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Home My WebLink About03.a. Reject Bid Protest by Roofing and Solar Construction, Inc.; Award a construction contract to Pac Shield Roof Services, Inc. for the Pump and Blower Building Roof Replacement District Project 7370Page 1 of 36 Item 3.a. DCENTRALSAN BOARD OF DIRECTORS POSITION PAPER DRAFT MEETING DATE: MARCH 23, 2023 SUBJECT: REVIEW DRAFT POSITION PAPER TO REJECT BID PROTEST BY ROOFING AND SOLAR CONSTRUCTION, INC.; AWARD A CONSTRUCTION CONTRACT IN THE AMOUNT OF $973,006 TO PAC SHIELD ROOF SERVICES, INC., THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER FOR THE PUMP AND BLOWER BUILDING ROOF REPLACEMENT, DISTRICT PROJECT7370; FIND THE PROJECT IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITYACT; AND AUTHORIZE THE GENERAL MANAGER TO INCLUDE TWO ALTERNATIVE BID ITEMS IN THE TOTAL AMOUNT OF $307,121 TO REPLACE THE MACHINE SHOP AND BOARD ROOM ROOFS SUBMITTED BY: INITIATING DEPARTMENT: MARK WENSLAWSKI, ASSOCIATE ENGINEERING AND TECHNICAL SERVICES - ENGINEER CAPITAL PROJECTS REVIEWED BY: NATHAN HODGES, SENIOR ENGINEER EDGAR J. LOPEZ, CAPITAL PROJECTS DIVISION MANAGER DANEA GEMMELL, PROVISIONAL DIRECTOR OF ENGINEERING AND TECHNICAL SERVICES KENTON L. ALM, DISTRICT COUNSEL ISSUE On March 1, 2023, 10 bids were received and opened for the construction of the Pump and Blower Building Roof Replacement, District Project 7370 (Project). The Board of Directors must consider award of the contract or reject bids within 50 days of the bid opening. A protest from the second low bidder has been received and the Board also needs to consider the merits of the protest and take action to reject or accept the protest. BACKGROUND The Pump and Blower Building and Plant Operations Building consist of multiple roofs that have been replaced at different times since the 1970s. Some roofs were subsequently expanded in the 1980's and 1990's due to various building additions. A roof assessment was recently completed at the treatment plant and the roof sections in this Project are the highest priority for replacement. The roofs under this project March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 3 of 44 Page 2 of 36 are at or near the end of their useful life for a tar and gravel system (30 years), or have demonstrated deterioration evidenced by regular leaks, continued repairs and observed deficiencies during other capital projects. This Project will replace the existing built-up tar and gravel system with new roofing, new drains, flashing, and sheet metal to maintain protection of the various critical equipment or systems, and Operations office spaces beneath as shown in Attachment 1 — Project Location Map. Central San staff prepared the plans and specifications for the Project with the assistance of Calpo, Hom and Dong Architects. This Project was advertised on February 1 and 7, 2023. The Engineer's estimate for construction of the base bid is $1,050,000 ($1,350,000 with alternate bid items). Ten sealed bids ranging from $973,006 to $1,743,135 were received and publicly opened on March 1, 2023 (Attachment 2). Pac Shield Roof Services, Inc. (Pac Shield) submitted the lowest bid. On March 3, 2023, the second low bidder, Roofing and Solar Construction, Inc. (RSC), submitted a bid protest (Attachment 3). The protest was forwarded to Pac Shield, who responded to the protest in a letter dated March 6, 2023 (Attachment 4). 1 n general, RSC raises four protest items, of which three items are related to responsiveness, and a fourth item related to Pac Shield's responsibility as a contractor. RSC's protest claims that Pac Shield (1) listed a roofing manufacturer which is not compliant with the roofing technical specification; (2) and the listed roofing product (Soprema) does not meet the warranty requirements in the technical specifications; (3) Pac Shield only listed a demolition subcontractor, and not a subcontractor for the hazardous material abatement work identified in the project documents; and (4) is behind on paying its workers' contributions to the Bay Area Roofers Trust Funds. Firstly, Pac Shield's bid named Soprema as the roofing manufacturer, which is the second -named manufacturer listed in the roofing technical specifications for the Project. RSC listed Garland, the first - named manufacturer listed. The General Conditions for the bid addresses the listing of more than one acceptable product or manufacturer. The project documents, specifically Volume 2: Project Manual, Part V General Conditions, General Condition 15, states, "The first -named manufacturer of particular equipment, materials, and/or products is the basis for the design shown on the Project Drawings. A second or subsequently named manufacturer of particular equipment, materials, and/or products has been determined to be an acceptable equal but may require modifications in the Project design and the Project's ultimate construction to accommodate the use of the equal." Therefore, Soprema was deemed an equal manufacturer to the first -named manufacturer, Garland prior to submission of bids. The determination to list Soprema in the technical specifications as an acceptable manufacturer of roofing systems was based on independent input from professionals and engineers working for Central San and staff's experience with using Soprema on previous roof projects. The same is also the case for the other two listed manufacturers in the technical specifications. Any of the bidders could have based their bid pricing on any of the four listed manufacturers. Secondly, the roof technical specifications reference products, installation, and warranties that Garland offers since this product was listed as the first -named manufacturer. The other manufacturers offer similar or equal products and warranties, and have been determined to be acceptable by Central San and the design team. Thirdly, the basis of the protest was that no subcontractor was listed for the hazardous material abatement work; however, Pac Shield did list Alliance Contracting Services, Inc. (Alliance) as a subcontractor to perform "demolition" in their bid documents. The Project scope is basically to demolish and install new roofing and related waterproofing. A significant part of the demolition work includes abatement and disposal since the materials requiring abatement is within the existing roofing systems being removed. Staff's understanding of the meaning of "demolition" as a description of the work to be performed by a subcontractor for this Project can cover both demolition and abatement, since the work cannot be March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 4 of 44 Page 3 of 36 separated. As a standard for all bid evaluations, staff checks if subcontractors listed have the pertinent licenses, registrations or certification to perform the work. For Alliance, they have the necessary licenses for demolition and abatement. For responsiveness, staff contacted Pac Shield and Alliance to confirm that the abatement work is included in the pricing. Therefore, staff has no evidence, or information in the bid documents submitted by Pac Shield that would indicate an error or material mistake had occurred for listing Alliance as a subcontractor. Fourthly, RSC's protest included the allegation that "Pac Shield is purportedly delinquent in paying contributions to the Bay Area Roofers Trust Funds for its workers". Central San requires that prevailing wages be paid on the project as defined by the State's Department of Industrial Relations (DI R). Staff has contacted and researched the DI R and the Contractor State License Board websites and found Pac Shield to be current and active in their registrations and found no evidence or evidence provided that would disqualify them from performing the work of this project. Additional letters from RSC and Pac Shield have been provided as Attachment 5. These letters, along with phone conversations with both parties, have been reviewed and do not change staff's previous evaluation. Therefore, based on the technical and commercial review of the bids and basis of protest, the Engineering department recommends rejection of the bid protest submitted by RSC. Staff concludes that Pac Shield is the lowest responsive bidder, and to date has no evidence that requires staff to contend that Pac Shield is not a responsible bidder. An Alternate Bid Schedule was included in the bid forms for the replacement of the roof sections over the Machine Shop and Board Room. The engineer's estimate for the alternate pricing was $300,000. Bid prices ranged from $204,026 to $380,064 from the ten bidders. Staff recommends including both roofs for a total cost of $307,121 as provided by Pac Shield. This will bring the total construction contract to $1,280,127. Central San will administer the construction contract and provide contract administration, inspection, office engineering, and submittal review. Consultant inspection and engineering services will be used to supplement staff under existing Capital Projects as -needed agreements. California Environmental Quality Act (CEQA): Staff has concluded that this Project is exempt from CEQA under District CEQA Guidelines Section 15301, since it involves minor alterations to existing public facilities involving no expansion of use, and CEQA Guidelines Section 15302, since it involves replacement of existing public facilities at the same location and with the same purpose. Approval of this Project will establish the Board of Directors' independent finding that this Project is exempt from CEQA. ALTERNATIVES/CONSIDERATIONS Reject all bids, which is not recommended. The existing roofs are past their useful life and are in need of replacement before the next wet weather season. Postponing the replacement work would result in additional costs for maintenance, repairs, and rebidding. The Board could accept the grounds from the protest and staff's recommendation to reject the protest. If the Board elects this alternative, staff would then recommend to reject all bids. Hold a formal "responsible contractor' hearing if bonafide evidence were to be provided demonstrating that such an allegation is well founded. The Board could consider other alternatives with the protest and discuss with District Counsel; then provide direction to staff. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 5 of 44 Page 4 of 36 FINANCIAL IMPACTS The total estimated project cost is $1,700,000 which includes planning, design, construction contract, contingency, and construction management costs, as shown in Attachment 6. The Project is being funded under the Annual Infrastructure Replacement, District Project 7370 included in the Fiscal Year 2022-23 Capital Improvement Budget on page 242 with a total estimated project budget of $6,405,000. There are sufficient funds available for the construction of the Project. COMMITTEE RECOMMENDATION The Engineering and Operations Committee reviewed this matter at its March 23, 2023 meeting and recommended RECOMMENDED BOARD ACTION Staff recommends the following Board actions: 1. Find that the Project is exempt from CEQA; 2. Reject bid protest by Roofing and Solar Construction, Inc.; 3. Award a construction contract in the amount of $973,006 to Pac Shield Roof Services, Inc., the lowest responsive and responsible bidder for the construction of the Pump and Blower Building Roof Replacement, District Project 7370; 4. Include two alternative bid items in the total amount of $307,121 to replace the Machine Shop and Board Room roofs; and 5. Authorize the General Manager to execute the Contract Documents subject to submittal requirements. Strategic Plan Tie -In GOAL FIVE: Safety and Security Strategy 2 - Protect Personnel and assets from threats and emergencies GOAL SIX: Infrastructure Reliability Strategy 1 - Manage assets optimally, Strategy 2 - Execute long-term capital renewal and replacement program ATTACHMENTS: 1. Project Location Map 2. Summary of Bids 3. RSC Formal Bid Protest dated 03-03-23 4. Pac Shield Formal Protest Response dated 03-06-23 5. Additional Correspondence (3 letters) 6. Post -Bid / Preconstruction Estimate March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 6 of 44 Page 5 of 36 \u 0 150 300 iiia FEET Central Contra Costa PUMP AND BLOWER BUILDIN Sanitary District ROOF REPLACEMENT 4rfth District Project 7370 LEGEND PROJECT SITES Attachment 1 ATTACHMENT 2 Page 6 of 36 PUMP AND BLOWER BUILDING ROOF REPLACEMENT DISTRICT PROJECT 7370 SUMMARY OF BIDS PROJECT NO.: 7370 NO. OF ADDENDA: 1 DATE/TIME: MARCH 1, 2023/2 PM PROJECT NAME: PUMP AND BLOWER BUILDING ROOF REPLACEMENT PROJECT MANAGER: MARK WENSLAWSKI PROJECT LOCATION: 5019 IMHOFF PLACE, MARTINEZ, CA ENGINEER'S ESTIMATE: $1,050,000 NO. BIDDER BID PRICE 1 Pac Shield Roof Services, Inc. $973,006 Modesto, California 2 Roofing and Solar Construction, Inc. $1,022,198.10 Santa Rosa, California 3 Stronger Building Services $1 075 000 San Leandro, California ' 4 San Francisco Roofing Services, Inc. $1,200,000 San Francisco, California 5 State Roofing Systems, Inc. $1,217,661 San Leandro, California 6 I&A Contractor, Inc. $1 299 000 Redwood City, California ' 7 Waterproofing Associates, Inc. $1,308,200 Santa Clara, California 8 Andy's Roofing Company, Inc. $1 373 200 San Leandro, California ' 9 Western Roofing Service $1,395,000 San Leandro, California 10 Pioneer Contractors, Inc. $1,743,135 San Francisco, California BIDS OPENED BY: /s/Katie Young DATE: March 1, 2023 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 8 of 44 ^A k"T CONSTRUCTION INC License # 1018877 / DIR #1000043217 630 Hunter Lane, Santa Rosa, CA 95404 Certified Woman -Owned Business SENT VIA EMAIL March 3, 2023 CONTRA COSTA SANITARY DISTRICT 5019 Imhoff Place Martinez, CA 94553 Attn: Mark Wenslawski Attachment 3 RE: FORMAL BID PROTEST — PAC SHIELD ROOF SERVICES — PUMP AND BLOWER BUILDING ROOF REPLACEMENT PROJECT Dear Mr. Wenslawski: On behalf of Roofing & Solar Construction, Inc., a certified, small woman -owned business, please consider this a formal protest of Pac Shield Roof Services' bid for the above -referenced project. This protest is supported by the following: 1) Pac Shield listed Soprema as the roofing material manufacturer they plan to use. Per section 1.12 of the project specifications and the attached product comparison, Soprema's products do not meet the minimum technical specification requirements in comparison to Garland's, whom RSC listed. 2) Per Addendum #1, dated, 2/22/23, extensive asbestos has been identified throughout the project. Pac Shield listed only one subcontractor, Alliance Contracting Services, for "roof demolition" and cannot self -perform the asbestos abatement as they lack the required OSHA certifications. Moreover, the value of the abatement is more than 1/2 of 1% of Pac Shield's bid price ($4,865.03) and therefore they were required to list a certified asbestos subcontractor. RSC did list a certified asbestos subcontractor. 3) Pac Shield is purportedly delinquent in paying contributions to the Bay Area Roofers Trust Funds for its workers. Fringe benefits make up a large portion of the prevailing wage rates and failure to make timely contribution payments is a violation of the California Labor Code. Based on the above, Pac Shield's bid should be deemed non -responsive and rejected by the District. As a result, RSC, the second lowest responsible, responsive bidder, should then receive the project award. Page 7 of 36 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 9 of 44 Page 8 of 36 CCSD Bid Protest March 3, 2023 Page 2 Please let me know if you have any questions or need more information. We look forward to receiving notice of the award. Sincerely, x Con ruction, Into f 1, COO Cc: Steven Copeland, Esq. Rafael Lapizco, Pac Shield Roof Services March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 10 of 44 Page 9 of 36 Central Contra Costa Sanitary District PBB & POB Comparison Sheet The Garland Company Inc Roll Goods: StressPly IV Plus Thickness - 180mils Tear Strength - MD 510 Ibf XD 510 Ibf Tensile Strength - MD 310 Ibf/in XD 310 Ibf/in Elongation at Maximum Tensile MD 9.0% XD 8.0% Low Temperature Flexibility - -40 degrees F SA Base IV Thickness - 110mils Tear Strength - MD 105 Ibf. XD 1001bf. Tensile Strength - MD 751bf/in XD 501bf./in. Elongation at maximum tensile - MD 5% XD 5% Low Temperature Flexibility - 0 degrees F - pass Soprema Roll Goods: Sopralene Flam 180 FR GR WH Thickness - 160mils Tear Strength - MD 1251bf XD 851bf Tensile Strength - Unknown Low Temperature Flexibility - -15 degrees F Sopralene Flam Stick Thickness - 98mils Tear Strength - MD 125 Ibf XD 85 Ibf Tensile Strength - Unknown Low Temperature Flexibility - -15 degrees F Other Comparisons: 1. Per the specification Section 1.05 J - "The Roofing System Manufacturer will provide field inspections three times a week during the entire period of installation until all construction is completed and to be performed by a full time employee of the manufacturer at no additional cost to the owner." Soprema does not meet this requirement where as Garland is obligated to perform these inspections to complete our warranty process. This also is a liability issue to ensure that the roof system is being installed per spec. 2. Section 1.09 A.2 - "Provide job site inspections a minimum of three days a week" - Soprema does not meet this requirement where as Garland is obligated to perform these inspections to complete our warranty process. This also is a liability issue to ensure that the roof system is being installed per spec. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 11 of 44 Page 10 of 36 3. Section 1.12 A - "Upon completion of the work, provide the Manufacturer's written and signed NDL Warranty, warranting that, if a leak develops in the roof during the term of this warranty, due either to defective material or defective workmanship by the installing contractor, the manufacturer shall provide the Owner, at the Manufacturer's expense, with the labor and material necessary to return the defective area to a watertight condition. 1. Warranty Period: 30 years from date of acceptance." Soprema does not issue a 30 year No Dollar Limit (NDL) Warranty. 4. Section 1.12 A continued - "...Warranty shall be solely provided by the roof system manufacturer and must cover the calculated wind speed of 115mph. No 3rd party warranties, or insurance riders will be accepted." Soprema does not cover the required wind speed of 115mph, as their calculated wind speed is 74mph. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 12 of 44 Page 11 of 36 Home A CONTRACTORS STATE LICENSE BOARD Q0 OContractor's License Detail for License # 1031725 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations. r CSLB complaint disclosure is restricted bylaw(B&P7124.6) If this entity is subject to public complaint disclosure click on link that will appear below for more information. Click here for a definition of disclosable actions. Only construction related civil judgments reported to CSLB are disclosed(B&P7071.17). o Arbitrations are not listed unless the contractor fa its to comply with the terms. Due to workload, there maybe relevant information that has not yet been entered into the board's license database. Data current as of 3/2/2023 1:30:20 PM PAC SHIELD ROOF SERVICES INC 5151 PENTECOST DR STEA-1 MODESTO, CA 95356 Business Phone Number:(800) 689-4716 Entity Corporation Issue Date 10/09/2017 Reissue Date 09/16/2020 Expire Date 09/30/2024 This license is current and active. All information below should be reviewed. 0 C39-ROOFING � C43-SHEETMETAL Contractor's Bond This license filed a Contractor's Bond with OHIO CASUALTY INSURANCE COMPANY (THE), Bond Number: 999060543 Bond Amount: $25,000 Effective Date: 01/01/2023 Contractor's Bond History Bond of Qualifying Individual The qualifying individual RAFAEL LAPIZCO certified that he/she owns 10 percent or more of the voting stock/membership interest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 09/16/2020 This license has workers compensation insurance with the CAROLINA CASUALTY INSURANCE COMPANY Policy Number:CAR Effective Date: 12/31/2022 Expire Date:12/31/2023 Workers' Compensation History March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 13 of 44 PAC SHIELD ROOF SERVICES W Attn: Contra Costa Sanitary District Attachment 4 Page 12 of 36 ---- Formal Protest Response Letter Mark Wenslawski, Associate Engineer RE: Pump and Blower Building Roof Replacement Project 5019 Imhoff Place Martinez, CA 94553 Date: Monday, March 6, 2023 Dear Mr. Wenslawski, PAC SHIELD ROOF SERVICES, Inc., ("PAC SHIELD") is a federally certified Small Business Enterprise (SBE) and Disadvantaged Business Enterprise (DBE), and is state certified, as a Minority Business Enterprise (MBE), Small Business Enterprise (SBE) and certified as well, in Small Business for the Purpose of Public Works (SB — PW). We are in receipt of your March 3, 2023, correspondence regarding the bid protest from Roofing & Solar Construction, Inc. ("RSC"). In its attempt to force Contra Costa Sanitary District (the "District") to pay more for the project, RSC attempts to create issues with PAC SHIELD's bid where none exist. As outlined below, PAC SHIELD is the lowest responsive, responsible bidder on the project. Applicable law provides that a construction contract such as this one "must be awarded to the lowest bidder unless it is found that he is not responsible, i.e., not qualified to do the particular work under consideration." (City of Inglewood v. Super. Ct., (1972) 7 Cal.3d 861, 867.) Put simply, a "bidder is responsible if it can perform the contract as promised." (MCM Constr., Inc. v. City and County of San Francisco, (1998) 66 Cal.AppAth 359, 368.) A successful bid must also be "responsive." The question of whether a bid is "responsive" to the bidding specifications is straightforward and, simply put, a "bid is responsive if it promises to do what the bidding instructions require." (Id.) PAC SHIELD is the lowest, responsive, responsible bidder. RSC's first claim that PAC SHIELD's bid must be rejected because RSC believes SOPREMA, the roofing manufacturer PAC SHIELD listed, does not comply with the specification is wrong. Section 07 55 00, Part 2, Subsection 1.01 lists acceptable roofing manufacturers for this project. Section 1.01, (A) (2) provides an acceptable manufacturer is "SOPREMA", which is the manufacturer PAC SHIELD listed in its bid. Given that PAC SHIELD's bid listed a manufacturer that was specifically approved by the project specifications, PAC SHIELD's bid is responsive. Moreover, even if the bid specifications only called for Garland, as RSC wrongfully claims, the project specifications and Public Contract Code Section 3400 requires that the District accept an equal product. Here SOPREMA clearly meets the overall intent of the specifications and the design, as SOPREMA's presented assembly for the project is rated for the wind speeds at 115-mph and the thirty- year warranty term, which is likely why the District listed it in the project specifications as an acceptable manufacturer. Page 13 of 36 ---- PAC SHIELD ROOF SERVICES W Although not necessary, SOPREMA has provided supporting documents to indicate its products meet the overall intent of the spec and design, and the performance requirements listed above. To allege that every product needs to be identical to Garland, would ultimately lead you to a proprietary spec in which Garland would be in violation of the Public Contract Code Section 3400. " To elaborate on the aforementioned assembly details and comparison sheet 1 wanted to add the following - Without getting too in dept with CA Public contracting code, identifying a specific product performance value that are not equal to all acceptable manufacturers is considered a proprietary specification. This being said, all manufacturers will have a variance in which similar/equal products are constructed Looking at the comparison will allow the district to see that SOPREMA's products are very durable in comparison but there are two major factors 1 would like to identify that are in the District's benefit for long term performance. Elongation - SOPREMA's SBS products have 12x's the elongation in the base ply and 8x s the elongation of the proposed cap sheet from the listed competitor which was left out in their comparison. Elongation is important for 2 reasons - Cyclic fatigue and Thermal shock resistance. This is in relation to high and low temperature performance and long-term fatigue due to high elongation and tensile strength that allows the product to recover. This is critically important when you seethe high to low temperature swings, we see in CA on a daily basis. This time of the year it can freeze overnight and have a 40+ degree rise in temperature during the day. Day in and Day out. The recovery of the product is known as thermal shock resistance. You must have a product that has the ability to expand and contract and recover with the structure for long term performance regardless of material thickness and tear strength. Long term performance issues include alligatoring, seam splits, and separation at roof details and penetrations. Surfacing - Granulated surfacing provides better protection of the layers of roofing material. Without this protection layer the roofing membrane can be directly punctured and damaged by maintenance traffic, roof top equipment or tools. SOPREMA's proposed cap sheet and flashing cap ply are granulated for protection resistance specifically for these reasons. As previously mentioned, SOPREMA will provide in -progress inspections as often as required by CCCSD. Not to exceed the specified requirement of 3x s per week. Warranty and wind speed requirements will also be met as outlined in our assembly letter (NOITW) to meet the districts requirements and intent of the project. "(Excerpt from correspondence dated 3/6/2023 from Pete Estrada, Sales Representative, Northern CA, SOPREMA) RSC makes another baseless claim that PAC SHIELD's bid must be rejected because PAC SHIELD does not hold the required asbestos removal licenses. Again, RSC is wrong. As RSC points out PAC SHIELD listed Alliance Contracting Services, Inc. as a subcontractor. Alliance Contracting Services, Inc. holds a C-22 license, which means it is licensed to perform asbestos abatement. (See enclosed CSLB printout for Alliance Contracting Services, Inc.) Given that Alliance Contracting Services, Inc. is a properly listed subcontractor, and holds the proper certification to abate asbestos, PAC SHIELD's bid is clearly responsive. Page 14 of 36 ---- PAC SHIELD ROOF SERVICES W Finally, in an attempt to try to smear PAC SHIELD, RSC makes an unsubstantiated allegation that PAC SHIELD does not pay its union dues. Beside this being a completely unsubstantiated allegation, it again is not a basis to reject PAC SHIELD's bid. PAC SHIELD properly listed its DIR Registration Number, which is the only requirement in the Bid Documents, nothing in the Bid Documents asks for information regarding status of union payments. Moreover, if the District were to consider this issue in awarding the bid, it would be going beyond the four corners of the bid and the District would need to provide PAC SHIELD with a responsibility hearing. RSC's claim about PAC SHIELD's alleged untimely union due payments goes to PAC SHIELD "responsibility" i.e., PAC SHIELD's qualifications and fitness to perform, while it attempts to mask this determination under the guise of a mere "responsiveness" determination. These standards are not interchangeable, and the distinction between the two carries significant implications with respect to the parties' rights and obligations when a bid protest is submitted. (Great W. Contractors, Inc. v Irvine Unified Sch. Dist., (2010) 187 Cal. App. 4th 1425, 1428 ["The difference is significant not only to the bidder, but to the taxpaying constituency of the public entity."].) Under California law it is clear that disqualification of a bidder on the basis urged by RSC is in fact a responsibility determination, not responsiveness. "A bid is responsive if it promises to do what the bidding instructions demand. A bidder is responsible if it can perform the contract as promised." (Taylor Bus Serv., Inc. v. San Diego Bd. of Educ., (1987) 195 Cal. App. 3d 1331, 1341.). "In most cases, the determination of non responsiveness will not depend on outside investigation or information and a determination of nonresponsiveness will not affect the reputation of the bidder." (Great W. Contractors, Inc., 187 Cal. App. 4th at 1453.) In other words, a responsiveness determination goes to the contents of the bid itself, and whether it offers to do the work requested. A Responsible Bidder is statutorily defined as "a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." (Cal. Pub. Cont. Code, § 1103.) The term responsibility "includes the attribute of trustworthiness, it also has reference to the quality, fitness and capacity of the low bidder to satisfactorily perform the proposed work." (City of Inglewood-L.A. Cty. Civic Ctr. Auth. v. Superior Court, (1972) 7 Cal. 3d 861, 867.). Responsibility is "focused on the bidder, not the bid." (Great W. Contractors, Inc., 187 Cal.AppAth at 1451.) Thus, a responsibility determination is based on the attributes and qualities of the bidder, its past performance, and future ability to perform the project at hand. If the District were to accept RSC's argument and determine PAC SHIELD is not qualified to perform this project, that is exactly the kind of determination that would negatively impact a bidder's reputation. "Whether or not an express finding of nonresponsibility is required [Citation], if a contract is awarded to one other than the lowest monetary bidder, the ineluctable implication is that the latter is not responsible. (City of Inglewood-L.A. Cty. Civic Ctr. Auth. v. 7 Cal. 3d at 867.). Page 15 of 36 ---- PAC SHIELD ROOF SERVICES W Additionally, where a bidder is disqualified based on responsibility grounds, California law requires the bidder be afforded due process regarding said determination. "In making [a responsibility] determination, however, the agency is required to afford a significant level of due process to the bidder, including notice and an opportunity to respond." (D.H. Williams Const., Inc., 146 Cal. App. 4th at 763.) "We hold that prior to awarding a public works contract to other than the lowest bidder, a public body must notify the low monetary bidder of any evidence reflecting upon his responsibility received from others or adduced as a result of independent investigation, afford him an opportunity to rebut such adverse evidence, and permit him to present evidence that he is qualified to perform the contract." (City of Inglewood-L.A. Cty. Civic Ctr. Auth. 7 Cal. 3d at 871.). Thus, if the District were to accept RSC's unsubstantiated claims and reject PAC SHIELD's bid, it would be required to provide PAC SHIELD with a hearing. PAC SHIELD would be able to clearly show it has the experience and financial wherewithal to complete this project. And, the District would be back to awarding the project to PAC SHIELD, but only after substantial delay. RSC's protest must be rejected because PAC SHIELD's bid is responsive, and PAC SHIELD is the lowest responsive, responsible bidder. Regards, R�aelLapizco� Chief Executive Officer PAC SHIELD ROOF SERVICES, INC. CC: Amber Hoiska, Vice President, PAC SHIELD ROOF SERVICES, Inc. Matthew J. Weber, Esquire, Downey Brand Page 16 of 36 SOPREMA® February 17, 2023 Mr. Pete Estrada SOPREMA Sales Representative Re: Notice of Intent to Warrant (NOITW) Central Contra Costa Sanitary District (CCCD) Pump and Blower building Martinez, CA Dear sir or madam. This letter describes materials and assemblies proposed for the subject project as they have been presented to SOPREMA. Please let us know if you believe any of the information indicated below is inaccurate or incomplete so that we may make necessary revisions. SOPREMA warranties: Roofing: Upon successful completion by an authorized SOPREMA contractor, the proposed roofing qualifies for the SOPREMA thirty-year Platinum NDL Roof Warranty (Form 101). Coating: Upon successful completion by an authorized SOPREMA contractor, the proposed coating qualifies for the SOPREMA ten (10) year Standard Coating Warranty (Form C100). Proposed roofing: • Structural deck: Concrete. • Cover board: 1/4-inch SOPRABOARD adhered using DUOTACK 365 insulation adhesive applied in 1/2-inch to 3/4-inch-wide continuous ribbons. Refer to SOPREMA Drawing US.FP.15.01 (enclosed). • SBS base ply: SOPRALENE FLAM STICK self -adhered to the cover board. • SBS cap sheet: SOPRALENE° FLAM 180 FR GR heat welded to the base ply. • Flashing primer: Apply ELASTOCOL 350 Primer to all applicable substrates. • SBS flashing base ply: SOPRALENE FLAM 180 heat welded to the vertical substrate. • SBS flashing cap sheet: SOPRALENE FLAM 180 FR GR heat welded to the flashing base ply. Proposed coating: • Asphalt BUR and Modified Bitumen Pre-Treatment/Primer: o To prevent bitumen bleed -through, apply ALSAN COATING ASPHALT BLEED BLOCKING PRIMER at approximately 1.5-gallons per 100ft2. Allow up to 4-6 hours to completely dry. • Asphalt Built-up Roofing and Modified Bitumen Membrane Flashings: o Modified Bitumen Membrane side and end -laps: Pre -coat all side and end -laps using ALSAN COATING AC 401 applied at 24 wet mils (1.5 gals/100ft2). Ma O �LI R � IV pec�af 0UTF� Committee Me`efing Age �da FOEE kei`3l�age� 1F�JCo�314334, 4289 WWw.50PREMA.U5 Page 17 of 36 February 17, 2023 Mr. Pete Estrada SOPREMA Sales Representative Page 2 Proposed coating (continued): • Apply two (2) coats of ALSAN COATING AC 401: o Base coat: 24 wet mils (1.5-gallons per 100 ft2). o Topcoat: 24 wet mils (1.5-gallons per 100 ft2). o Total coating thickness: 48 wet mils (3-gallons per 100 ft2) for a finished 24 mils dry film thickness. Additional items: The components and attachment requirements proposed by SOPREMA include the minimum requirements necessary to offer the proposed warranty. SOPREMA products and products sold by SOPREMA are included in the proposed SOPREMA warranty. Non-SOPREMA products and materials not sold by SOPREMA are excluded from SOPREMA warranty coverage. Please refer to SOPREMA US published documentation, Product Data Sheets, Safety Data Sheets, details, agency approvals and other applicable references. Please contact me at 800-356-3521 or kdusute@soprema.us if you have questions or require additional information regarding this project. Sincerely, /�L "�. 6,—,Z Kevin M. Dusute Technical Coordinator Supervisor kdusute@soprema.us cc: Project File Enc: US.FP.15.01 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 19 of 44 Page 18 of 36 SOPRBNA' Design Wind Speed Rider Rider No. 101-000000-ET-2 Warranty No.: 101-000000-ET I Warran Start Date: 00 00 2023 Building Name: Central Contra Costa Sanitary District (CCCD)-Pump & Blower Bldg. The Basic Design Wind Speed (V in the Table Below) = 115 m.p.h. I his rider amends the warranty described above (for convenience, referred to below as the "Warranty"). If you believe you are experiencing a leak caused by a single wind event with a speed not exceeding the design wind speed (referred to as a "Covered Wind Event"), then you should follow the Warranty Claim Procedure set forth in the Warranty (see Form 900). For purposes of this rider "design wind speed" means the allowable stress design (asd) wind speed as allowed by ASCE 7 to determine the roof design pressures, and in accordance with Table 1609.3.1 of the 2021 International Building Code, reproduced below (all Section and Figure references are to the IBC): IBC Table 1609.3.1 Wind Speed Conversions e.b,c V 100 110 1 120 1 130 1140 150 160 1 170 180 1 190 1 200 Vase 78 85 93 1 101 1 108 1 116 124 132 139 147 155 Vasd = V For SI: 1 m.p.h. = 0.44 m/s. a. Linear interpolation is permitted. b. Vesd = allowable stress design wind speed applicable to methods specified in Exceptions 1 through 5 of Section 1609.1.1. c. V = basic design wind speeds determined from Figures 1609.3(1) through 1609.3(12). If SOPREMA® determines that your SOPREMA roofing or waterproofing materials are leaking from damage caused by a Covered Wind Event, then SOPREMA will provide you with the remedy set forth in the Warranty, using methods and materials it deems appropriate to the situation. The decisions of SOPREMA with respect to the cause(s) of damage and scope of repairs are final and binding. This wind speed warranty is made subject to the following conditions: 1. The roofing or waterproofing membranes and all associated components are installed by an authorized contractor on a properly designed and constructed building in strict accordance with applicable codes and approvals. 2. Each time the building is exposed to a severe wind event, Owner must examine the roofing or waterproofing and photo document conditions before cleanup or repair efforts begin. If any damage is discovered, Owner should hire a roofing or waterproofing professional to evaluate conditions, and document the extent of the damages, if any. 3. Owner must take reasonable actions to mitigate further damage. 4. Owner must make a wind -related claim within 14 days following the date of the Covered Wind Event, not counting any days when Owner is unable to access the Building due to publically imposed or naturally occurring travel restrictions. The issuance of this rider does not imply that SOPREMA made a determination as to whether the materials were installed in compliance with SOPREMA's details and General Requirements, Owner's specifications, or any applicable laws, codes, regulations, or approvals, or that the Building or the roofing or waterproofing assembly is properly designed and constructed. In the event of a conflict between the provisions of the Warranty and the provisions of this rider, the provisions of this rider shall control. Except as modified by this rider (and any other riders that are issued contemporaneously herewith), the terms of the Warranty remain in full force and effect. Among other things, this rider does not extend the term of the Warranty, even if this rider is dated after the date of the Warranty. (11/2022) March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 20 of 44 Page 19 of 36 r SOPREMAS System Rider Rider No.: 101-000000-ET-1 Warranty No.: 101-000000-ET Warranty Start Date: 00 00 2023 Building Name. Central Contra Costa Sanitary District (CCCD)-Pump & Blower Bldg. This rider amends the warranty described above (for convenience, referred to below as the "Warranty") All of the materials covered by the Warranty are listed below, when sold by SOPREMA: • Membrane ply(s) • Flashing ply(s) • Liquid -applied membrane and flashing products • Primers • Adhesives • Coverboard • Insulation • Vapor retarder • Air barrier Section 1 of the Terms, Conditions and Limitations is amended accordingly Warranty claims must be submitted within two business days after a leak or other related issue is discovered. Time is of the essence. The Warranty Claim Procedure (Form 900) is modified accordingly. In the event of a conflict between the provisions of the Warranty and the provisions of this rider, the provisions of this rider shall control. Except as modified by this rider (and any other riders that are issued contemporaneously herewith), the terms of the Warranty remain in full force and effect. Dated: 00.00.2023 (09/201 s) March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 21 of 44 Page 20 of 36 SOWREMA System Rider Rider No.: 101-000000-ET-1 Warranty No.: 101-000000-ET I Warranty Start Date: 00 00 2023 Building Name. Central Contra Costa Sanitary District (CCCD)-Pump & Blower Bldg. This rider amends the warranty described above (for convenience, referred to below as the "Warranty"). All of the materials covered by the Warranty are listed below, when sold by SOPREMA: • Membrane ply(s) • Flashing ply(s) • Liquid -applied membrane and flashing products • Primers • Adhesives • Coverboard • Insulation • Vapor retarder • Air barrier Section 1 of the Terms, Conditions and Limitations is amended accordingly. Warranty claims must be submitted within two business days after a leak or other related issue is discovered. Time is of the essence. The Warranty Claim Procedure (Form 900) is modified accordingly. In the event of a conflict between the provisions of the Warranty and the provisions of this rider, the provisions of this rider shall control. Except as modified by this rider (and any other riders that are issued contemporaneously herewith), the terms of the Warranty remain in full force and effect. I Dated: 00.00.2023 (09/2016) March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 22 of 44 Page 21 of 36 Central Contra Costa Sanitary District — Roofing Comparison sheet Base ply Sopralene Stick SA Base IV Thickness - 106 mils 110 mils Tensile strength - 11OMD /85XMD 75MD/50XMD Tear Strength - 125MD / 85XMD 105MD/ 10OXMD Elongation - 60MD / 65XMD 5MD / 5XMD Low temp. flexibility - -15 degrees 0 degrees Cap Ply Sopralene Flam 180 FR GR Stressply IV Plus Thickness - 160mils 180mils Tensile strength - 115MD / 90XMD 31OMD / 31OXMD Tear strength - 125MD / 85XMD 51OMD / 510XMD Elongation - 65MD / 80XMD 81VID / 9XMD Low temp. flexibility - -15 degrees -40 degrees Surfacing - Granulated None Other Comparisons — Warranty — Equal. The SOPREMA assembly qualifies for a 30yr NDL warranty as outlined in the Notice of intent to warranty (NOITW) assembly letter originally drafted previous to bid date (3/6/23). Wind Speed — Equal. A 115mph Wind speed rider shall be issued with the final warranty upon successful completion of the project. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 23 of 44 Page 1 of 2 Page 22 of 36 Alliance Contracting Services Inc. Proposal/ Contract 2/27/2023 TO: Rafael Lapizco COMPANY: PAC SHIELD ROOF SERVICES ADDRESS: 5151 Pentecost Or Ste A-1 Modesto, CA 95356 Pump and Blower Building Roof Replacement -- CCCSD ]OBSITE: 5019 Imhoff Place, ADDRESS: Martinez, CA FROM: Ernesto Figueroa COMPANY: Alliance Contracting Services, Inc. SBE State Certified Description of proposed work to be performed — Roof Removal, Asbestos and Lead abatement. • Roof Removal, handling & proper disposal of approximately 183 Roofing Squares of Gravel over BUR System, 1.5" wood fiber mopped on Concrete Deck at building Rl & R2. • Roof Removal, handling & proper disposal of approximately 90 Roofing Squares of Gravel over BUR System, 1" wood & I" Poly ISO on Metal Deck at building R4 & R5. • Removal of Coping Caps, surface mounted Metal, Expansion joints and roof related materials. • Removal of Asbestos and lead Abatement on table 1 per survey dated on 2/14/2023 in ADD 1. • Removal to be done in 10 shifts within 8-hour shifts. • Dumpsters to be staged adjacent to building for the duration of the demolition. • Galbestos panels are not included on this proposal or any work on exterior walls. Base Bid Proposal Costs = ADD 1 Roof Removal Building R3......................................................................_ ADD 2 Roof Removal Building R6...................................................................... _ Includes — Acknowledgement of Addendum 1 Excludes- Safe off, storage, salvage, or reinstallation of salvaged items, Electrical Lock Out/Tag Out, MEP disconnects and caps or weekend work. Weekend and over time work not included. Mechanical Removal not included. Removal includes proper handling, removal and disposal of roofing surfaces listed above to extent required includes methodology and containment per Cal -OSHA and EPA standards for Lead, Asbestos, and non -Asbestos Containing Materials — with the exceptionslexchtsions noted above Submitted/Signature: Accepted BylSignature: Company: Ornar GorridolAIlia ace Contracting Services Name/Company: TERMS Progress payment due upon completion �%nh no Pay menu over 15 days And %%ill be paid in full no later than 30 days after completion of �Nork - Proposal valid up to 45 days of date provided San Leandro Brea Sacramento 1777 Neptune Road, San Leandro CA 94577-- 615 Berry Street, Unit G, Brea CA 92821------ 1201 El Camino Avenue, Sacramento CA 95815 AGC 19 , NAT a2e001 Wes' CALIFORNIA CSLB # 948348 ASB, B- C39, C-22, DOSH #1000 CA State Certified SBE#1759217- DIR 91000002516 — DUNS #03-345-7814 Office (510) 667-9923 Fax (510) 667-9937 Cell (510) 719-9033 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 24 of 44 Page 2 of 2 Page 23 of 36 Alliance Contracting Services Inc. Proposal/ Contract TERMS AND CONDITIONS 1) The owner of building is responsible for providing asbestos and or hazardous materials report to Alliance Contracting Services. 2) Alliance Contracting Services is responsible for verification of report. If an incomplete report is provided, Alliance Contracting Services will complete report, at cost to Owner, upon authorization of Owner, to complete report. 3) Alliance Contracting Services is not responsible for water intrusion caused by weather or acts unrelated to Alliance Contracting Services work and are only to work by authorization of general contractor. 4) Alliance Contracting Services is not responsible for interior protection or liability air monitoring, unless so noted on proposal sheet. 5) Alliance Contracting Services will notify general contractor of any extra charges within 48 hours, the exact cost within 72 hours. 6) Alliance Contracting Services must be notified in writing, within 24 hours, of prime contractors (company whom Alliance Contracting Services has a contract with knowledge, of any defect in Alliance Contracting Services workmanship that would be subject to back charge or subject to these conditions. 7) Alliance Contracting Services will be given 48 hours to correct problem(s). If problem(s) will take longer than 48 hours to correct, Alliance Contracting Services and general contractor will agree in writing to a schedule to correct the problem(s). 8) Conditions 46 & #7 must be met in order for any back charges to Alliance Contracting Services to be valid. All work shall be performed in accordance with OSHA, EPA and the State of California Regulations. Any controversy or claim exceeding $5,000.00 arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration rules, and judgments on the award rendered by the Arbitrators(s) may be entered in any court having jurisdiction thereof If any party refuses or neglects to appear at or participate in such arbitration proceedings, the arbitrators are empowered to decide the controversy in accordance with whatever evidence is presented by the party who participates The arbitrators are authorized to award any party or parties such sums as they consider proper for the time, expense, and trouble of arbitration, including arbitrator fees and attorney fees. If either parry becomes involved in litigation arising out of this contract or the performance of it, the court may award reasonable costs and expenses, including attorney's fees, to the prevailing party Contractor$ are required by law to be licensed and regulated by the Contractor's State License Board. Any questions concerning a contractor may be referred to the Registrar, Contractor's State License Board, P O Box 26000, Sacramento, and CA 95826 San Leandro Brea Sacramento 1777 Neptune Road, San Leandro CA 94577--- 615 Berry Street, Unit G, Brea CA 92821------ 1201 El Camino Avenue, Sacramento CA 95815 - F AGC ,° NAra2eoo, CALIFORNIA CSLB # 948348 ASB, B- C39, C-22, DOSH #1000 CA State Certified SBE#1759217- DIR #1000002516 — DUNS #03-345-7814 Office (510) 667-9923 Fax (510) 667-9937 Cell (510) 719-9033 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 25 of 44 Page 24 of 36 ____A ROOFING&SOLAR CONSTRUCT/ON INC License # 1018877 / DIR #1000043217 630 Hunter Lane, Santa Rosa, CA 95404 Certified Woman -Owned Business SENT VIA EMAIL March 8, 2023 CONTRA COSTA SANITARY DISTRICT 5019 Imhoff Place Martinez, CA 94553 Attn: Mark Wenslawski Attachment 5 RE: BID PROTEST — PUMP AND BLOWER BUILDING ROOF REPI PROJECT — RESPONSE TO PAC SHIELD'S MARCH 6, 2023 REPLY Dear Mr. Wenslawski: Thank you for providing a copy of PAC Shield's response to RSC's bid protest. As the District is aware, on March 3, 2023, RSC submitted a protest of the above -captioned I bid and the March 6, 2023 response from Mr. Lapizco on behalf of PAC Shield Roof Services (" I offer this letter to draw attention to the blatant violation of the California Subcontractor l Laws committed by PAC and admitted by Mr. Lapizco's March 6, 2023 correspondence, confirms the Contra Costa Sanitary District ("District") should treat PAC's bid as non-respon, Specifically, Public Contract Code §4104 expressly provides: "... any person making a bid or offer to perform the work, shall, in his or her bid or offer, set )ject kc, "(a) (1) The name and the location of the place of business of each subcontractor who will perform work or labor or render service to the prime contractor ... in an amount in excess of one-half of 1 percent of the prime contractor's total bid..." As you know, PAC's bid was submitted in the amount of $973,006, making the threshold for listing subcontractors for any subcontract equal to or exceeding $4,865.03. Mr. Lapizco's letter freely admits PAC listed Alliance Contracting Services, Inc. ("Alliance") only for "Roof Demolition" and not specifically for "asbestos removal and lead abatement." Listing Alliance for demolition is demonstrably different from listing Alliance for asbestos removal and lead abatement, which requires specially certified workers, and highly regulated handling and disposal of asbestos/lead-containing materials. One need only look at Alliance's subcontracting bid attached to Mr. Lapizco's letter where Alliance indicates they submitted separate pricing for roof demolition than for "asbestos and lead abatement." Irrespective of whether Alliance can perform the asbestos abatement, the fact remains PAC listed them for roof demolition only and did not list a subcontractor for the asbestos removal and lead abatement. This is not a waivable error. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 26 of 44 CCSD Bid Protest March 8, 2023 Page 2 Page 25 of 36 By contrast, RSC's bid listed a subcontractor specifically for asbestos removal - PAC has no such listed subcontractor, and the work to remove the asbestos and lead removal are amounts greater than the subcontractor listing threshold of $4,865.03. PAC also admits it does not have a C-22 license required to self -perform that work. And if the District takes PAC at their word that Alliance will perform the C-22 work, then PAC admits it failed to list Alliance as a subcontractor performing asbestos removal, which is an admission that PAC's bid violates the California Subcontractor Listing Law and must be declared non -responsive. Under California law, a bid is non -responsive as a matter of law when either of the following is present: The irregularity in a bid gives that bidder an unfair advantage over other bids or if it gives that bidder a last look at the other bids after the bid closing date in deciding whether to honor the bid; or 2. Waiving the irregularity would constitute favoritism to the non -responsive bidder. See, Valley Crest Landscape, Inc. v. City Council, (1996) 41 Cal.App.4th 1432; MCM Constr. v. City & County of San Francisco, (1998) 66 Cal.App.4th 359; Ghilotti Constr. Co. v. City of Richmond, (1996) 45 Ca1.App.4th 897; Monterey Mechanical Co. v. Sacramento Reg'1 County Sanitation Dist., (1996) 44 Cal.AppAth 1391. As the court explained in Valley Crest Landscape, Inc., "listing the subcontractor percentages is a material element of the bid" which cannot be waived by the owner. And in that case, the court found the agency's award of the contract to the low bidder to be illegal where the agency allowed the low bidder, "to correct the mistake in stating the [subcontractor] percentages," as allowing that action gave the low bidder an unfair advantage not allowed of the other bidders. Subsequently in DeSilva Gates Construction, LP v. Department of Transportation, (2015) 242 Cal.AppAth 1409, the court specifically held, "As part of a responsive bid, bidders on public construction contracts must list subcontractors who will provide work above a certain threshold amount ... deceptive [bids are ones which] indicated [a] ... shift of work from a subcontractor to [a different contractor]." Thus, under both Valley Crest Landscape, Inc. and under DeSilva Gates Construction, LP, PAC's bid is deceptive, non -responsive, and a violation of §4104 Listing Laws. This is not a waivable bid irregularity. If the District awards the contract to PAC, the District is ignoring the controlling case law and is encouraging contractors to intentionally not list a subcontractor and then shop the scope of work between a subcontractor and its own pricing (or even another subcontractor) after the work begins. Additionally, PAC contends the Soprema roofing system they plan to use meets or exceeds the technical requirements of the project plans and specifications. RSC highly disputes this claim. Please see attached product comparisons between Soprema and the approved specified products. Soprema's products are clearly sub -par and do not meet the specification requirements. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 27 of 44 CCSD Bid Protest March 8, 2023 Page 3 Page 26 of 36 Specifically, the Soprema warranties consist of a third -party rider. Per Specification Section 1.12 states, "Warranty shall be solely provided by the roof system manufacturer and must cover the calculated wind speed of 115mph. No 3rd party warranties, or insurance riders will be acceptable." In short, PAC's proposed Soprema roofing system does not meet the minimum requirements of the roofing specifications. And more problematic, the warranties they intend to provide are through a third -party rider, in direct contradiction to the warranty specifications. Lastly, the project requires the payment of prevailing wages. In its response, PAC did not dispute they are delinquent in paying its workers fringe benefits, which include health/welfare, pension, vacation, and apprenticeship training fees. Fringe benefits make up approx. 30% of the prevailing wage rate for most classifications. And per the DIR regulations, contractors working on state public works projects, which this project is, are required to enter/upload certified payroll records each month per project, certifying under penalty of perjury they have paid the amounts listed on the CPR's, which includes the payment of fringe benefits. By failing to pay fringe benefits on a timely basis, PAC would be in violation of the prevailing wage and labor code requirements and call into question its financial stability and establish PAC as a non -responsible bidder. We would invite the District to contact the Bay Area Roofers Health and Welfare Trust Funds based in San Jose. In conclusion, PAC has created an unfair bidding advantage using a sub -par roofing system that does not meet the specification requirements. And did not specifically list a subcontractor for the asbestos and lead abatement, as required by law. Based upon the above information, PAC's bid is overtly non -responsive, PAC admits as much in writing, and PAC's bid should be disqualified. RSC is willing, able, and prepared to complete the work included in the Contract as the lowest responsive, responsible bidder. Respectfully, iolar Cotruction, Inc. 1 ison, COO Product Comparison Cc: Steven Copeland, Esq. March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 28 of 44 Page 27 of 36 Central Contra Costa Sanitary District PBB & POB Comparison Sheet SECTION 07 55 50 MODIFIED BITUMINOUS MEMBRANE ROOFING "2.03 MODIFIED BITUMEN MEMBRANE PREFORMANCE REQUIREMENTS A. Tensile Strength, ASTM D 5147 2 in/min. @ 73.4 ± 3.6 OF MD 3101bf/in XD 200 lbf/in B. Tear Strength, ASTM D 5147 2 in/min. @ 73.4 ± 3.6 OF MD 510 lbf XD 3001bf C. Elongation at Maximum Tensile, ASTM D 5147 2 in/min. @ 73.4 ± 3.6 OF MD 9.0% XD 8.0 % D. Low Temperature Flexibility, ASTM D 5147, Passes -40 degreesF" Proposed material from Soprema (Sopralene Flam 180 FR GR) do not meet the Modified Bitumen Membrane Performance Requirements called out in spec section 2.03. Sopralene Flam 180 FR GR A. Tensile Strength - 115MD / 90XD B. Tear Strength - 125MD / 85XD C. Elongation at Maximum Tensile - 65MD / 80XD D. Low Temperature Flexibility - -15 degree F March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 29 of 44 Page 28 of 36 DO W N E Y B R A N D Matthew J. Weber mweber@downeybrand.com Downey Brand 3425 Brookside Road, Suite A 209.472.3922 Direct Stockton, CA 95219 209.472.3923 Fax 209.473.6450 Main downeybrand.com March 9, 2023 Mark Wenslawski CONTRA COSTA SANITARY DISTRICT 5019 Imhoff Place Martinez, CA 94553 Re: Pump and Blower Building Roof Replacement Project Dear Mr. Wenslawski: My office represents PAC Shield Roof Services. This letter is in response to Roofing & Solar Construction, Inc.'s ("RSC") second attempt to assert a baseless protest against PAC Shield. As outlined below and in PAC Shield's March 6, 2023, correspondence, RSC's attempts to have the District pay them more to perform this project are completely baseless. PAC Shield is the lowest, responsive, responsible bidder and, as such, the District shall award the Project to PAC Shield. RSC's March 8, 2023, letter alleges that PAC Shield violated the Subcontractor Listing Law, because it listed Alliance Contracting Services, Inc. ("Alliance") for roof demolition, and did not separately call out asbestos removal and lead abatement. RSC is wrong. The bid documents do not have a separate scope of work for removal of asbestos. The asbestos, if any, is located in the roofing materials. The SCA Environmental Report, which was part of the bid documents, lists the potential asbestos as being contained in the roofing related materials that are being removed from the building. PAC Shield retained Alliance to perform the demolition of the roofing, and as part of that demolition to address any asbestos. As outlined in PAC Shield's previous letter, Alliance is more than qualified to do this work. Contrary to RSC's claims, Public Contract Code section 4104, subdivision (b), only requires PAC Shield set forth the portion of the work to be done by its subcontractor. PAC Shield did that by listing Alliance as performing roof demolition. It need not list every task included in the roof demolition, just like PAC Shield was not required to call out that roof demolition includes removal of coping caps, or metal expansion joints. Nothing in the listing law required PAC Shield to separately list that removing the roof also included dealing with the asbestos in the roofing materials. Try as it might, RSC cannot create a violation of the Subcontractor Listing Law, because PAC Shield properly listed Alliance as a subcontractor. RSC's argument about Soprema not being a proper roofing material is just as frivolous as its listing law argument. RSC again fails to respond to the fact that Soprema was a listed supplier in the bid specs. Again, Section 07 55 50, Subsection 1.01 (A) (2), provides that Soprema is an acceptable manufacturer. Moreover, the District further affirmed this in its response to bidders Iasi97ovl March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 30 of 44 Page 29 of 36 Mark Wenslawski CONTRA COSTA SANITARY DISTRICT March 9, 2023 Page 2 questions on February 15, 2023, where the District stated that bidders could use one of the 4 listed manufacturers in Section 1.01 (A). Given that PAC Shield is utilizing an approved manufacturer, its bid cannot be rejected. Furthermore, as outlined in the bid specifications, as well as Public Contract Code section 3400, PAC Shield is entitled to propose an "or equal" product. Thus, even if Soprema was not an approved manufacturer —which it is —PAC Shield could still propose its use on this Project. There is absolutely no basis to reject PAC Shield's bid for proposing to use the manufacturer listed in the specifications. RSC's last argument again tries to challenge PAC Shield on responsibility, not responsiveness. Such a challenge is not only baseless, but is not a valid challenge to PAC Shield's proper bid. As the District can confirm PAC Shield is a properly approved public works contract and has listed its DIR Registration Number, which is the only requirement in the Bid Documents, nothing in the Bid Documents asks for information regarding status of union payments. Moreover, as outlined in PAC Shield's previous response, should the District attempt to reject PAC Shield's bid based on alleged delayed union dues, that would be a responsibility determination requiring providing PAC Shield a full hearing. Again, there is no basis to reject PAC Shield's bid based on another bidder's unsubstantiated claims that union dues were not timely paid. Finally, RSC's bid protest must be rejected, as RSC did not comply with the protest requirements. Per Section 20 of the Invitation for Bids, any protest must comply fully with the protest procedures. One of the mandatory procedures is that at the time of submitting the protest, the protesting bidder, "must concurrently transmit a copy of the initial protest to the Bidder deemed the lowest Bidder." To date, RSC has not shared its protest with PAC Shield. Thus, it has not complied with the mandatory protest procedures and its protest must be rejected on that ground. It is clear that PAC Shield is the lowest, responsive, responsible bidder. RSC's attempts to challenge PAC Shield's bid are not well founded in the law or the facts and must be rejected. PAC Shield as the lowest, responsive, responsible bidder looks forward to working with the District to complete this Project. Very truly yours, DOWNEY BRAND LLP Matthew J. Weber MJW:bs 18�1970,1 DOWNEYBRAND March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 31 of 44 rage ou or olo COPELAND LAW PIRA, APC Northern California Office: Southern California Office. 19201 Sonoma Hwy., Suite 106 C L F 528 Palisades Dr., Suite 540 Sonoma, California 95476 Los Angeles, California 90272 424/234-9701 email: sbc@copelandlawpc.com Via U.S. Mail and Email March 10, 2023 Edgar Lopez Mark Wenslawski Contra Costa Sanitary District 5019 Imhoff Pl. Martinez, CA 94553 elovezta,centralsan.orc, mwenslawsking,centralsan.org Re: Pump and Blower Building Roof Replacement Dear Messrs. Lopez and Wenslawski: This office generally represents Roofing & Solar Construction, Inc. ("RSC"), the second low bidder for the above contract. I am following -up on RSC's March 3, 2023 protest of the award of this contract to PAC Shield Roof Services ("PAC"), Mr. Lipiazco/PAC's March 6, 2023 letter of opposition, RSC's March 8, 2023 reply as well as to the letter issued from Mr. Weber, PAC's attorney, on March 9, 2023. I offer this letter to draw attention to the blatant violations of the California Subcontractor Listing Laws and the failure to submit a bid to supply roofing materials in strict compliance with the bid specifications. The Contra Costa Sanitary District ("District") has no choice but, and in fact has a legal duty, to declare PAC's bid non -responsive. RSC'S PROTEST WAS TIMELY AND SENT TO PAC I want to first address Mr. Weber's contention that RSC's bid protest was untimely and not sent to PAC. That allegation is a fabrication. RSC submitted its protest on March 3, 2023 — within (5) business days of the bid opening — which met the requirement of the District's bid documents. That letter disclosed Mr. Lapizco of PAC as being carbon copied, and Mr. Lapizco acknowledged RSC's protest in his email and letter dated March 6, 2023. The parties have been arguing back and forth relative to RSC's March 3, 2023 protest since then, but that protest was timely lodged, sent to the required parties, and must be accepted as such. By your most recent email (March 9, Page I I March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 32 of 44 Page 31 of 36 2023), it appears the District is taking its obligations to investigate and act on RSC's bid protest seriously, so I am sure that process will continue. PAC'S BID MUST BE DEEMED NON -RESPONSIVE FOR ITS FAILURE TO LIST ANY SUBCONTRACTOR PERFORMING ASBESTOS/LEAD REMOVAL With regard to PAC's violation of the subcontractor listing laws, this is an open and shut case requiring the District to declare PAC's bid nonresponsive. Specifically, PAC's bid indisputably does not list any subcontractor to perform the "asbestos abatement" nor the "lead removal" required by the bid. This much is confirmed in the March 6, 2023 response from Mr. Lapizco on behalf of PAC Shield Roof Services ("PAC"). PAC wants the district to ignore the obvious and instead go along with PAC's story that its listed roofing demolition subcontractor is also its hazardous materials subcontractor despite not listing any such subcontractor. As you have already been informed, Public Contract Code §4104 expressly requires each trade of work subcontracted by PAC to have been listed in detail in its bid. But the mandatory bid language inserted by the District goes even further: "... Bidder shall submit the name ... of each subcontractor who will perform work ... in an amount in excess of one-half of one percent of the total bid ... The prime contractor shall indicate the portion that will be done by each such subcontractor for each such portion as is defined by the subcontractor in its bid Failure to list subcontractors in Part II, Bid Forms, Section 4, Bidder's Statement of Subcontractors, is an express statement by the Bidder that it will perform that portion of the work with its own forces." [District Notice to Bidders, Section 9] This language established it was mandatory for PAC to list subcontractors for any subcontract equal to or exceeding $4,865.03, and Mr. Lapizco's letter admits PAC listed Alliance Contracting Services, Inc. ("Alliance") only for "Roof Demolition" and not for "asbestos removal and lead abatement." But Alliance submitted a bid which included three separate scopes of work it would perform with its own forces (and not contract to a second -tier subcontractor) — roof demolition, asbestos and lead abatement per ADD 1 and other work per ADD 2. PAC's bid only listed Alliance for the first portion of their subcontract bid — roof demolition — and not for the other two scopes. And while PAC's attorney submitted a letter on March 9, 2023 claiming PAC didn't have to list Alliance for asbestos/lead removal because, "the bid documents do not have a separate scope of work for removal of asbestos," the bid documents he references and the controlling law do not support PAC's argument — which is why PAC's attorney has no reference to the bid document, caselaw nor statutes in his letter. Here, per the mandatory language from the bid documents, PAC was required to list Alliance, "for each such portion as is defined" in Alliance's bid. There were three portions of that bid, and PAC only listed the base bid work, not the ADD 1 asbestos work. By the terms of the bid documents, that meant PAC's failure to list an asbestos subcontractor was, "an express statement ... that it [PAC] will perform that portion of the work with its own forces." Except PAC has no C-22 license, and its bid is thus non -responsive since the asbestos work is more than .5% of PAC's bid and there is no required listed subcontractor. Page 12 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 33 of 44 Page 32 of 36 PAC listing Alliance for demolition is different than listing Alliance for asbestos removal and lead abatement. One need only look at Alliance's subcontracting bid attached to Mr. Lapizco's letter where Alliance indicates they submitted separate pricing for roof demolition than for "asbestos and lead abatement." In fact, the Alliance subcontracting bid states a base bid proposal cost including only roof demolition, and then states, "Removal of Asbestos and lead Abatement on table 1 per survey dated on 2/14/2023 is ADD 1" before listing that separate work on a line item than its pricing for roof demolition, "ADD 1 Roof Removal Building R3." And PAC simply listed Alliance for the roof demolition scope and did not list a subcontractor for ADD 1 nor for the included asbestos removal and lead abatement. This is an express violation of mandatory bid language and cannot be waived by the District. Looking at the language in Addendum No. 1, the District discloses a February 14, 2023, SCA Environmental, Inc. Summary Report stating there is either asbestos abatement or lead removal in areas besides the roof, including the in the caulking, mastic, parapets and handrail — all areas beyond the roof which need to be demolished. While it is true there is not a separate line item in the bid for "asbestos removal and lead abatement," that work is clearly called for in Addendum No. 1, and only a C-22 licensed contractor can perform such work — PAC is not so licensed. Because removal of these hazardous substances clearly costs more than the listing threshold, PAC and all other unlicensed bidders were required to submit a subcontractor list identifying a subcontractor who would be both C-22 licensed and listed with a scope of work as, "asbestos removal and lead abatement." In fact, every other bidder did so or was so licensed themselves. Clearly, the cost to remove asbestos and lead is greater than the subcontractor listing threshold of $4,865.03 in PAC's bid. PAC also admits it does not have a C-22 license required to self -perform that work. And if the District takes PAC at their work that Alliance will perform the C-22 work, then PAC's admits it failed to list Alliance as a subcontractor performing asbestos removal, which is an admission that PAC's bid violates the California Subcontractor Listing Law and must be declared non -responsive. Under California law, a bid is non -responsive as a matter of law when either of the following is present: 1. The irregularity in a bid gives that bidder an unfair advantage over other bids or if it gives that bidder a last look at the other bids after the bid closing date in deciding whether to honor the bid; or 2. Waiving the irregularity would constitute favoritism to the non -responsive bidder. See, Valley Crest Landscape, Inc. v. City Council, (1996) 41 Ca1.App.4th 1432; MCM Constr. v. City & County of San Francisco, (1998) 66 Cal.App.41h 359; Ghilotti Constr. Co. v. City of Richmond, (1996) 45 Cal.App.41h 897; Monterey Mechanical Co. v. Sacramento Reg'1 County Sanitation Dist., (1996) 44 Ca1.App.4th 1391, Moreover, California courts have consistently thrown -out contracts issued by agencies to bidders who have failed to list both the amount or the proper scope of a subcontractor, since both are violations of the listing laws. As the court explained in Valley Crest Landscape, Inc., Page13 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 34 of 44 rage 5.5 or ,in "listing the subcontractor percentages is a material element of the bid" which cannot be waived by the owner. And in the that case, the court found the agency's award of the contract to the low bidder to be illegal where the agency allowed the low bidder, "to correct the mistake in stating the [subcontractor] percentages," as allowing that action gave the low bidder an unfair advantage not allowed of the other bidders. Again, in DeSilva Gates Construction, LP v. Department of Transportation, (2015) 242 Cal.AppAth 1409, the court specifically held, "As part of a responsive bid, bidders on public construction contracts must list subcontractors who will provide work above a certain threshold amount ... deceptive [bids are ones which] indicated [a] ... shift of work from a subcontractor to [a different contractor or a second - tier contractorl." Thus, under both Valley Crest Landscape, Inc. and under DeSilva Gates Construction, LP, PAC's failure to list an asbestos/lead removal subcontractor and now claim it didn't need to is deceptive, non -responsive, and a violation of §4104 Listing Laws. This is not a waivable bid irregularity. If the District awards the contract to PAC, the District is ignoring controlling caselaw and is encouraging contractors to intentionally not list a subcontractor and then shop the scope of work between a subcontractor and its own pricing (or even another subcontractor) after the work begins. A court will be called upon to throw out such an illegal award. PAC'S BID IS NON -RESPONSIVE AS THE SOPREMA MATERIALS DO NOT STRICTLY COMPLY WITH THE BID SPECIFICATIONS This issue with PAC's bid which should be even more concerning to the District as PAC has not submitted a responsive bid due to PAC's failure to provide the materials required by the contract. While PAC's proposed materials are to be supplied by an approved manufacturer, the materials submitted in PAC's bid are not responsive to the specifications and thus PAC's bid must also be declared as non -responsive. The District's specifications provide the following MANDATORY language relative to what bidders are required to provide: "Warranty shall be solely provided by the roof system manufacturer and must cover the calculated wind speed of 115mph. No 31 party warranties or insurance riders will be acceptable." With that language, the District informed bidders any approved roofing manufacturer must provide its 30-year warranty without insurance riders in order for the bid to be responsive. By specifically instructing bidders that a warranty with a rider is not allowed, the District affirmatively informed all bidders with sufficient information to understand how the lowest bid would be selected. Schram constr., Inc. v. Regents of Univ. of Cal., (2010) 187 Cal.AppAth 1040 — and by doing so and in order to be responsive, a bid needed to strictly comply with this mandatory language — mandatory language cannot be waived for any bidder without giving that bidder an unfair advantage over all other compliant bidders. These mandatory specifications informed all bidders the District would only accept materials from a manufacturer who includes the required coverage in its standard warranty without any riders attached. In this regard, it is critical the District understands it intentionally placed a limitation in the specifications to limit a bidder's choice of manufacturer not just to one which met the technical Page14 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 35 of 44 rage 54 or olo requirements, but to one which also met the warranty requirements. Soprema's warranty does not meet the District's mandatory specification as Soprema's provides insurance riders, including the following three riders: 1. One "Design Wind Speed Rider" which "amends the warranty;" and 2. Two separate "System Rider(s)" which amend "the warranty." Since the Specification issued for bidding forbid the use of materials whose manufacturer only warrants through insurance riders, any variance thereof by a bidder makes its bid absolutely non- responsive as that bidder has not submitted a bid to supply with the project specifications — in other words PAC submitted a bid to do something none of the other bidders did since it was forbidden by the specifications. Here, there is no dispute PAC submitted a bid using Soprema materials, and Soprema's warranty as a matter of both fact and law does not meet the un-waivable and mandatory requirements of the District's bid documents quoted at the top of this page. And while that alone is a clear requirement for the District to declare PAC's bid non -responsive, the use of Soprema's non -compliant products also cave PAC a competitive advantage over other bidders in violation of the law, also reauirim the District to throw out PAC's bid. As stated in the caselaw cited in subpoint "2" on page " Y' of this letter, the District is not allowed to waive an irregularity that gave a bidder an unfair advantage over other bidders. RSC (and every other bidder) submitted its bid using Garland materials as among other things, Garland's warranty contains all the required language meeting the requirements of the specifications without the use of a rider. And allowing PAC to obtain an award of the contract based on a bid using the Soprema materials which do not meet the project's mandatory warranty specification gives an unfair advantage to PAC over every other bidder as every other bidder had to account for the greater cost of Garland's compliant warrant as well as the cost to ship Garland products, a cost not incurred by PAC which allowed it to lower its bid price. Unlike Soprema's materials, Garland's materials come from the East Coast, which require the contractor to ship them to the Project site, a cost in excess of $25,000. Since Soprema's materials do not have the same shipping distance, a lower or non-existent shipping fee allowed PAC to undercut all other bids by using non -compliant materials. Moreover, it should be clear Soprema's materials are cheaper than a compliant manufacturer in part because of Soprema's inferior and non -compliant warranty. These cost savings are thus unfairly enjoyed by only one bidder — PAC — and the District cannot waive the irregularity of allowing PAC submitting a bid with this unfair advantage due to using a non -responsive material supplier. That should be as clear as day to the District. PAC IS DELINQUENT IN PAYING BAY AREA ROODERS TRUST FUND CONTRIBUTIONS FOR ITS WORKERS PAC seems to agree this is the case but claims its failure to contribute such funds cannot be a reason for the District to declare PAC's bid non -responsive. PAC is mistaken. Its delinquency implies PAC reduced its anticipated costs in this bid by not accounting for payments it would Page 15 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 36 of 44 Page 35 of 36 otherwise have to make into the trust fund, which is a way PAC can try to secure work over second - lowest bidders who have to account for such mandatory payments. And this is why the law authorizes second -lowest bidders like RSC to file an action against both PAC and the District if this contract were awarded to PAC — in fact, the law also authorizes the court to award RSC its costs and reasonable attorney's fees as well. See, Labor Code § 1750; Pub. Contr. Code § § 19102, 20104.70. Based upon the above information, PAC's bid is overtly non -responsive, PAC admits as much in writing, and PAC's bid should be disqualified for any of the three stated violations. RSC is willing, able, and prepared to complete the work included in the Contract as the lowest responsive bidder. Best regards, COPELAND LAW FIRM APC By: Steven B. Copeland, Esq. cc: Matthew J. Weber, Esq. mweberk,,downabrand. com Page j6 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 37 of 44 Page 36 of 36 ATTACHMENT 6 PUMP AND BLOWER BUILDING ROOF REPLACEMENT DISTRICT PROJECT 7370 POST-BID/PRECONSTRUCTION ESTIMATE No. Item Description Amounts % Of Construction Cost 1 CONSTRUCTION a. Construction Contract $973,006 b. Alternate Bid Items $307,121 c. Contingency at 10% $99,873 d. Hazardous Material Services $30,000 SUBTOTAL - CONSTRUCTION $1,410,000 100% 2 CONSTRUCTION MANAGEMENT a. District Forces - Construction Management $150,000 - Operations Support $10,000 b. Consultants - Inspection Services $35,000 - Calpo Hom & Dong Architect Support Services $20,000 SUBTOTAL - CONSTRUCTION MANAGEMENT $215,000 15% 3 PREBID EXPENDITURES a. Staff and Consultant Costs $75,000 SUBTOTAL - PREBID EXPENDITURES $75,000 5% 4 TOTAL ESTIMATED PROJECT COST $1,700,000 March 23, 2023 Special EOPS Committee Meeting Agenda Packet - Page 38 of 44