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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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 3 of 25 Page 2 of 23 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 4 of 25 Page 3 of 23 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. April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 5 of 25 Page 4 of 23 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 6 of 25 Page 5 of 23 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.; April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 7 of 25 Page 6 of 23 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 Page 7 of 23 O �Q CLEARWELL BASIN 0 v, pO o NORTH �+Q BASIN X7 0 q3 13 FILTER p DRAIN BACK °\ PLANT CHANNEL �` DR N J0 r O 0 400 800 OQ FEET \,nNp`` PROJECT \ AREA \ SOUTH C)2 O \\ BASIN O �Cl) NORTH CLARIFIERS' \ a \ AERATION \ TANKS o \ SOUTH o CLARIFIERS SOLIDS M �J � BUILDING � � o -� PRIMARY as TANKS as Attachment Y CENTRAL SAN CONTRACTOR STAGING IMPROVEMENTS ' PROJECT 1 DISTRICT PROJECT 7375 0 09—Mar-2021 K:\Projects\7375_Contractor Staging Improve ments\Autocad\7375_Attach1 a.dwg �Wg V N 87°10'45'E 182.76' MW�B FILTER37.46'38'16"W p� PLANT OR Q � N 6m9�3 ,�n\� FF Q� N 646.67 24'E �\'```O w M 2 N 67°59'55"E 89.35' N 68'05'17'E < 217.30' 0MNOl\• SOUTH M/ "'6'z 11N23°32'015'E BASIN 2.21' 5.9z71.5w 07'34'W m 1. 45 5 °20'36"W 7` 6, E 55.04' ti = a O O Da° 0'40'E Q °p NORTH O '57.5'- W 5 CLARIFIERS 27'51 MW' r2g� 12°48 5'w1 0 125 250 83. W� FEET AERATION a h Slz 563e' 9102'z9' ms'w LEGEND s � q9' B 589°m0'5 59°19'57'W's� W 95.58' 11'44'21'W 44.73' Sm,00 45.66' 41'05'E 27. 566 A106 27.44' 2 CAPPED PROPERTY MW 12 6 31,5�q W S57°36'23"W N35°45'06'W 61.84'42'59" _ _ GROUND SURFACE CONTOUR 14.84' 83.49' (ELEVATIONS IN FT AMSL +100) SOUTH \ ® ^` Mw 3 1 GROUNDIMATE WATER IO N OF CLARIFIERSDWATER MONTORING WELL (� � � CENTRAL SAN Attachment ' CAPPED PROPERTY 1 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 r 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-------- April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 14 of 25 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 Page 16 of 23 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 18 of 25 Page 17 of 23 Central Contra Costa Sanitary District Page 2 of 53 March 24, 2021 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. April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 19 of 25 Page 18 of 23 Central Contra Costa Sanitary District Page 3 of 53 March 24, 2021 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). April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 20 of 25 Page 19 of 23 Central Contra Costa Sanitary District Page 4 of 5 '�`� g March 24, 2021 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 21 of 25 Page 20 of 23 Central Contra Costa Sanitary District Page 5 of 5 'u"= March 24, 2021 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 22 of 25 �" r Page 21 of 23 IL - ARalvE & Eo>mmiy, RIVE. �- ATTACHMENT 7 M O Zi 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. April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 23 of 25 Page 22 of 23 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 24 of 25 Page 23 of 23 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 April 7, 2021 Special EOPS Committee Meeting Agenda Packet- Page 25 of 25