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HomeMy WebLinkAbout09. Reject a bid protest and award a construction contract to Basset Engineering for Walnut Creek Sewer Renovations,Phs 15, DP 8465 Page 1 of 19 Item 9. Algi CENTRAL SAN BOARD OF DIRECTORS a LEO, POSITION PAPER MEETING DATE: JUNE 17, 2021 SUBJECT: REJECTA BID PROTESTAND AWARD ACONSTRUCTION CONTRACT IN THE AMOUNT OF $3,117,488 TO BASSET ENGINEERING, THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER FOR THE WALNUT CREEK SEWER RENOVATIONS, PHASE 15, DISTRICT PROJECT 8465; FIND THAT THE PROJECT IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITYACT (CEQA); AND AUTHORIZE UP TO A 15-PERCENT CONTINGENCY SUBMITTED BY: INITIATING DEPARTMENT: DAMASIO ZEPEDAARAGON, ASSOCIATE ENGINEERING AND TECHNICAL SERVICES- ENGINEER CAPITAL PROJECTS REVIEWED BY: SASHA MESTETSKY, SENIOR ENGINEER EDGAR J. LOPEZ, CAPITAL PROJECTS DIVISION MANAGER JEAN-MARC PETIT, DIRECTOR OF ENGINEERING AND TECHNICAL SERVICES Roger S. Bailey General Manager ISSUE The Board of Directors (Board) must award the contract or reject bids within 50 days of the bid opening. A timely protest from the second low bidder has been received and the Board is required to consider the merits of the protest and take action to reject or accept the protest. The General Manager also needs authorization to execute the Contract Documents subject to submittal requirements and include up to a 15- percent contingency for the project. BACKGROUND I n the midst of the novel coronavirus (COVI D-19), Central San continues construction activities as an June 17, 2021 Regular Board Meeting Agenda Packet- Page 48 of 168 Page 2 of 19 essential service and infrastructure provider under guidelines provided by Contra Costa Health Services, Occupational Safety and Health Administration, state, and federal agencies. Several sites in this project include work on private properties and public rights-of-way. The construction contract includes strict provisions to mitigate the spread of COVID-19, such as personal protective equipment, handwashing stations, and other safety items, practices, and procedures as guidelines become more restrictive or lessen. The Walnut Creek Sewer Renovations, Phase 15, District Project 8465 (Project) is part of the Collection System Program of the Capital Improvement Budget (Cl B). Its aim is to replace or rehabilitate deteriorated sewer infrastructure at the end of its useful life and in poor condition. The construction work is coordinated with local jurisdictions, cities, utilities, private property owners, and tenants. This Project will replace or rehabilitate approximately 9,300 feet of small 6-to 8-inch diameter sewer mains, utility access holes, and other work within public rights-of-way and private easements. Staff prepared the plans and specifications for the Project. Construction methods primarily include open-trench, pipe bursting, and cured-in-place pipe (CI PP).Attachment 1 provides an overview map of all the site locations. The Engineer's estimate for construction was $4,000,000. The Project was advertised on May 4 and 11, 2021. Central San received seven bids ranging from $3,117,488 to $4,698,191, and publicly opened them on May 25, 2021. The Capital Projects Division conducted a technical and commercial review of the bids and determined that Basset Engineering (Basset) is the lowest responsive and responsible bidder with a total bid amount of$3,117,488. Attachment 2 supplies a summary of the bids received. Central San will administer the construction contract and provide construction management, resident engineering, survey, administration, and submittal review. Central San has engaged a consultant under an existing agreement to provide inspection services. Bid Protest A timely bid protest was received by the second low bidder, California Trenchless, I nc. (CTI), as provided in Attachment 3. The CTI protest claims that Basset's bid should be declared non-responsive based on falsifying experience on the bid forms, as the experience stated was done under a different license or by another contractor. Staff reviewed the assertions made by CTI and contacted the references provided in Basset's bid. Three projects were listed with references and all of which confirmed that the Principal at Basset was the person that managed and acted as the main point of contact for the work performed, including the workforce. At the time of those projects, the Principal and workforce were employed by the Principal's father(owner of a different company). Therefore, staff considers the experience listed by Basset as personal experience and is not corporate experience. Central San's bid specification does not distinguish the difference between the type of experience to be provided by a bidder. However, there is clear and detailed language on rejecting a bidder based on qualifications in the bid documents. Section 10, Qualification of Bidders,of the Instructions to Bidders states that Central San reserves the right to reject any bid such that it is in the best interest of Central San for the following reasons: • For business and technical organization; • Financial resources; • Plant and equipment used in performing work; or • Lack of successful experience in performing work or similar type and magnitude. Based on the above criteria, staff conducted a detailed investigation on Basset and did not find any reason to substantiate a recommendation to reject the bid based on qualifications. A summary of the findings is included as Attachment 4. Basset has the business qualifications, A+ bonding rating and June 17, 2021 Regular Board Meeting Agenda Packet- Page 49 of 168 Page 3 of 19 capacity, insurance, equipment, and meets the experience required to perform the Project.Although Basset listed personal experience, a technicality, they also provided staff with additional information and work experience performed by Basset for the City of San Francisco Public Works and City of Sunnyvale. Several references have been verified by staff and all responses stated Basset is well qualified to perform the type of work needed under this Project. On June 3, 2021, Basset issued a response to CTI's protest, as provided in Attachment 5. This letter states that CTI is attempting to add a requirement that the bidder experience must be corporation entity experience only. I n addition, Basset wrote that its officers have over 25 years of combined experience in the industry, much of it focused on municipal sewer and pipeline projects. Basset pointed out that a construction corporation which demonstrates experience based on its officer's experience and knowledge is more qualified than a corporation which may have performed projects in the past but has employees who have not led or performed such work. Basset has the financial resources and is willing to proceed in a timely manner to complete the Project for Central San. Central San's history on bidder experience includes decades of fairness and proven bid documents and specifications. Throughout the years, several contractors have branched out to form their own corporations, such as Cratus, Inc. (Cratus) as an example, which consisted of officers from Ranger Pipelines, Inc. Cratus has and continues to perform quality work at Central San. CTI has benefited from the qualified experience of their employees on Central San projects which included directional drilling and CI PP experience. Staff's outreach to verify experience typically goes beyond the three potentially listed projects in the bid forms. Bidders often provide attachments to their bid stating qualifications or provide additional contacts or project experience during staff's verification process. In conclusion, the issue of Basset including personal experience is a technicality or a bid discrepancy at worst. This technicality is a non-material item and does not impact the bid price provided by Basset. The total information given by Basset and the feedback received from the City of San Francisco Public Works and others, Central San's past practices for qualified experience, and a satisfactory review of all the other components of the bid, has lead staff to determine that the bid provided by Basset is responsive. CEQA Staff has concluded that this Project is exempt from CEQA under Central San CEQA Guidelines Section 15302. It involves the replacement of existing facilities at the same locations and with the same purpose and level of activity as the facilities being replaced. Any capacity increases are for non-growth inducing, wet weather purposes. The Project also is exempt under Central San CEQA Guidelines Section 15061(b)(3), since there is no possibility that the Project may have a significant effect on the environment. This certainty is based on Central San's experience with numerous sewer construction projects of this nature, the relatively short distances involved, and Central San's mitigating construction specifications. These specifications are standardized general and special conditions in the Project bid documents to address environmental considerations, such as protecting trees and riparian areas. They comply 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 Staff has provided two alternatives and the Board may choose to provide other direction. The alternatives are as follows: 1. Accept the bid protest, declare the bid provided by Basset as non-responsive due to lack of qualified experience, and award the project to CTI, which is not recommended. This alternative would increase the total estimated Project budget by$101,867. CTI's bid included an arithmetic June 17, 2021 Regular Board Meeting Agenda Packet- Page 50 of 168 Page 4 of 19 error in the extended pricing of one bid item, this discrepancy is outlined in the bid specifications and can be corrected by Central San. 2. Reject all bids and postpone the Project. Staff has coordinated the construction work with private property owners, the public, utilities and cities, and does not recommend this option. FINANCIAL IMPACTS The total estimated Project cost is $4.68 million. The cost includes planning, design, bid price, contingency, construction management, and consultant costs as detailed in Attachment 6. The Project budget is also shown on page 219 of Central San's Fiscal Year 2021-22 Budget at$5.4 million. Staff will transfer the savings for the Project to the Capital Improvement Budget Contingency account. Staff recommends a 15-percent contract contingency on this Project. The contingency would cover additional urgently needed repairs or replacement of nearby sewers and for any unforeseen conditions that may encountered during the renovation work. COMMUNITY OUTREACH Central San staff did extensive homeowner outreach to prepare residents for the upcoming construction work. Initial Project letters were sent in the summer of 2020 informing residents of the design work. Throughout the course of design, staff addressed email and phone inquiries about the Project and conducted face-to-face outreach with several easement homeowners. Due to COVI D-19, staff was creative in preparing residents for construction. In place of a public meeting, staff supplied a video presentation on the Central San website.Additionally, the public was encouraged to reach out with any other questions or concerns. To date, all questions and concerns received have been answered and addressed. COMMITTEE RECOMMENDATION The Engineering and Operations Committee reviewed this matter at its meeting on June 8, 2021, and recommended approval. RECOMMENDED BOARD ACTION Staff recommends the following: 1. Reject the bid protest by California Trenchless, I nc.; 2. Find that the Project is exempt from CEQA; 3. Award a construction contract in the amount of$3,117,488 to Basset Engineering, the lowest responsive and responsible bidder for the Walnut Creek Sewer Renovations, Phase 15, District Project 8465; and 4. Authorize the General Manager to execute the Contract Documents subject to submittal requirements and include up to a 15-percent contingency. Strategic Plan Tie-In GOAL ONE: Customer and Community Strategy 1—Deliver high-quality customer service, Strategy 2—Maintain a positive reputation GOAL TWO: Environmental Stewardship June 17, 2021 Regular Board Meeting Agenda Packet- Page 51 of 168 Page 5 of 19 Strategy 1—Achieve 100% compliance in all regulations GOAL FIVE:Infrastructure Reliability Strategy 2—Execute long-term capital renewal and replacement program, Strategy 3—Protect personnel and assets from threats and emergencies GOAL SEVEN:Agility and A daptability Strategy 1—Maintain a safe working environment for employees and the public during the COVID-19 pandemic ATTACHMENTS: 1. Project Location Map 2. Summary of Bids 3. CTI Bid Protest Letter dated 05-28-21 4. Summary of Qualified Experience Findings 5. Response to CTI Bid Protest dated 06-03-21 6. Post-Bid/P reconstruction Estimate June 17, 2021 Regular Board Meeting Agenda Packet- Page 52 of 168 CENTRAL SAN • I yette Moraga 680 � �. � , :. �•,� o •• i 24 L . ct Location and Number Note: Map Displayed in North American Datum of 1983 Attachment Central San data as of May 2021. California State Plane,Zone III FIPS 0403,US Feet 1 1 Page 7 of 19 ATTACHMENT 2 WALNUT CREEK SEWER RENOVATIONS, PHASE 15 DISTRICT PROJECT 8465 SUMMARY OF BIDS PROJECT NO.: 8465 NO. OF ADDENDA: 1 DATE/TIME: MAY 25, 2021/12:00 PM PROJECT NAME: WALNUT CREEK SEWER RENOVATIONS, PHASE 15 PROJECT MANAGER: DAMASIO ZEPEDA ARAGON PROJECT LOCATION: CENTRAL SAN SERVICE AREA ENGINEER'S ESTIMATE: $4,000,000 NO. BIDDER BID PRICE Basset Engineering $3,117,488 San Francisco, California 2 California Trenchless, Inc. $3,219,355* Hayward, California 3 K.J. Woods Construction, Inc. $3,238,000 San Francisco, California 4 Cratus, Inc. $3,312,088 San Francisco, California 5 Precision Engineering, Inc. $3,612,450 San Francisco, California 6 Andes Construction, Inc. $4,375,015 Oakland, California 7 Ranger Pipelines, Inc. $4,698,191 San Francisco, California *Upon bid evaluation, staff corrected the bid provided by California Trenchless, Inc. from $3,181,855 to $3,219,355 based on arithmetic discrepancies. Per the project bid specifications, Central San can recalculate the total bid based on the resolution of any arithmetic discrepancy. The lowest bid is determined after any required recalculations. BIDS OPENED BY /s/ Katie Young DATE: May 25, 2021 at 1:00 p.m. via livestream due to COVID-19 June 17, 2021 Regular Board Meeting Agenda Packet- Page 54 of 168 Page 8 of 19 Attachment 3 CALIFORNIA 4RE NC HLESS 2315 Dunn Rd. Hayward, CA 94545 P: 510-782-5335. F: 510-266-1543 May 28, 2021 Via Email to dzepedagcentralsan.org and U.S. First Class Mail Damasio Zepeda Aragon, P.E. Central Contra Cost Sanitary District 5019 Imhoff Place Martinez, CA 94553 Re: District Project 8465, Walnut Creek Sewer Renovations, Phase 15 Protest of Intent to Award Basset Engineering Dear Mr. Zepeda Aragon: California Trenchless, Inc. ("CTI") hereby formally protests the Central Contra Costa Sanitary District's ("District") intent, if any, to award a contract to Contractors, Inc. for the above referenced project ("Project") to Basset Engineering ("Basset"). Basset's bid is nonresponsive, because Basset has not satisfied the District's requirements for the listing of similar projects previously completed by the bidder. The District cannot award to Basset for the reasons that follow. DISTRICT'S MANDATORY MINIMUM CERTIFICATION REQUIREMENTS The District's bid documents specify the mandatory minimum level of experience that a bidder must have in order to be eligible to be awarded a contract for the Project: "To meet the experience required for the proposed Project, the Bidder shall have completed one or more projects involving 8-inch diameter or larger sanitary sewer of at least 1,000 feet by open cut; 1,000 feet by pipe burst of which 500 feet shall be utilizing static equipment and 500 feet utilizing pneumatic equipment; 1,000 feet by cured-in-place-pipe (CIPP) and appurtenant structures." (emphasis added.) (District Bid Documents, Part III, Bid Form, Section 5(c).) June 17, 2021 Regular Board Meeting Agenda Packet- Page 55 of 168 Page 9 of 19 Central Contra Costa County Sanitary Sewer District Page 2 of 2 May 28, 2021 A. The Project Cannot Be Awarded to Basset Because Basset'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). Basset's bid is nonresponsive because Basset provided inaccurate information as to "similar" work of the kind specified by the District that Basset completed within the past five years. Based upon the language in the District's bid form, "Basset represented that it"...submits below a statement describing work the Bidder has completed within the last five (5) years that is similar in character to that anticipated in the proposed Project. A listing of three (3) jobs is preferable." f emphasis added.] (District Bid Documents, Part III, Bid Form, Section 5(c).) Basset listed three projects, all purported to have been performed in 2019, none of which could have been and/or were performed by Basset. The bidder is Basset, a California corporation. (See Basset Bid Form, p. 22, which lists entity number C4594742 as the entity submitting the bid.) According to the official records of the California Secretary of State, Basset did not come into existence until May 15, 2020. Therefore, this corporation could not have legally undertaken any work in 2019. Further, the Contractor's State License Board did not issue a license to Basset until October 26, 2020. Basset could not legally have undertaken any work prior to that date. Therefore, it is impossible for Basset to satisfy the mandatory requirements stated in the District's bid documents. Further, the District's own due diligence has confirmed that at least one of the three projects purported to have been performed by Basset was in fact performed by a different contractor. Through a search of the City and County of San Francisco's public records, CTI also has confirmed that the Polk Strectscape project claimed to have been performed by Basset was in fact performed by a different contractor, M Squared. The following information was found on the City's website, via the link included below. Project: Polk Streetscape 3000 LF 2019 https:llsfpublicworks.org/promect/polk-streetscape-project Start Date August 01, 2016 Completion Date December 01, 2018 Budget $18,000,000 Project Manager David Froehlich M Squared Construction, Inc. (contractor) June 17, 2021 Regular Board Meeting Agenda Packet- Page 56 of 168 Page 10 of 19 Central Contra Costa County Sanitary Sewer District Page 3 of 2 May 28, 2021 Contact Coma Te Phone 628-271-2243 Email coma.tegsfdpw.org Based upon the foregoing facts, it is clear that Basset submitted a false certification as to its experience and therefore is not a responsible contractor because it lacks the basic experience and qualifications to perform work for public agencies. Pub. Contract Code § 1103 ("'Responsible bidder,' as used in this part, means a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract."); City of Inglewood-LA County Civic Center v. Superior Court, 7 Cal, 3d 861, 867 (1972). B. Basset and Its Lack Of Responsibility With Regard To This Proiect "It is a long and well-established rule that where contracts are required to be let upon public bidding, the proposals and specifications inviting such bids must be sufficiently detailed, definite and precise so as to provide a basis for full and competitive bidding upon a common standard." Baldwin Lima Hamilton Corp. v. Superior Court, 208 C.A.2d 803, 810 (1962); Ertle v. Leary, 114 Cal. 238 (1896). A public agency may require that bidders comply with requirements that are in addition to those that are mandated by statute. See, , MCM Constr., Inc. v. San Francisco, 66 C.A.4th 359, 374 (1998) (upholding requirement that nonstatutory information be included in subcontractor list about dollar amount of work to be performed by each subcontractor); Valley Crest Landscape, Inc. v. Davis, 41 C.A.4th 1432, 1442 (1996) (enforcing nonstatutory requirement that 50% of work be performed by the general contractor); Domar Elec. v. City of Los Angeles, 9 Cal. 4th 161 (1994) (upholding rejection of a bid as nonresponsive where the specifications had required bidders to engage in good faith efforts to hire disadvantaged businesses); Beverly Hills v. Su ep r.Ct., 272 C.A.2d 876 (1969) (finding that failure to licensing information rendered a bid nonresponsive notwithstanding that the information was not required by statute). In M & B Construction v. Yuba County Water Agency, 68 C.A.4th 1353, 1361 (1999), the Court of Appeal ruled that an agency "made a prebid determination that the public would be better served in terms of quality and economy by letting the project only to licensees with the most appropriate experience." Id. (emphasis supplied). The Court found that the awarding agency acted properly in rejecting a bid from a contractor that did not have a license in the specific license classification that the District had specified in its solicitation. June 17, 2021 Regular Board Meeting Agenda Packet- Page 57 of 168 Page 11 of 19 Central Contra Costa County Sanitary Sewer District Page 4 of 2 May 28, 2021 Courts that have considered this specific issue have ruled that an agency may adopt and enforce minimum requirements that must be met for a contractor to be deemed responsible. For example, in P & C Giampilis Constr. Corp. v. Diamond, 210 A.D.2d 64, 65-66 (N.Y. App. 1994),the Court ruled that the awarding agency had a rational basis for rejecting the petitioner's bids. The bids were non- responsive to the specific requirements set forth in the bid documents (mandatine that bidders must, within the prior five years, have successfully completed in timely fashion at least two roofine projects similar in scope and tie to the work required under the contracts bid upon, which projects must have been completed and been in service for a minimum of two full years prior to the bid opening and requiring specific prior experience by the corporate petitioner itself, the bidder corporation). In another, a public agency owner, the Town of Islip, was found to have acted reasonably in rejecting a bid. Eldor Contr. Corp. v. Town of Islip, 277 A.D.2d 233 (N.Y. App. 2000). The court noted that When the petitioner failed to furnish information with respect to the type and duration of its relevant experience, as requested by the bidding documents, the Town directly solicited additional information from the petitioner. The petitioner's subsequent submissions lacked specificity regarding its experience maintaining a lighting system as large as that of the Town's. The Town determined that the petitioner was not a responsible bidder ... Accordingly, under these legal authorities, the bid submitted by Basset is nonresponsive and must be rejected. Additionally, under the reasonable criteria set forth in the District's bidding documents, Basset is not a responsible bidder. Accordingly, the District cannot legally award the contract for the Project to Basset. See Pub. Contract Code § 20503. C The Material Irregularities in Basset's Bid Cannot Be Waived By statute, any material changes to the bidding requirements had to be made at least 72 hours before bids were opened and by written notice to all bidders. Pub. Contract Code § 4104.5. Given the restrictions that Public Contract Code Section 4104.5 imposes on making changes to bidding requirements, the District has no discretion to waive bidding requirements. "[W]here a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion." Great Western Savings & Loan Assn v. Los Angeles, 31 Cal. App. 3d 403, 1413 (1973). In Eel River Disposal & Resource Recovery, Inc., 221 Cal. App. 4th 209, 238 (2013), the Court of Appeal addressed a situation very similar to the one here. In Eel River, as in this matter, June 17, 2021 Regular Board Meeting Agenda Packet- Page 58 of 168 Page 12 of 19 Central Contra Costa County Sanitary Sewer District Page 5 of 2 May 28, 2021 the bidding requirements addressed the qualifications that the bidders had to possess. In awarding a contract, the governing body for the agency had emphasized that the company that received the contract was a local employer. Effectively, the governing body had changed the qualifications for a successful bid. The Court of Appeal determined that award of the contract was illegal, ruling that a contract must be "set aside where specifications are changed after the bidding has been closed." See Valley Crest Landscape, Inc. v. Davis, 41 Cal. App. 4th 1432 (1996) Waiving bidding requirements to allow Basset'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 the District's bidding requirements uniformly would be arbitrary, capricious, and grounds for setting aside an award of the project. Id. In addition, waiving or changing requirements after the opening of bids would provide a competitive advantage Basset over not only the companies that actually submitted bids, but also contractors that could have submitted a bid if they had not been required to meet the experience requirements of the Instructions to Bidders. Given the competitive advantage that Basset obtained, the irregularities in Basset's bid cannot be waived. Valley Crest Landscape, Inc. v. Davis, 41 Cal. App. 4th 1432 (1996). D. The District Lacks Authority To Accept Basset's Bid Basset's bid is nonresponsive and cannot be accepted. MCM Construction, Inc. v. City and County of San Francisco, 66 Cal. App. 4th 359, 374 (1998) (failure to include dollar amount in subcontractor listing form rendered bid nonresponsive); Glasgow, Inc. v. Penn. Dept. of Transportation, 851 A.2d 1014 (Pa. Commw. Ct. 2004) (bid nonresponsive because of noncompliance with DBE requirements); Carl Bolander & Sons Co. v. City of Minneapolis, 451 N.W.2d 204 (Minn. 1990) (bid nonresponsive because of failure to list WBE requirements). The requirements Basset violated are mandated by state law. The District lacks discretion to violate the law. "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an `abuse' of discretion.." Horsford v. Bd. of Trustees of Cal. State Univ. 132 Cal. App. 4th 359, 393 (2005). E. Any Contract Awarded To Basset Will Be illegal And Void A contract awarded to Basset 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). Payment of any funds on a contract awarded to Basset 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 June 17, 2021 Regular Board Meeting Agenda Packet- Page 59 of 168 Page 13 of 19 Central Contra Costa County Sanitary Sewer District Page 6 of 2 May 28, 2021 agreement made without authority of law." A concerned taxpayer, as well as CTI, may bring an action to enjoin payments on a contract awarded Basset. Rubino v. Lolli, 10 Cal. App. 3d 1059 (1970); Miller v. McKinnon, 20 Cal. 2d 83 (1942). Basset 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). Conclusion This Project involves risky work with significant safety factors that affect numerous multi-million dollar homes and hundreds of residents through the hills of Walnut Creek. CTI has 23 years of experience in exactly the type of work at issue; its bid is a negligible $100,000 higher than Basset's. Please be advised that CTI is prepared to move forward legally and seek an injunction against award of the Project to Basset, who is neither a responsible nor a responsive bidder, and to bar the arbitrary rebidding the project. CTT reserves all of its remedies. If you have any questions, please contact me undersigned directly at 510-782-5335, as I am the person handling this bid protest. My address is listed on our letterhead, above. Sincerely, -—- Chris Asbury Manager California Trenchless Inc. Cc Via U.S. Mail: Shane McCarthy, President Basset Engineering PO BOX 22095 SAN FRANCISCO, CA 94122 Cc: Leonidou& Rosin Professional Corporation June 17, 2021 Regular Board Meeting Agenda Packet- Page 60 of 168 Page 14 of 19 Attachment 4 QUALIFIED EXPERIENCE REVIEW Excerpt-Volume 1,Section 10, Paragraph 3. "The District expressly reserves the right to reject any bid if it determines that the Bidder's business and technical organization,finacial resources,plant and equipment to be used in performing work, or lack of successful experience in performing work of similar type and magnitude,is such that it is not in the District's best interest to accept the Bidder's Bid." Business and Technical Organization: Has General License Has DIR Registration Owns Business Licenses at several Cities he is doing work at.(SF,Sunnyvale, Hayward, Mill Valley...; Financial Resources: Able to meet bonding requirements. Bonding from Hartford Fire Insurance Company(Page 2) Able to meet Insurance requirements. Walsh Carter&Associates Insurance Services,LLC as well as AON Insurance Co. Plant and Equipment to be Used: Owns heavy construction equipment(Backhoes,Excavators,Skid Steer,Dump Trucks,Sweeper,etc.) Main staging yard located at 700 Gilman St. in SF. Successful Experience in Performing Work of Similar Type and Magnitude: Personal Experience on several projects when he was part of M Squared Construction Experienced leadership and crews from Contractors that have worked at Central San(KJ Woods, Ranger Pipelines,etc.) Under Contract with San Francisco Public Works($2.5M),meets magnitude and similar work. City of Sunnyvale(560k) Newly awarded Page 1 of 2 1.(Attachment)Letter from The Hartford Group dated 05-27-2021 -considered as Page 2 of 2 June 17, 2021 Regular Board Meeting Agenda Packet- Page 61 of 168 Page 15 of 19 Attachment 4 Page 2 of 2 Prepare. Protect. Prevail. THE HARTFORD Business Insurance Employee Benefits Auto Home May 27, 2021 Central Contra Costa Sanitary District County of Contra Costa State of California RE: Basset Engineering, Inc.: Capability to provide Performance and Payment bonds District Project 8465—Walnut Creek Sewer Renovations, Phase 15 To Whom This May Concern: Hartford Fire Insurance Company acts as surety for Basset Engineering, Inc. Hartford Fire Insurance Company is rated A+ (Superior) by A.M. Best with a financial size category of XV($2 Billion or grater). Hartford Fire Insurance Company is listed in the Federal Register as licensed, admitted surety for California. Hartford Fire Insurance Company's U.S. Treasury Limit exceeds$1 Billion. We have every confidence in Basset Engineering, Inc.'s abilities to successfully undertake, manage and complete projects. If Basset Engineering, Inc. is awarded a contract for the above referenced project and requests that Hartford Fire Insurance Company is prepared to provide the necessary Performance and/or Payment Bonds. If there are further questions, please feel free to contact me. Sincerely, I ..e, ly�lxi 7ko-fl" vGr"LZ) Andrew Holloway San Francisco Regional Bond Manager The Hartford Financial Services Group, Inc. 2001 N. Main Street I Suite 660 Walnut Creek, CA 94596 Direct: 415-836-4837 Andrew.holloway@thehartford.com June 17, 2021 Regular Board Meeting Agenda Packet- Page 62 of 168 Page 16 of 19 Attachment 5 REPLY TO: CRAIG WALLACE Phone:415-394-6688 cwallace@smithcurrie.com June 3, 2021 Via Email: kyoung(a centralsan.orl! Central Contra Costa County Sanitation District c/o Katie Young, Secretary of the District 5019 Imhoff Place Martinez, CA 94553 Re: District Project 8465 —Walnut Creek Sewer Renovations, Phase 15 Response to California Trenchless, Inc., Bid Protest Dear Sanitation District: We represent Basset Engineering, Inc. ("Basset"), the low bidder on the above project. California Trenchless, Inc. ("CTI") submitted a bid protest to the Central Contra Costa County Sanitation District("District") on 05.28.21 and this is Basset's response to the bid protest. The bid protest should be rejected and the contract awarded to Basset as the lowest responsive bidder. CTI's protest is based on the meaning of a word—Bidder—in connection with Basset's qualification experience. CTI argues that the word"Bidder" can only mean the corporate entity and cannot in any way reflect the people who act for and as the corporation. Specifically, CTI argues that Basset's experience listings in its bid reflect only the experience of its corporate officers and leaders, and not of the corporate entity"Bidder," so the bid should be rejected. CTI's protest improperly attempts to rewrite the bidding instructions and add requirements that do not actually exist and which would not be in the District's best interest. Basset has both the experience and the financial wherewithal to perform the District's project. Basset is currently the prime contractor for similar projects for other municipal entities who necessarily determined that Basset has the requisite experience, including the City of San Francisco and the City of Sunnyvale. Basset's officers have over 25 years of combined experience in the industry much of its focused on municipal sewer and pipe projects. Demonstrating Basset's financial strength is the fact that it is fully prepared and able to provide the required performance and payment bond for this project. ■ SMITHCURRIE.COM SUITE 1300 OFFICE 415 394 6688 275 BATTERY STREET FAX 415 3946687 SAN FRANCISCO,CA 94111 June 17, 2021 Regular Board Meeting Agenda Packet- Page 63 of 168 Page 17 of 19 Ms. Katie Young Central Contra Costa County Sanitation District June 3, 2021 SMITH CURRIE Page 2 of 3 Naturally, a corporation only acts through its employees and representatives based on their knowledge and experience. (See, CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.AppAth 1141, 1146, "[A] corporation, as an artificial entity created by law, can only act in its affairs through its natural person agents and representatives;"Moore v. Phillips (1959) 176 Cal.App.2d 702, 709, "[i]n order to promote the corporate interests, a corporation can act only through its agents . . .. [¶] That a corporation can have knowledge only through its officers and agents is elementary;"Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 77, "[a] corporation can act only through its individual employees.") Indeed, for purposes of construction, the corporation's leaders have the critical knowledge and experience needed to competently perform the work. A construction corporation which demonstrates experience based on its officers' experience and knowledge is more qualified than a corporation which may have performed projects in the past but the employees who led such work are no longer with the corporation. Bearing that reality in mind, CTI argues that for the experience qualification for the bid, only the experience of the "Bidder,"the corporate entity, should be considered. That is misplaced and would not be in the District's best interest. The District wants the project to be a success, meaning the work satisfactorily performed, which means that the actual people leading the construction need to have the necessary experience and knowledge to perform the work. Basset's experience qualifications meet this requirement. The bid documents themselves give the District the complete discretion to determine if the experience qualifications are "in the District's best interests to accept the Bidder's bid." (See Volume 1 of 3 Bid Documents, Bidding Conditions, § 10 (p. 14).) Moreover, the bid documents do not define "Bidder" as only the corporate entity,particularly for the experience qualifications. The bid documents do not state that the corporate officers' experience will not be considered to evaluate the experience qualifications of a bidder. The bid documents do state certain basic guidelines regarding a bidder's experience qualifications. (CTI agreed in its protest at page 4 that these are "reasonable criteria set forth in the District bidding documents.") Had the District desired, it could have placed more stringent guidelines on the experience qualifications in the bid documents, or even mandated that the experience can consist only of the corporate entity's experience and not the experience of the corporate leaders actually performing the work. But it did not do that. This allows the District to make full use of its discretion to determine what is in the best interests of the District regarding a bidding contractor's experience to perform the work. CTI's argument,which is, in practical effect, that such strict limitations should now be read in or added to the bid documents to disqualify Basset's bid, must be rejected. As noted above, Basset's officers and leaders have substantial knowledge and experience performing the type of work to be done for the project, including on projects on which they worked before they became officers of Basset. CTI asserts that the Polk Streetscape project which Basset listed as part of its experience in its bid was not performed by Basset. However, Basset's President, Shane McCarthy, managed that project for the prime, M Squared,prior to forming Basset. CTI's assertion of a"false certification"regarding this experience is soundly misplaced. Consistent with the bid documents, the District should exercise its discretion to June 17, 2021 Regular Board Meeting Agenda Packet- Page 64 of 168 Page 18 of 19 Ms. Katie Young Central Contra Costa County Sanitation District June 3, 2021 SMITH CURRIE Page 3 of 3 consider these experience qualifications and conclude Basset is fully qualified to perform the work. CTI's protest letter contains a number of other arguments, all apparently premised on its assertion that the corporate entity is not properly experienced. CTI argues variously that Basset's bid was "nonresponsive" (see heading letter"B" and"D"), that Basset was not a responsible bidder(heading `B"), that accepting Basset's bid would require a waiver of the bidding requirements (heading"C"), and last, that any contract awarded to Basset would be illegal and void(heading"E") and even threatens the District with an injunction if it does not award the project to CTI. CTI cites to a host of case law snippets, along with the California Constitution, and a number of statutes,but wholly fails to provide any argument as to why such case law, Constitutional mandates, or statutes are applicable or provide any enlightenment to the sole issue upon which the protest is based, i.e.,whether the undefined term"Bidder" in the experience qualification requirements of the bidding documents is strictly limited to only the corporate entity, or whether the District can and should exercise its discretion to consider the experience qualifications of those people in the bidding corporation actually responsible for the performance of the work. CTI provides no discussion about this issue in its headings `B" through`B." For the reasons above, Basset requests the District reject CTI's bid protest and award the contract to Basset as the lowest responsive bidder. Very tt ours, Cra* Wallace Cc: client(via email) Damasio Z. Aragon,. P.E. (CCCSD) (via email: dzepeda(d),centralsan.org) Alexandr Mestetsky, P.E. (CCCSD) (via email: sashagcentralsan.org) Chris Asbury (California Trenchless, Inc.) (via email: casbury(a califomiatrenchless.com) June 17, 2021 Regular Board Meeting Agenda Packet- Page 65 of 168 Page 19 of 19 ATTACHMENT 6 WALNUT CREEK SEWER RENOVATIONS, PHASE 15 DISTRICT PROJECT 8465 POST-BID/PRECONSTRUCTION ESTIMATE % Of Item Description Amounts Construction No. Cost 1. CONSTRUCTION a. Construction Contract $3,117,488 b. 15% Contingency $467,512 c. Permits $55,000 SUBTOTAL- CONSTRUCTION COST $3,640,000 100% 2. CONSTRUCTION MANAGEMENT a. District Forces - Construction Management (Engineering, Survey) $190,000 - Public Relations/Right-of-Way $20,000 - Operations (Collection System Operations) $30,000 b. Consultants - Inspection $180,000 - Material Testing/Arborist/Others $40,000 SUBTOTAL - CONSTRUCTION MANAGEMENT $460,000 13% 3. PREBID EXPENDITURES a. Engineering (Design, Survey, Right-of-Way, Drafting) $580,000 SUBTOTAL - PREBID EXPENDITURES $580,000 16% 4. TOTAL ESTIMATED PROJECT COST $4,680,000 June 17, 2021 Regular Board Meeting Agenda Packet- Page 66 of 168