page 2 of 2. The Bid Form is very specific in that prospective
bidders are required to provide an"amount in both figures and words for each item listed" and
that "Failure to comply with these requirements may be grounds for finding the bid
2810 HARBOR BAY PARKWAY • ALAMEDA • CA • 94502 • Phone (510) 632-7676 • Fax (510) 562-5210
Contractors License No. 95879
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Central Contra Costa Sanitary District
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nonresponsive". Page 16 -Volume 1 of the Project specifications also states "For the purpose of
initial evaluation of bids, the following will be utilized in resolving arithmetic discrepancies and
conflicts found on the face of the bidding schedule as submitted by Bidders: a. In case of
discrepancy between unit price and extended price, the unit price will govern and will be used to
correct the extension of unit prices.
For the four bid items identified above, each was either a per CY "cubic yard" or per TN
"ton" unit, not a lump sum, which on its face requires a multiplier. The bid forms require the
bidder to fill out the per CY or per TN unit price in WRITTEN IN WORDS and then issue an
extended price in figures. See extracted photo from CCI's bid below with highlighting added.
Handling anc+ c^^r^ �f r'lass I hazardous -
SoilG fnr tho per ton (TN) price of
5 (WRITTEN IN WORDS) 2,500 TN $ 112,5000
One Hundred-Twe I ve Thousand rive Hundred 1)uIlars
------------------------------------—--------------
CCI in each of the four instances above failed to both write in words and in figures either
the cubic yard or ton price of each item, and instead wrote a total amount, which causes a
discrepancy in their extended price, and per the specifications, unit prices govern in the event of
a conflict. For instance, bid item no. 5 above's extended price should be $281,250,000, which is
an abnormal amount, and does not match their base bid. This on its face is a serious material
mistake in their bid, which clearly makes their bid non-responsive. Further, CCI contacted
Central San immediately after the bid opening and admitted to them that they had made a
mistake on their bid by writing in a total price v. a per ton or per cubic yard price as specifically
required. Therefore, Central San must reject CCI's bid as being non-responsive.
B. An Award to CCI Violated Applicable Law
CCI has admitted to Central San that it made a mistake and error in its bid. CCI's bid
must be rejected as non-responsive because, from the face of its bid, it is evident that CCI made a
mistake, a fact that CCI has confirmed. CCI's mistake gave it an unfair competitive advantage
because it is able to withdraw its bid pursuant to Section 5100 et seq. of the Public Contract
Code without forfeiting its bid security. No other bidder could do so. CCI was able to see what
the engineer's estimate was, and what the results were from the other bidders, before it decided
to affirm or withdraw its bid. Accordingly, under Valley Crest Landscape v. Davis, 41 Cal. App.
4t' 1432 (1996), Central San does not have discretion to waive the discrepancies in CCI's bid.
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In Valley Crest, a contractor submitted a bid that had incorrect amounts entered on a bid
form because of a clerical error. The awarding agency was made aware of the error. The Court
of Appeal ruled that the agency was required to reject the contractor's bid because the error gave
the contractor a competitive advantage: the contractor could withdraw its bid after all bids were
opened,unlike the other bidders.
M&H's protest must be sustained even if CCI did not take advantage of the situation it
had created by submitting a bid that was subject to a material clerical error; so long as there was
a possibility that CCI could decide to withdraw its bid, after considering the amounts bid by its
competitors, CCI's bid must be rejected. See Eel River Disposal & Resource Recover, Inc., 221
Cal. App. 4`h 209, 239 (2013); Konica Business Machines USA, Inc. v. Regents of the Univ. of
Calif., 206 Cal. App. 3d 449, 456-57(1988).
Waiving bidding requirements to allow CCI's bid to be considered would introduce an
improper and unfair element of subjectivity into the bid process. City of Inglewood-LA County
Civic Center v. Superior Court, 7 Cal. 3d 861, 867 (1972). To fail to enforce Central San's
bidding requirements uniformly would be arbitrary, capricious, and grounds for setting aside an
award of the project. Id.
C. CCI Cannot Change Its Bid After Bids Are Opened
Once CCI submitted its bid, it was prohibited from changing the information it had
included. Valley Crest Landscape, Inc. v. Davis, 41 Cal. App. 4th 1432 (1996) (contractor could
not correct information in its subcontractor list).
Allowing a bidder to change its bid documents would improperly and illegally confer a
competitive advantage. A contractor whose bid was not responsive could wait until after bids
were opened, and then learn how other contractors had priced the work, before deciding whether
to submit additional information to remedy deficiencies in its bid. No other bidder had the
opportunity, after bids were opened, to decide whether to keep or withdraw its bid.
California for this reason has long prohibited any changes to bid proposals after the
opening of bids. Valley Crest Landscape, supra; Greer v. Hitchcock, 271 Cal. App. 2d 334
(1969) (agency cannot allow bidder to correct mistake in bid after bids are opened); Palo and
Dodini v. City of Oakland, 79 Cal. App. 2d 739, 750 (1947).
D. Any Contract Awarded To CCI Will Be Illegal And Void
A contract awarded to CCI would be illegal and void. Valley Crest Landscape, Inc. v.
Davis, 41 Cal. App. 4th 1432; Monterey Mechanical v. Sacramento Regional County Sanitation
City, 44 Cal. App. 4th 1391 (1996).
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Payment of any funds on a contract awarded to CCI would violate the California
Constitution. Section 17 of Article IV of the Constitution provides that "The Legislature has no
power to grant, or to authorize a city, county, or other public body to grant, extra compensation
or extra allowance to a public officer, public employee, or contractor after service has been
rendered or a contract has been entered into and performed in whole or in part, or to authorize
the payment of a claim against the State or a city, county, or other public body under an
agreement made without authority of law."
A concerned taxpayer, as well as M&H, may bring an action to enjoin payments on a
contract awarded CCI. Rubino v. Lolli, 10 Cal. App. 3d 1059 (1970); Miller v. McKinnon, 20
Cal. 2d 83 (1942).
CCI would be required to disgorge any payments made to it. Davis v. Fresno Unified
School Dist., 57 Cal. App. 5th 911, 917 (2020) see Hensel Phelps Construction Co. v.
Department of Corrections & Rehabilitation, 45 Cal. App. 5th 679, 683 (2020). The public
policy underlying competitive bidding is so strong that a court is required, on its own initiative,
to order the return of payments even if the parties to a lawsuit do not request such an order.
Greer v. Hitchcock, 271 Cal. App. 2d 334 (1969).
Name,Address, and Contact Persons for Protesting Party
McGuire and Hester
2810 Harbor Bay Parkway
Alameda, CA 94502
mhester(amc Quireandhester.com
Attention: Michael R. Hester, President
With a copy to:
Kimberly S. Carone, Corporate Counsel
McGuire and Hester
2810 Harbor Bay Parkway
Alameda, CA 94502
(925) 785-7480
kimcaronekmc guireandhester.com
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Conclusion
As detailed above CCI is a non-responsive bidder, and Central San must reject their bid
and award to the second low bidder, M&H. We look forward to receiving a contract for the
Project. If Central San were to consider an award to CCI, however, we respectfully request that
a hearing be held at which evidence and legal authorities concerning this protest may be
presented. M&H reserves all its remedies.
If you have any questions, please contact me directly at(510) 632-7676.
Regards,
Michael Hester
President
McGuire and Hester
Cc: Carone and Company, Inc. - via email and regular mail-
pat@caroneandcompanyinc.com
William Grant—via email-- vuarantacentralsan.org
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IL
- ARalvE & Eo>mmiy, RIVE. �- ATTACHMENT 7
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General Engineering Cantrnctnrs
Lu ani r,e-iVi i.7111F In
5009 Form ❑Five. Suite A Concord, CA 9452D-1205 - Phone! (929) 602-OE-OO Fix: [925) b02-8801
March 25,2021
Nate Hodges
William Grant
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez CA 94553
Project: District Project#7375
Contractor Staging Improvements
Subject: Response to McGuire&Hester Bid Protest
Gentlemen,
We have received McGuire & Hester's (M&H) letter dated March 24, 2021. The letter contains
various inaccuracies and misinterpretation of law. As discussed below, the errors that are contained in
Carone & Company's (Carone) bid are minor mistakes, clerical in nature, and are immaterial to the overall
bid. As such,the District has broad discretion to accept the bid.
Errors in Bid are Immaterial.
Carone acknowledges that it made rninor clerical errors by failing to type, in words, the unit price,
in Item Nos. 4, 5, 6 and 7. Instead, Carone typed, in words, the extended price as was proper for Item Nos.
1, 2, 3, 8 and 9. However, these clerical errors are minor and immaterial because the unit prices are easily
extrapolated by dividing the extended price by the quantity. This error has no effect on the overall bid price,
which further supports Carone's argument that the error is immaterial.
District Can Accept a Bid as Responsive If Errors are Clerical and Immaterial.
The District has broad authority to accept a bid if there are minor irregularities or mistakes and as
long as the mistakes are immaterial. Menefee v. County of Fresno, (1985) 163 Cal. App. 3d 1175.
M&H raises several arguments to claim the bid is non-responsive due to the errors. Carone will
address each one below.
First, M&H acknowledges that the failure in writing the unit prices in words may be grounds for
finding the bid nonresponsive, but they fail to recognize that the District holds broad discretion to accept the
bid if the error is immaterial.
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Project: District Project#7375 March 25,2021
Contractor Staging Improvements
Subject: Response to McGuire& Hester Bid Protest
M&H attempts to claim that Carone's failure to write the unit price in words is material because it changes
the extended price for bid item no. 5 to$281,250,000. This is incorrect. The error in question is that Carone
wrote the extended price in words instead of the unit price. This is clear because the written words match
the extended price, written in figures,on bid item no. 5. So, it is clear that Carone's intention was to bid the
scope of work for item no. 5 at a total of$112,500 for 2,500 tons. This means that we can simply divide the
extended price by the toils to come up with the unit price. Again, this is a minor error that does not change
Carone's bid intentions.
Second M&H attempts to make a large deal of the fact that Carone acknowledged its mistake and
error in the bid. Again, this argument holds no weight. Acknowledging the error does not make the bid
non-responsive and M&H has provided no case law to suggest that it should. M&H also argues that Ellis
error would give Carone an unfair advantage because it would allow thern to withdraw their bid without
losing their bid bond. Again,this argument is incorrect.
Per the Section 5100 et seq. of the Public Contract Code, which was cited by M&H in their letter, a
bidder can only withdraw their bid if the mistake made makes the bid materially different than the bidder
intended it to be and that the mistake in filling out the bid was not due to an error in judgment—the error
was clerical. As such, the cases cited by M&H regarding withdrawal of a bid do not apply, and Carone's bid
may be accepted.
Here, Carone's clerical mistake, typing in the extended price instead of the unit price, does not
change the bid price in any way—it remains as Carone intended it to be, and the mistake was not an error in
judgment—it was clearly just a mistake of entering in the extended price instead of the unit price.
M&H cited the Valley Crest Landscape case, whose facts are not similar to the ones in this matter.
In that case, the contractor misstated subcontractor participation and claimed a substantial amount of
participation over what was allowed. The mistake needed to be corrected, which ultimately changed the
amount of subcontractor participation. This changed the intentions of the bid, and it was determined that
this mistake was material and gave the contractor an advantage. Here, the error raised by M&H does not
change Carone's intentions nor does it change the bid price.
Lastly, M&H claims that Carone cannot change its bid after bids are opened. As stated above,
Carone does not need to change its bid. The extended price remains the same.
Conclusion
Based on the above, the district has broad authority to declare Carone's bid responsive and award
the contract for the price bid. The contract is not illegal, does not violate the California Constitution, and
ultimately provides the District, and its constituents, with the best price. In the alternative, Carone suggests
that the project be rebid.
Sincerely,
Carone& Contp`aqj,, Inc.
Lloyd Carone
President
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ATTACHMENT 8
CONTRACTOR STAGING IMPROVEMENTS
DISTRICT PROJECT 7375
POST-BID/PRECONSTRUCTION ESTIMATE
% Of
Item Description Amounts Construction
No. Cost
1. CONSTRUCTION
a. Construction Contract $4,001,000
b. Contingency $300,700
c. Additive item for RV Receiving Station $9,300
d. Permits $25,000
SUBTOTAL- CONSTRUCTION COST $4,336,000 100%
2. CONSTRUCTION MANAGEMENT
a. District Forces
- Construction Management $100,000
- Survey $35,000
- Operations $15,000
b. Outside Services
- SCA (Hazardous Materials Consultant) $40,000
- Inspection (As-Needed Consultant) $100,000
- Engineering Support(Designer) $50,000
SUBTOTAL - CONSTRUCTION MANAGEMENT $340,000 8%
3. DESIGN (PREBID ESTIMATE)
a. Staff and Consultant Costs $524,000
SUBTOTAL - PREBID EXPENDITURES $524,000 12%
4. TOTAL ESTIMATED PROJECT COST $5,200,000
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