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HomeMy WebLinkAboutResolution 2022-161 N.C.S. 10/03/2022 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Resolution No. 2022-161 N.C.S. of the City of Petaluma, California RESOLUTION AUTHORIZING THE AWARD OF CONTRACT FOR THE NORTH MCDOWELL BOULEVARD COMPLETE STREETS PROJECT C16102147 TO TEAM GHILOTTI,INC., REJECTING GHILOTTI CONSTRUCTION COMPANY, INC'S BID PROTEST,AND TO COMMENCE DISCUSSION WITH PROPERTY OWNERS TO ACQUIRE EASEMENTS WHEREAS,City staff has prepared construction bid documents and advertised for construction for the North McDowell Boulevard Complete Streets Project("Project"); and WHEREAS, in accordance with the City of Petaluma Charter and Municipal Code, California Public Contract Code Section 20162, and other applicable law, City staff solicited bids for the project; and WHEREAS,the project was bid on July 14, 2022, and five (5)bids were received and opened on August 11, 2022, in accordance with applicable law; and WHEREAS, the lowest responsible base bid plus Additive Alternative 1 for the project was submitted by Team Ghilotti, Inc. from Petaluma, CA for a base bid plus Additive Alternative 1 of$6,490,141; and WHEREAS, the lowest responsible base bid plus Additive Alternatives 1 through 3 for the project was submitted by Team Ghilotti, Inc. (TGI) from Petaluma, CA for $10,329,465; and WHEREAS, the bid submitted by Team Ghilotti, Inc. was found by staff to be fair and reasonable; and satisfies the bidding requirements for the project; and WHEREAS, staff has verified that TGI possesses a valid California Contractor's License, Class A (General Engineering Contractor), number 895384 that qualifies the Contractor to perform the project; and WHEREAS, on August 16, 2022, the City received a bid protest by Ghilotti Construction Company (GCC), the second lowest bidder challenging TGI's bid as unresponsive; and WHEREAS, GCC alleges in their August 16, 2022, bid protest letter that"TGI failed to comply with Subcontractor Listing Requirements as stated in the contract specifications"because they listed two subcontractors to perform the Cold Central Plant Recycling (CCPR) items of work which is a violation of Public Contract Code Section 4106, and because TGI listed two subcontractors to perform the CCPR items of work,pursuant to Public Contacting Code Section 4106 they are stating that they are fully qualified and are required to self-perform that portion of work; and WHEREAS, additionally, GCC alleges in their protest letter that since TGI was required to self-perform the CCPR work under Public Contacting Code Section 4106 because they listed two subcontractors under the CCPR items of work, "TGI failed to submit the required documentation regarding the CCPR scope of work per Section 31 L", and Section 311B of the City's bid package requires contractors to submit proof that they are qualified to perform the CCPR's item of work; and Resolution No. 2022-161 N.C.S. Page 1 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 WHEREAS, the responses and correspondence from GCC and TGI are attached to the concurrent staff report as Exhibits and are incorporated into this resolution; and WHEREAS, in Section 18 of the Notice Inviting Bids document: the City expressly reserves its rights to evaluate bid compliance and to waive minor bidding errors: "The City reserves the right to reject any or all bids, to waive any minor irregularity in a bid, and to make awards to the lowest responsive, responsible bidder as it may best serve the interest of the City"; and WHEREAS, a public entity's discretion to waive inconsequential informalities or Irregularities, is well- established under California law: "[I]t is further well-established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential." (Bay Cities Paving& Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1188 ("Bay Cities"); and WHEREAS, in general,issues of responsiveness are determined by looking exclusively at the face of the bid, (Great West Contractors, Inc. v. Irvine Unif. Sch. Dist. (2010) 187 Cal.App.4th 1425, 1453) and therefore, allegations that go beyond the face of the bid are generally not relevant for determining responsiveness; and WHEREAS, allegations of non-responsiveness must be evaluated from a practical,rather than speculative or hyper-technical perspective, and based on the public interest: "They must also be viewed in light of the public interest,rather than the private interest of a disappointed bidder. It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal...of the low bidder after the fact, [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy." (Bay Cities, at 1189; internal quotation marks omitted); and WHEREAS, TGI did not list two contractors to perform"the same portion of work" as TGI's bid states that the subcontractor Pacific Northwest Oil (PNO)will perform the "Tack Oil"portion of the work and the subcontractor Pavement Recycling System (PRS) would be performing the CCPR, which is evidenced by the fact that in TGI's bid they included the qualifications for PRS to perform the CCPR which was required under section 311B of the City's Notice Inviting Bids; and WHEREAS, while Public Contract Code Section 4106 requires a prime contractor who lists "more than one subcontractor for the same portion of work to be performed"to agree that the prime contractor is fully qualified to perform the portion of work that they listed two subcontractors because TGI's bid stated that PNO will perform the tack oil and PRS would perform the CCPR there is no violation of Public Contract Code Section 4106, and because TGI's bid did not list two contractors to perform the "same portion of work", TGI is not required under Section 311B of our notice inviting bids to provide qualifications that TGI can perform the CCPR work; and WHEREAS, the City's Notice Inviting Bid and Public Contract Code Section 4106 does not require a contractor to place the percentage of work to be performed by subcontractors; and WHEREAS, for these aforementioned reasons, TGI's bid is responsive and GCC's bid protest is without merit; and, WHEREAS,the project is categorically exempt pursuant to California Environmental Quality Act("CEQA") and Title 14, the California Code of Regulations ("CEQA Guidelines"), Section 15301, because the project Resolution No. 2022-161 N.C.S. Page 2 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 consists of repair and maintenance of an existing public street involving negligible or no expansion of existing or former use,including street,frontage,and related improvements will repair and maintain existing pedestrian travel ways and related facilities without changing the use of those facilities; accordingly, there is negligible or no expansion of use beyond what currently exists and there no cumulative impacts, unusual circumstances, or other factors that would make the exemption inapplicable pursuant to CEQA Guidelines section 15300.2; and WHEREAS,the FY 22/23 CIP budget will incorporate sufficient funding and appropriations to complete the project as bid. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby: 1. Declares that the above recitals are to be true and correct and are incorporated into this resolution as findings of the City Council. 2. Finds that the project is categorically exempt pursuant to California Environmental Quality Act("CEQA") and Title 14,the California Code of Regulations("CEQA Guidelines"),Section 15301,because the project consists of repair and maintenance of an existing public street involving negligible or no expansion of existing or former use, including street, frontage, and related improvements will repair and maintain existing pedestrian travel ways and related facilities without changing the use of those facilities; accordingly, there is negligible or no expansion of use beyond what currently exists and there no cumulative impacts, unusual circumstances, or other factors that would make the exemption inapplicable pursuant to CEQA Guidelines section 15300.2. 3. Finds that GCC's bid protest lacks merit and rejects GCC's bid protest because: a. TGI did not list two contractors to perform"the same portion of work" as TGI's bid states that the subcontractor Pacific Northwest Oil (PNO)will perform the "Tack Oil"portion of the work and the subcontractor Pavement Recycling System(PRS)would be performing the CCPR. This is evidenced by the fact that in TGI's bid they included the qualifications for PRS to perform the CCPR which was required under section 311B of the City's Notice Inviting Bids. While Public Contract Code Section 4106 requires a prime contractor who lists "more than one subcontractor for the same portion of work to be performed"to agree that the prime contractor is fully qualified to perform the portion of work that they listed two subcontractors because TGI's bid stated that PNO will perform the tack oil and PRS would perform the CCPR there is no violation of Public Contract Code Section 4106. b. And because TGI's bid did not list two contractors to perform the "same portion of work", TGI is not required under Section 311B of our notice inviting bids to provide qualifications that TGI can perform the CCPR work. c. Additionally, the City's Notice Inviting Bids and Public Contract Code Section 4106 does not require a contractor to place the percentage of work to be performed by subcontractors. Accordingly, there was no defect in TGI's bid and TGI's bid was responsive. 4. Finds that the City's Traffic Engineer has reviewed and approved the design plans and believes the design plan is reasonable because the design meets the California Manual on Uniform Traffic Control Devices and the California Streets and Highways Code. 5. Approves the project construction budget of$10,329,465 for the North McDowell Boulevard Complete Streets Project Base Bid and Additive Alternatives 1 —3. 6. Approves a revised project budget of$11,700,000 to include Additive Alternative 4 once easements are received. 7. In accordance with the City of Petaluma Charter and Municipal Code, California Public Contract Code Section 20162,and other applicable law,waives any and all non-conformance in the bid of Team Ghilotti, Inc.for the North McDowell Boulevard Complete Streets Project,Project No.C 14501607 finds that Team Ghilotti, Inc., is the lowest responsible bidder with a base bid plus bid alternative 1 of$6,490,141. 8. Awards the contract for the North McDowell Boulevard Complete Streets Project,Project No. C 16102147 to Team Ghilotti,Inc., in the amount of$10,329,465,the amount of the lowest responsive bid for the Base Resolution No. 2022-161 N.C.S. Page 3 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-lEE5OA86C571 Bid plus Additive Alternatives 1 - 3, conditioned on Team Ghilotti, Inc.'s timely execution of the project contract and submitting all required documents, including but not limited to, executed bonds, certificates of insurance, and endorsements, in accordance with the project bid documents. 9. Authorizes and directs the City Manager to execute the project contract on behalf of the City of Petaluma upon timely submission by Team Ghilotti, Inc., of the signed project contract and all other required documents, including but not limited to, executed bonds, certificates of insurance, and endorsements, in accordance with the project bid documents. 10. Authorizes and directs the City Manager to commence discussions with the property owners to acquire easements to facilitate awarding project alternative work. 11. Approves a construction contract contingency of$400,000. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to Council of the City of Petaluma at a Regular meeting on the 3rd day of October DocuSigned fgPn: 2022,by the following vote: l �Q, 5EF8`5AE9�f?WfDorney AYES: Mayor Barrett,Vice Mayor Pocekay,Fischer,Healy,King,McDonnell l ley E1T[ NOES: None ABSENT: None ABSTAIN: None DocuSigned by: DocuSigned by:,,�,�ll ATTEST: I-LmSA. bat'1'Ll l City Clerk Mayor Resolution No. 2022-161 N.C.S. Page 4 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 EXHIBIT A aractiman CHI LOTT I Since=11103N7914 _ D E R --- August 16, 2022 City of Petaluma Department of Public Works Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 Re: North McDowell Boulevard Complete Streets Project(C16102147) - Bid Protest Dear Mr. Eichstaedt, This letter serves as Ghilotti Construction Company, Inc.'s formal protest of the bid submitted by Team Ghilotti, Inc. (TGI) for the North McDowell Blvd. Complete Streets project referenced above. At the time of bid, Ghilotti Construction Company, Inc. (Ghilotti) was the apparent 2nd low bidder. After review of the bid documents submitted by TGI, we hereby protest the bid submitted by TGI based on the following: TGI failed to comply with the Subcontractor Listing Requirements as stated in the Contract Specifications. The`List of Subcontractors' (pg. 4.15 of the Specifications) and Public Contracting Code 4106 state: • "If a prime contractor fails to specify a subcontractor or if a prime contractor specifies more than one subcontractor for the same portion of work to be performed under the contract in excess of one-half of 9 percent of the prime contractor's total bid, the prime contractor agrees that he or she is fuUy qualified to perform that portion himself or herself, and that the prime contractor shall perform that portion himself or herself." TGI listed two subcontractors to perform the CCPR items of work: • Item#20-Base and 16-Alt 3— Pacific Northwest Oil • Item#20-Base and 16-Alt 3— Pavement Recycling Systems By listing two subcontractors for the same items of work, TGI agrees they are fully qualified, and are required to self-perform that portion of work (PCC 4106). TGI failed to submit the required documentation regarding the CCPR scope of work per Section 311. Specification Section 311 B requires bidding contractors to submit qualifying information at the time of bid. At the time of the bid, TGI submitted qualifications for Pavement Recycling Systems to perform the CCPR items of work. As shown above (PCC 4106), TGI is required to self-perform this scope of work and failed to submit the required documentation showing TGI is qualified to self-perform. — Engineering Contractor — 246 GHILOTTI AVENUE•SANTA ROSA, CA 95407•707-585-1221 •FAX:707-585-0129 www.ghilotti.com STATE CONTRACTORS LICENSE#644515 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Additionally, Section 311 B, Item#3 (Page 226 of 536 of the City of Petaluma Specifications) states: 'The Contractor(or Subcontractor)shall have completed a minimum of five (5) CCPR asphalt projects in the last three(3)years. Submit project name, agency/owner, project engineer, and construction dates.' TGI does not possess the experience as stated in Item#3 of Section 311 B, having failed to provide documentation at the time of the bid showing the completion of five (5)CCPR asphalt projects in the last three (3) years. Based on TGI's failure to comply with the requirements cited above, Ghilotti Construction Company, Inc. protests an award of this contract to Team Ghilotti, Inc. 0k you for considering s m er, l aiterli� omes Smith Vice President of Estimating Attachments DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 c� ) 'd O ko N w� �4) u) C1mO, N Q N Na M w L M 0O N MLn M N O4 jD CD OC3 �vOi O Q z N M GOO u�� O c O O rU O 0 u O V C H O MA Q s 1, x7 4 a y lJQ �M O 3 ;.. 9 p U O 0 Q, +� rA Q CJ LM O 4-0 Off.' OD 'O Ri OffC+ `�' i-� '� �O Vj c j u y U U id 0 1-1 Q H ^ Cw _ mi N -W + cu GUJ O O ~ *k O w.i m ~ a Fa O U .r U v N m M O O V O 6. LML A RQ O d Go rm m v LO _Q � y •Q.cr.., � GO � � � O . try O ' V L N Ln N ION( c. p . 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L9 c rn 0 o 41 .— 0 'O Ln •' O U O.,y U �O 'O O O O 0 5 H 4. a� w24. 0 0 uu o oEn z do O z Ow O V 2 .0 z o 0 o CD � a� .� ,n LLJ � WD � � O c 4+ a DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Bid Addendum #1 North McDowell Boulevard Complete Streets Project :D City Project No. C16102147 ADDITIVE ALTERNATIVE 3 IMPROVEMENTS BETWEEN SMART TRACKS AND SUNRISE Item Description Estimated Unit Unit Total No. Quantity Price Price 1 MOBILIZATION/DEMOBILIZATION 1 LS 133,400.00 133,400.00 2 TRAFFIC CONTROL 1 LS 75,000.00 75,000.00 STORM WATER MANAGEMENT AND EROSION 12,000.00 12,000.00 3 CONTROL 1 LS 4 FENCE REMOVAL 15 LF 135.00 2,025.00 5 TREE REMOVAL 17 EA 1,000.00 17,000.00 6 MINOR CONCRETE-VERTICAL CURB 100 LF 50.00 5,000.00 7 MINOR CONCRETE-CURB AND GUTTER 1310 LF 98.00 128,380.00 8 MINOR CONCRETE-SIDEWALK 4520 SF 29.00 131,080.00 9 MINOR CONCRETE-8"MEDIAN CURB 730 LF 64.00 46,720.00 10 MINOR CONCRETE-VALLEY GUTTER 70 SF 80.00 5,600.00 11 VEHICULAR CONCRETE 4285 SF 51.00 218,535.00 12 TRUNCATED DOME PANELS 3'XS') 12 EA 482.00 5,784.00 13 12"AC FULL DEPTH CONFORM 720 TON 273.00 196,560,00 14 END OF PAVEMENT REHABILITATION CONFORM 965 SY 16.00 15,440.00 15 5"COLD PLANING/GRINDING 12820 SY 8.50 108,970 00 16 CCPR AC OVERLAY 2520 TON 199.00 501,480.00 17 GLASGRID 12820 SY 7.00 89,740.00 18 AC OVERLAY 1080 TON 167.00 180,360.00 19 5"GRIND RIGOUT 1930 TON 207.00 399,510.00 20 RELOCATE SIGN_ _ 8 EA 250.00 2,000.00 21 PAVEMENT MARKINGS 3460 SF 5.25 18,165.00 22 FIRE HYDRANT RETROREFLECTIVE MARKER 15 EA 12.00 180.00 23 BIKE LANE STRIPING, GREEN 3360 SF 9.00 30,240.00 24 DETAIL 9 4560 LF 0.85 3,876.00 25 DETAIL 21 1220 LF 2.75 3,355.00 26 DETAIL 32 680 LF 5.50 3,740.00 27 _ DETAIL 38 500 LF 2.25 1,125.00 28 DETAIL 39 7060 LF 1.65 11,649.00 29 DETAIL 39A 1190 LF 1.65 1,963.50 30 OBJECT MARKER 'TYPE K-1) 4 EA 75.00 300.00 31 ADJUST EXISTING UTILITY BOX TO GRADE 6 EA 1,400.00 8,400.00 32 ADJUST EXISTING VALVE COVER TO GRADE 39 EA 1,300.00 50,700.00 33 ADJUST EXISTING MANHOLE TO GRADE 18 EA 12,114.OD 38,052.00 ADJUST OR REPLACE EXISTING MONUMENT COVER 1,200.00 3,600.00 34 TO GRADE 3 EA ADJUST EXISTING UTILITY TO GRADE-COORDINATE 35 W/UTIL OWNER 1 EA 3,400.00 3,400.00 36 RELOCATE LIGHT POLE 2 EA 6,000.00 12,000.00 37 RELOCATE FIRE HYDRANT 1 EA 7,000.00 7,000.00 39 INSTALL CATCH BASIN 7 EA 10,000.00 70,000.00 40 CONVERT CATCH BASIN TO SDMH _ 5 EA 11,240.00 56,200.00 41 LANDSCAPE FABRIC AND MULCH 425 SY 45.00 19,125.00 Total Alt 3 S 2,617,654.50 Bid Page 3 of 5 Bid Schedule DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Bid Addendum #1 North McDowell Boulevard Complete Streets Project City Project No. C 16102147 BID SCHEDULE BASE BID ROAD WORK.CURB RAMPS AND LIMITED GAP CLOSURE BETWEEN OLD REDWOOD AND SMART TRACKS Item Estimated Unit Total No. Description Quantity Unit Price Price 1 MOBILIZATION/DEMOBILIZATION 1 LS 474,013.00 474,013.00 2 TRAFFIC CONTROL 1 LS 183,000.00 183,000.00 STORM WATER MANAGEMENT AND EROSION 21,000.00 21,000.00 3 ICONTROL 1 LS 4 TREE REMOVAL 5 EA 11,392.00 6,960.00 5 LANDSCAPE WALL REMOVAL 10 LF 192.00 920.00 6 MINOR CONCRETE-VERTICAL CURB 745 LF 43.00 32,035.00 7 MINOR CONCRETE-CURB AND GUTTER 1376 LF 74.00 101,750.00 8 MINOR CONCRETE-SIDEWALK 13465 SF 21.50 289,497.50 MINOR CONCRETE-REINFORCED CONCRETE 40.00 75,200.00 9 SIDEWALK 1880 SF 1 10 MINOR CONCRETE-8"MEDIAN CURB 210 LF 55.00 11,550.00 11 MINOR CONCRETE-RETAINING WALL 370 LF 189.00 69,930.00 12 MINOR CONCRETE-VALLEY GUTTER 1085 SF 48.00 52,080 00 13 SIDEWALK CONFORM GRINDING 500 SF 8.00 4,000.00 14 VEHICULAR CONCRETE 3885 SF 138.00 147,630.00 15 TRUNCATED DOME PANELS 3'X5' 66 EA 482.00 31,812.00 16 TRUNCATED DOME PANEL INSTALL 2 EA 970.00 1,940.00 17 12"AC FULL DEPTH CONFORM 165 TON 278.00 45,870.00 18 END OF PAVEMENT REHABILITATION CONFORM 2450 SY 9.80 24,010.00 19 6"COLD PLANING/GRINDING 43940 SY 7.00 307,580.00 20 CCPR AC OVERLAY 11120 TON 197.00 1,078,640.00 21 GLASGRID 43940 SY 17.00 307,580,00 22 AC OVERLAY 3710 TON 150.00 556,500.00 23 6"GRIND DIGOUT 6460 TON 170.00 1,098,200.00 24 PEDESTRIAN BARRICADE 40 LF 150.00 6,000.00 25 RELOCATE MONUMENT SIGN 1 EA 5,700.00 5,70D.00 26 RELOCATE SIGN 2 EA 250.00 500.00 27 FLASHING BEACON SYSTEM RRFB 1 LS 1134,150.00 134,150.00 28 PAVEMENT MARKINGS 7260 SF 15.25 38,115.00 29 FIRE HYDRANT RETROREFLECTIVE MARKER 30 EA 12.00 360.00 30 BIKE LANE STRIPING,GREEN 12180 SF 9.00 109,620.00 31 J DETAIL 9 11250 I LF 0.85 9,562.50 32 DETAIL 21 1680 LF 2.75 4,620„00 33 DETAIL 32 5160 LF 5.50 28,380,00 34 DETAIL 38 2400 LF 12.25 5,400.00 35 DETAIL 39 12220 LF 11.65 20,163.00 36 DETAIL 39A 3240 LF 1.00 3,240.00 37 OBJECT MARKER TYPE K-1 9 EA 75.00 675.00 38 ADJUST EXISTING UTILITY BOX TO GRADE 42 EA 1,260.00 52,920.00 39 ADJUST EXISTING VALVE COVER TO GRADE 93 EA 1,110.00 103,230.00 40 ADJUST EXISTING MANHOLE TO GRADE 29 EA 1,880.00 54,520.00 ADJUST OR REPLACE EXISTING MONUMENT COVER 1,106.00 8,848.00 41 TO GRADE 8 EA Page 1 of 5 Bid Schedule DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 SECTION 311 COLD CENTRAL PLANT RECYCLING 311A. GENERAL This work shall consist of Cold Central Plant Recycling(CCPR)of Reclaimed Asphalt Pavement(RAP)milled from roadways within the project limits and stockpiled at the Petaluma Airport and as shown on the plans.RAP cannot be taken off-site to any other production facility or alternate plant location. All RAP milled from project locations must be used for recycled CCPR paving operations and must be utilized in mix design.Excess RAP that is not used on the project is the property of the Contractor. The RAP shall be clean, free of contamination of dirt,base,concrete or other deleterious materials. The stockpiled RAP shall be crushed and screened to 100%of the crushed RAP passing a I-inch sieve. The properly sized RAP to be recycled shall then be blended with an emulsified asphalt recycling agent and cement additive, as required by the CCPR Contractor's Mix Design,to produce a recycled asphalt concrete. This material shall then be placed and compacted in accordance with the Plans and specifications,and as directed by the Engineer. 311B. SUBMITTALS At the time of bid, the Contractor shall furnish the fallowing information regarding the Cold Central. Plant Recycling (CCPR) to the Engineer. Approval of the Contractor or Subcontractor performing the CCPR is at the discretion of the Engineer. 1. Emulsion and emulsion supplier. Identification that the proposed recycling emulsion has been successfully used on at least five(5)other CCPR asphalt projects in California over the past three(3)years, including project name, agency/owner,project engineer, and construction dates. 2. Description and specification of the proposed CCPR recycling unit and support equipment,construction methods. 3. The Contractor(or Subcontractor) shall have completed a minimum of five(5) CCPR asphalt projects in the last three(3)years. Submit project name, agency/owner,project engineer, and construction dates. 4. The CCPR recycling unit shall demonstrate the ability to crush and screen the RAP used in the CCPR process and remove pavement reinforcing fabric during the recycling process. 5. Verification the CCPR recycling unit meets the proportioning requirements and the applicable Air Quality Control district permits. 6. Quality Control Plan. 311C. JUST IN TIME TRAINING DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 >r:XHIBIT B August 171h, 2022 • CONT dl City of Petaluma Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 RE: North McDowell Boulevard Complete Streets Project(C16102147)—Bid Protest Response Dear Mr. Eichstaedt, This serves as Team Ghilotti, Inc.'s (TGI) response to the formal bid protest submitted by Ghilotti Construction Company (GCC) with regards to the North McDowell Blvd Complete Streets project. In their protest, GCC attempts to make the argument that TGI listed two subcontractors to perform the "same portion of work." This is clearly not the case. TGI very clearly listed Pacific Northwest Oil's (PNO) work as "Tack Oil" and Pavement Recycling Systems, Ines (PRS) work as "CCPR" on the list of Subcontractors page 4.15 of the Specifications. Furthermore, TGI submitted qualifications for PRS to perform the CCRP portion of work. This specific listing and submittal can only be interpreted as TGI's intent to have PRS perform the CCRS portion of items #20 Base and 16-A1t3. There is no other way to interpret this. Items #20-Base and #16-ALT3 titled CCPR AC Overlay include several portions of work. The creation of the Cold Plant Recycling(CCPR) of Reclaimed Asphalt Pavement(RAP), the placing of the material and the tack coat. GCC's protest confuses creating the material (CCPR) with the tack coat by stating TGI listed two subcontractors to perform the CCPR items of work. Public contracting code states a contractor cannot specify more than one subcontractor for the same portion of work. TGI did not specify more than one subcontractor for the same portion of work. TGI specified PRS to create the CCPR and PNO to perform the tack coat portion of the work. TGI is the lowest responsive and responsible bidder for the above-mentioned project and therefor the City must award this Contract to the TGI. Thank you for considering our response to GCC's protest. Please let me know, should you require further information. Sincerel 7% GI Joe Moreira General Manager Team Ghilotti, Inc. • 2531 Petaluma Blvd. South • Petaluma, CA 94952 Phone(707) 763-8700 Fax (707) 763-8711 CSLB#895384,A& Haz DIR# 1000002085 www.teamghilotti.com DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 EXHIBIT C I I GH I LOTT I Since 1111411,171111ff1914 'o�� August 17, 2022 City of Petaluma Department of Public Works Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 Re: North McDowell Boulevard Complete Streets Project(C16102147) -Bid Protest—Follow Up Letter Dear Mr. Eichstaedt, Contrary to the arguments that it made in its August 17,2022, letter,TGI did not designate different portions of bid item numbers 20 Base Bid or 16 Alt 3 between two subcontractors. TGI listed Pavement Recycling Systems, Inc. and Pacific Northwest Oil for the entirety of the work associated with both bid items, without any exclusions or exceptions. Had TGI intended to designate two different subcontractors for portions of each bid item, it was required to designate the percentage of work that each subcontractor would perform. TGI understood this when they designated bid item #1 and bid item #2 as 'par' indicating 'partial' for PRS, Mountain F. Enterprises, Mike Brown Electric and BKF Engineers on its Listing of Subcontractors (See highlighted section attached). The City of Petaluma's Contract Documents incorporate the Standard Specifications (Current Caltrans Standard Specifications)within Special Provisions 3-2(5). Caltrans Standard Specification 2-1.10: 4. Portion of work it will perform. Show the portion of the work by: • 4.1. Bid item numbers for the subcontracted work • 4.2. Percentage of the subcontracted work for each bid item listed • 4.3. Description of the subcontracted work if the percentage of the bid item listed is less than 100 • percent Section 4106 of the Public Contract Code requires TGI to self-perform bid item 20 Base Bid and 16 Alt 3 however TGI failed to submit documentation pursuant to Section 311 B (Submittal of Qualifications) that would allow it to self-perform this work. TGI's bid is therefore incomplete and nonresponsive. TGI employs sleight of hand in its letter when it states 'TGI specified PRS to create the CCPR'. TGI did not use the term 'create' on its List of Subcontractors. It simply stated 'CCPR'. Section 311 (CCPR) includes a comprehensive list of the tasks associated with this work as described specifically in 311A—General and 311 G—Measurement and Payment. Accordingly, Pavement Recycling Systems, Inc. is required to perform all of the work in this section, not solely the creation of the CCPR. Additionally, TGI's bid on its face is different from what it intended, since TGI apparently wanted multiple subcontractors to perform bid items 20 Base Bid and 16 Alt 3, which means that TGI has grounds to withdraw its bid citing a mistake. TGI's errors in completing its bid documents therefore have provided it with a competitive advantage over other bidders because no other contractors who submitted bids are able to withdraw their bids after the bids are opened. — Engineering Contractor — 246 GHILOTTI AVENUE•SANTA ROSA, CA 95407•707-585-1221 •FAX:707-585-0129 www.ghilofti.com STATE CONTRACTORS LICENSE#644515 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Ghilotti Construction Company, Inc. protests an award of this contract to Team Ghilotti, Inc. aqk you for consider' 's ma r, k'I Thomas Smitth� Vice President of Estimating Attachments DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 cd c' ~t"i --� O w ��', p L � 3 cy� O y �+ v q� t0 Ln O Ln N M � LmnN iL! 0 y O L�, 30.. N tMD M M M " O ' Q n O p 0%CD p O 0 0 i W�+ O O Z ^ O � O VIO � O • �+ O E! 4 U i� U O U G O � O O y O N +• .— O0 ,0 4-4 .vY�, O N an .� yU .a Dl O Q O OC QQ C' to � 3 h O O + OO+ � C> y., ate." U •O >~" H � U o o w oen 0 o a� a+ en M 5U� N U Q y i O Ln 4-4 O N ' Q MUl O .O N 0 S." v .Z{ CO _� O U 5 0 U r4•I Q rti N Q 0 O v N C .� - y _ ' O .-i N w m v Q1 rA O 0 O rp N � V^ N v �t]' O Cd in U O O U � •� •�'' •bo w � � m N ��� i N Q°}J*k vi O V OA C+ U Q `Q � 0 00 �I ,.Q H � �+ C7 � O "Cyy3 U ,..� O O_ Qj •Or 4ti CC N O 'Rt 4-4 +""i 4� 4..i i Ln N �9 LLO N cm } ¢ C In Ln ON c cz '° 'o 'm V O �" U ^" FA > U 0 0 O � O y, C. O O V U t0 Lp 2 E � O U � � � M c(� VI A O ++ (� L L Q N N tp��f U- Li C/I ID. +.. O �i Z7 N U = p i 04.4 `� �+, 3 0 co o -6 0 Go' r0. A ,cam �a�i o c 3 _ 0) vi u +—. 4- 4r. b N 4. � �+ = to as Cd �- �j 0 .0 Z72 3 tiJ W -;;4 a) OOC c U Rj .O y tu ►� '-�' 0k] "Owi O O E' m N O m a D«q)nEnvelope g:OFF8384C-D73D-48EO-9AA9-lEE5OA86C571 / k 7 / / CrD4a co m o 0 0 \ \ � � k / � g / U 3 / / k Q � � � 7 / Ln CD/ R � k E A rn � f E � k 2 % 2 g E -4 q I � A m _ MU — ® V* � � / ai On / c kk 'd � � m 3� / S � � Q g CY) $ n k co w o ~ Go m C 9 k 2 % m ¥ C) o cq � � Q § � - kg L % £Q ©Ul G N \ � k k0% c I g � 6 L �R 9 § xa E egogo § Ln � c Ak a k 2 7 2 d En Y2 0 e w 2 � �kd $ / m U DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 SECTION 311 COLD CENTRAL PLANT RECYCLING 311A. GENERAL This work shall consist of Cold Central Plant Recycling(CCPR) of Reclaimed Asphalt Pavement(RAP)milled from roadways within the project limits and stockpiled at the Petaluma Airport and as shown on the plans.RAP cannot be taken off-site to any other production facility or alternate plant location. All RAP milled from_project locations must be used for recycled CCPR paving operations and must be utilized in mix design Excess RAP that is not used on the project is the property of the Contractor. The RAP shall be clean, free of contamination of dirt,base,concrete or other deleterious materials. The stockpiled RAP shall be crushed and screened to 100%of the crushed RAP passing a 1-inch sieve. The properly sized RAP to be recycled shall then be blended with an emulsified asphalt recycling agent and cement additive, as required by the CCPR Contractor's Mix Design,to produce a recycled asphalt concrete. This material shall then be placed and compacted in accordance with the Plans and specifications,and as directed by the Engineer. 311B. SUBMITTALS At the time of bid, the Contractor shall furnish the following information regarding the Cold Central Plant Recycling (CCPR) to the Engineer. Approval of the Contractor or Subcontractor performing the CCPR is at the discretion of the Engineer. 1. Emulsion and emulsion supplier. Identification that the proposed recycling emulsion has been successfully used on at least five (5) other CCPR asphalt projects in California over the past three (3)years, including project name, agency/owner,project engineer, and construction dates. 2. Description and specification of the proposed CCPR recycling unit and support equipment, construction methods. 3. The Contractor(or Subcontractor) shall have completed a minimum of five (5) CCPR asphalt projects in the last three (3)years. Submit project name, agency/owner,project engineer,and construction dates. 4. The CCPR recycling unit shall demonstrate the ability to crush and screen the RAP used in the CCPR process and remove pavement reinforcing fabric during the recycling process. 5. Verification the CCPR recycling unit meets the proportioning requirements and the applicable Air Quality Control district permits. 6. Quality Control Plan. 311 C. JUST IN TIME TRAINING DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 particles that may develop on the pavement surface shall be removed prior to the final surface course. No direct payment will be made and costs shall be included elsewhere for protection and maintenance of the recycled asphalt concrete pavement. Prior to any overlay with asphalt concrete, the recycled pavement should be carefully swept of all loose material to create a dry clean surface. A tack coat of SS-lh emulsion, emulsified recycling agent or equivalent (0.05 gallon per square yard minimum) shall be applied to all surface areas. 311F. SMOOTHNESS The finished surface and grade of the recycled material shall be checked regularly during placement using a level. The smoothness shall not vary more than 1/4 inch from a 10-foot straight edge placed on the surface. The Contractor shall correct humps or depressions exceeding this tolerance. High points may be trimmed if approved by the Engineer in the field. 311G. MEASUREMENT AND PAYMENT CCPAC Overlay shall be paid for at the contract price per ton (Ton) for the asphalt overlay placed which shall include full compensation for all labor, materials, tools, equipment, and incidentals; for doing all the work involved in cold central plant recycling, complete in-place; which includes asphalt milling, transport to recycling location, stockpiling, crushing, sizing, processing, blending, emulsified asphalt emulsion, cement, water, loading into trucks, transport to paving operating, paving CCPR, and compacting the recycled pavement mixture; for protection and maintenance of the recycled layer; for performing all QC testing including mix design; for fog sealing, sanding and sweeping; for obtaining measurements and recording results of all tests as shown on the plans and as directed by the Engineer. DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 EXHIBIT D � f ......... ... e CONTRACTOR W.;Mn« w August 18'', 2022 City of Petaluma Department of Public Works &Utilities Attn: Ken Eichstaedt,P.E., T.E. 202 N. McDowell Blvd. Petaluma, CA 94954 Re: Bid Protest regarding North McDowell Boulevard Complete Streets Project Bid Date: August 11 th, 2022 Dear Mr. Eichstaedt, Team Ghilotti, Inc. (TGI) is the lowest responsive and responsible bidder for the above- referenced project. Team Ghilotti respectfully disputes Ghilotti Construction Company's (GCC) attempts to disqualify a responsive bidder due to a minor and inconsequential bid irregularity. "A bid is responsive if it promises to do what the bidding instructions demand." (Taylor Bus Service, Inc. v. San Diego Bd. of Education(1987) 195 Cal.App.3d 1331, 1341.) In the bid proposal packet page 4.15, "List of Subcontractors" of the City of Petaluma it specifically asks bidders to provide the "Description of Work to be Performed(also show Bid Schedule Item Number)." In TGI's listing of subcontractors, we correctly listed Pacific Northwest Oil, the item number, and the description of their portion of the work as "tack oil." Similarly,we also listed Pavement Recycling Systems, Inc. (PRS)portion of the work as "CCPR". In our initial response to GCC's overreaching protest addressed to the City of Petaluma dated August 17"', 2022 we demonstrated that both subcontractors listed by TGI were done so in accordance with Public Contract Code,the bidder's list of subcontractors, and industry standards. TGI's bid fully complied with California Public Contract Code§4106, which requires bidders for public contracts to specify the subcontractor"in excess of one-half of 1 percent of the prime contractor's total bid": "4106. If a prime contractor fails to specify a subcontractor or if a prime contractor specifies more than one subcontractor for the same portion of work to be performed under the contract in excess of one-half of 1 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 percent of the prime contractor's total bid, the prime contractor agrees that he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shall perform that portion himself or herself." Responsiveness is determined by comparing the face of the bid to the bidding requirements, without outside investigation or information. (Valley Crest Landscape, Inc. v. City Council, supra, 41 Cal.AppAth at 1438; Taylor Bus Service, Inc. v. San Diego Bd. of Education, supra, 195 Cal.App.3d at 1342 ["the determination of nonresponsiveness will not depend on outside investigation or information"].) As per California Public Contract Code §4106 and the City of Petaluma's "List of Subcontractors" there is no legal requirement for a contractor to list a percentage of the bid item for the work to be performed. TGI complied with the Public Contract Code by delineating the portion of work to be performed by each of its subcontractors. GCC attempts to discredit TGI's bid as non-responsive on face value due to a minor and inconsequential irregularity in that TGI listed our other subcontractors' with"Par."to represent"partial" on other items of the bidder's list, and not under Pacific Northwest Oil and Pavement Recycling Systems, Inc. GCC misapplies the Order of Precedence of Contract Documents in its protest dated August 1711, 2022 to attempt to disqualify TGI as a responsive bidder by citing State of California—Department of Transportation (Caltrans) Standards. The City of Petaluma's "List of Subcontractors" is part of the Contractor's Bid and clearly does not state any such requirement to list percentages of items nor does California Public Contract Code § 4106. An order of precedence clause is a term which identifies the order in which the various contract documents are prioritized when resolving a conflict or ambiguity within said contract documents. In the City of Petaluma's Contract Documents there is no conflict or ambiguity that would require the usage of Caltrans Standards. Under the General Conditions page 4.15 paragraph 3.4 "Order of Precedence of Contract Documents"the instructions and requirements of bidder's is clear and presents no inconsistency. The City of Petaluma's "List of Subcontractors"prevails over the State of California—Department of Transportation Standards. GCC's frivolous attempt to deem TGI non-responsive for not listing percentages of items of work is a clear attempt to discredit a responsive bidder by ignoring which contract documents have rightful precedence. TGI did not gain any competitive advantage of saving time for it to submit its bid that other bidders did not, no favoritism by listing each portion of the work to be performed by each of its subcontractors, and no market-place advantage as we must use the subcontractors as listed for each portion of the work listed by each of TGI's subcontractors. "The purpose of requiring governmental entities to open the contracts process to public bidding is to eliminate favoritism, fraud and corruption; avoid misuse of public funds; and stimulate advantageous marketplace competition." (Konica Business Machines U.S.A. Inc. v. Regents of University of California (1988) 206 Cal.App.3d 449, 456; Cal. Public Contract Code, § 100.) "Bidders cannot be required to guess at the standards by which they will be measured." (Eel River Disposal&Res. Recovery, Inc. v. Humboldt(2013) 221 Cal.AppAth 209, 235.) DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 In the City of Petaluma's Notice Inviting Bids, paragraph 18, it is clear that the City has reserved it's right to waive any minor irregularities in a bid and to make awards to the lowest responsive and responsible bidder. TGI is confident that its bid is responsive and looks forward to working with the City of Petaluma upon award of the contract to Team Ghilotti, Inc. Sincerely 49 oe Moreira General Manager Team Ghilotti, Inc. • 2531 Petaluma Blvd. South • Petaluma, CA 94952 Phone (707) 763-8700 Fax (707) 763-8711 CSLB # 895384, A & Haz DIR # 1000002085 www.teamghilotti.com DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 >r:XHIBIT E i G H I L 0 T T I Since 1914 100 YEAR' August 19, 2022 City of Petaluma Department of Public Works Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 Re: North McDowell Boulevard Complete Streets Project(C16102147) - Bid Protest—Follow Up Letter#2 Dear Mr. Eichstaedt, Team Ghilotti, Inc. (TGI) listed two subcontractors for the same items of work without the 'partial' designation and therefore is subject to requirements of PCC 4106. As such, TGI is required to self-perform these items of work and does not possess the required experience as called out in Section 311 (CCPR). Accordingly, TGIs bid is non-responsive. TGI is correct that responsiveness is determined on the face of the bid. The reader only knows that TGI listed PRS for#1 —partial and#20 and#16 Alt 3 complete without the partial designation, while also listing PNWO for#20 and #16 Alt 3 complete. As such, the reader can only discern that Bid item#20 and#16 Alt 3 are being performed by both subcontractors complete since 'partial' was not applied to#20 and#16 Alt 3 as it was to#1. TGI acknowledges its error and characterizes it as a'minor and inconsequential irregularity' which is inaccurate because the requirements of PCC 4106 cannot be waived. Based on the above, Ghilotti Construction Company, Inc. protests an award of this contract to Team Ghilotti, Inc. Thank you for considering this ma Thomas Smith Vice President of Estimating — Engineering Contractor — 246 GHILOTTI AVENUE•SANTA ROSA, CA 95407-707-585-1221 -FAX:707-585-0129 www.ghilotti.com STATE CONTRACTORS LICENSE#644515 DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 EXHIBIT F LEONIDOU&ROSIN PROFESSIONAL CORPORATION ATTORNEYS AT LAW 777 CUESTA DRIVE (650)691-2888 SUITE 200 -------.---- MOUNTAIN VIEW,CA 94040 FACSIMILE(650)691-2889 August 24, 2022 City of Petaluma Department of Public Works Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 Re: North McDowell Boulevard Complete Streets Project(C16102147) - Bid Protest Dear Mr. Eichstaedt: This office represents Ghilotti Construction Company ("GCC"). Team Ghilotti, Inc.'s ("TGI") April 18, 2022 letter response to GCC's bid protest takes several inconsistent and contrary positions. In one portion of the letter TGI contends that its bid complies with the bidding requirements,whereas in another portion of the letter TGI agrees and acknowledges that there is an irregularity in TGI's bid for Items #20 and #16 Alt 3, but that the irregularity is minor. Both of TGI's claims are incorrect. TGI designated multiple subcontractors for bid items 20 and #16 Alt 3 and failed to properly delineate the portions of the bid items that each listed subcontractor was to perform. Caltrans Standard Specification 2-1.10 is clear that in the case where multiple subcontractors are listed to perform a portion of the work, the bidder must show the portion of the work performed by each subcontractor by providing a percentage of the subcontracted work for each bid item listed. TGI failed to include this required information in its bid, making the bid nonresponsive. TGI's argument that neither Public Contract Code section 4106 nor the bid form specifically require such information, thereby making Caltrans Standard Specification 2- 1.10 inapplicable is nonsensical. Caltrans Standard Specification 2-1.10 is inarguably incorporated into the Contract Documents. TGI's contention that there is no conflict or ambiguity in the contract documents is simply incorrect. The Bid Form does not specifically call out any requirement to list percentages when more than one subcontractor is listed for a portion of the work, whereas the Caltrans Standard Specifications, as incorporated into the Contract Documents, requires such a percentage allocation. Accordingly, there is clearly a conflict between different portions of the Contract Documents, thereby implicating the precedence clause of the Contract Documents. TGI's further claim that the bid forms take precedence is also again simply incorrect. In that regard,in the event of conflict or inconsistencies between parts of the Contract Documents, DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE50A86C571 Ken Eichstaedt City of Petaluma Department of Public Works August 24, 2022 Page 2 of 3 paragraph 3.4 of the General Conditions unequivocally states that the Caltrans Standard Specifications takes precedence over either the Instruction to Bidders or the Contractors Bid(Bid Form). (See Exhibit A.) Accordingly,TGI was required to include the percentage that each listed subcontractor was to perform of bid items#20 and#16 Alt 3. Having failed to properly include this information, TGI is required to self-perform these bid items pursuant to Section 4106 of the Public Contract Code. However, TGI failed to submit the requisite documentation at time of bid showing TGI's qualifications pursuant to Section 31113 that would allow it to self-perform this work. TGI's bid is therefore incomplete and nonresponsive. TGI's assertion that this irregularity in its bid is minor and inconsequential, which can be waived by the City, is also incorrect. A prime contractor, such as TGI, listing two subcontractors for the same item of work could invite them to bid against each other to get the work, and neither subcontractor could complain. This would frustrate the policy of the Subletting and Subcontracting Fair Practices, which is to prohibit bid shopping. Accordingly,because it listed multiple companies for the same portions of work(bid items 3 20 and # 16 Alt 3), TGI is barred from utilizing any of these subcontractors. Pub. Contract Code § 4106; R.J. Land& Associates Construction Co. v. Kiewit-Shea, 69 Cal. App. 4th 416, 428 (1999). Whether TGI actually has engaged in bid shopping or bid chiseling is irrelevant. So long as the possibility exists that TGI can or could have done so, TGI's bid is materially nonresponsive, and the irregularities in TGI's bid cannot be waived. Valley Crest Landscape, Inc. v. Davis, 41 Cal. App. 4th 1432, 1442 (1996). Furthermore, because TGI cannot utilize subcontractors that it intended to use, TGI has made an error that allows it to withdraw its bid for mistake. Pub. Contract Code § 5103; Valley Crest, 41 Cal. App. 4th at pp. 1439-1441 (discrepancy that allows bidder to assert grounds for withdrawal of bid confers a competitive advantage and therefore constitutes a non-waivable defect). Accordingly, TGI's violation of the Public Contract Code and the bid documents by listing multiple subcontractors for the same portion of work therefore constitutes a nonwaivable,material irregularity that renders TGI's bid nonresponsive. Id. Based upon the foregoing, GCC requests that the City grant GCC's bid protest, reject TGI's nonresponsive bid, and award the Project contract to GCC, the lowest responsive and responsible bidder on the Project. Please advise us of any meetings or hearings that may be held to discuss this protest or the award of the contract so we may attend and be given the opportunity to present evidence and argument as the law requires. City ofinglewood--LA County Civic Center v. Superior Court, 7 Cal. 3d 861, 867 (1972). 00263997.DOCX DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 Ken Eichstaedt City of Petaluma Department of Public Works August 24, 2022 Page 3 of 3 Thank you for your careful attention to this matter, and please feel free to contact me if you have any questions. � M Very truly you' , r cc: Joe Moreira, Team Ghilotti Inc. Thomas Smith, Ghilotti Construction Company 00263997.DOCX DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 >N:XHIBIT G 0F RagghiantilFreitaS LLP ATTORNEYS AT LAW 1101 FIFTH AVENUE,SUITE#100 SAN RAFAEL,CA 94901-3246 telephone 415.453.9433 Eric Sternberger facsimile 415.453.8269 eric@rflawllp.com www.rflawllp.com Client File No: 7650:1 August 26, 2022 City of Petaluma Department of Public Works &. Utilities Attn: Ken Eichstaedt 11 English Street Petaluma, CA 94952 RE: North McDowell Boulevard Complete Street Projects (C16102147) Response to Bid Protest Dear Mr. Eichstaedt: This office represents Team Ghilotti, Inc. ("TGI"). This letter responds to the many ill-fated attempts by Ghilotti Construction Company ("GCC") to intercede with TGI's lowest responsive and responsible bid for above the above referenced project. Counsel for GCC goes to great lengths, in his letter of August 24, 2022, to conflate multiple issues in this most recent attempt to wrest away TGI's winning bid. Objectively, it appears that GCC is the only party confused by TGI's bid, because in spite of four (4) letters protesting to TGI's bid, the City has never requested clarification or supplemental materials. TGI's Bid is Responsive, Clear and Not Ambiguous TGI asserts that its bid is responsive, clear, and not ambiguous, we reiterate for GCC's benefit that: a. There is zero overlap of services provided by any entity on TGI's List of Subcontractors. b. Pacific Northwest Oil ("PNO"): TGI made it very clear that PNO will be performing the "Tack Oil" portion of(#20-Base; and #16-Alt 3). PNO is the sole subcontractor relating to tack oil and will be performing 100%of the work identified in the List of Subcontractors.' In short, there is no risk of bid shopping.2 Because TGI's bid did not list multiple subcontractors to perform the "same portion of work" it is irrelevant whether or not TGI is qualified to perform that portion of work itself. (See, Public Contract Code, �4106.) 2 Because there is no overlap of services provided by PNO and PRS, bid shopping is a non-issue, as is GCC's reliance on R.J. Land gAssociates Construction Co. v. Kiewit-Shea (1999) 69 Cal.AppAth 416. Moreover, in R.J. Land,the bidder modified its prime bid in the final hour to reduce the total bid amount and include a new DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 RagghiantilFreitaS LLP page 2 of 4 c. Pavement Recycling Systems, Inc. ("PRS"): TGI made it very clear that PRS will be performing the CCPR potion of #20-Base and #16-Alt 3. PRS is the sole subcontractor relating to CCPR and will be performing 100% of the work identified in the List of Subcontractors. In short, there is no risk of bid shopping. The substantive portion of Section 2-1.10 of the Caltrans Standard Specifications states: 4. Portion of work it will perform. Show the portion of the work by: 4.1. Bid item numbers for the subcontracted work. 4.2. Percentage of the subcontracted work for each bid item listed. 4.3. Description of the subcontracted work if the percentage of the bid item listed is less than 100 percent. However, Section 4104(b) of the Public Contract Code, which also requires prime contractors to list the portions of work to be done by each subcontractor, does not require percentages. Indeed, Valley Crest Landscape, Inc. v. Davis (1996) 41 Cal.App.4th 1432, 1434, which was relied upon by GCC, noted that percentages were not required by Section 4104(b) of the Public Contracts Code. As a backstop to GCC's strained argument alleging bid shopping, GCC relies on Valley Crest Landscape at 41 Cal.App.4th 1432,forthe proposition that TGI's bid was nonresponsive. However, a careful reading of Valley Crest does not support GCC's allegation of non-responsiveness. For instance, while specification 2-1.10 is not directly being addressed by the Third District, it makes very clear that while Section 4104(b) of the Public Contract Code "requires bidders for public contracts to set forth the `portion' of the work to be done by subcontractors, that `portion' need not be stated as a percentage." Id. at 1434.3 Moreover, in Valley Crest, the bid specifications expressly required "the bidder [to] perform at least 50 percent of the work[.]" Id. at 1435. There, the winning prime low bidder (North Bay Construction, Inc.) indicated 83 percent of the work would be done by subcontractors. After Valley Crest objected, stating that the bid was nonresponsive, and the City of Davis notified the low bidder of the issue, North Bay stated that the percentages were not correct and submitted new percentages totaling 44.65 percent. The City of Davis then awarded the contract to North Bay over the objection of Valley Crest. Subsequently, Valley Crest appealed the denial of its petition for a writ of mandate to set aside the contract awarded to North Bay. Valley Crest contended that the "revisions to North Bay's bid violate the Subletting and Subcontracting Fair Practices Act." Id. at 1435. The Third District disagreed with Valley Crest concluding subcontractor while failing to cross out part of the work listed under a subcontractor that it intended to assign to the new subcontractor. Id. at 422.There is no such confusion here. 3 Public Contract Code, )4104(b) states in its entirety that a bid shall set forth: "The portion of the work that will be done by each subcontractor under this act. The prime contractor shall list only one subcontractor for each portion as is defined by the prime contractor in his or her bid." [Italics added.] Here,TGI defined PNO as performing the Tack Oil portion of the job, and PRS performing the CCPR portion of the job. DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 RagghiantilFreitaS LLP page 3 of 4 that "changing the subcontractor's percentages in North Bay's bid did not constitute a violation of the [Subletting and Subcontracting Fair Practices] Act. Id. at 1443.4 Finally, GCC's instant bid protest is very similar to another prior failed protest. In Ghilotti Construction Company v. City of Richmond (1996) 45 Cal.App.4th 897, GCC submitted a bid protest against real party in interest Ghilotti Brothers Construction, Inc. ("GBCI"), alleging that GBCI's proposal (the lowest bidder) was nonresponsive because it deviated from the contract specifications. As here,the Richmond contract documents generally incorporated Caltrans' Standard Specifications. One specification requires that the contractor perform no less than 50 percent of the original total contract price. GBCI was the low bidder, but its original bid showed that 55.44 percent of the total contract price would be performed by subcontractors. After some discussion relating to GBCI's requested adjustments to its calculations, which would have brought it in compliance with the Standard Specifications, the City of Richmond elected to merely waive the 50 percent requirement as a mere irregularity in GBCI's bid and on the grounds, it was not substantial. Id. at 902. Of note, the Richmond's bid invitation reserved "the right to reject any or all Bids or to waive any informalities in the bidding."5 In affirming the trial court's denial of GCC's writ petition and temporary restraining order, the First District noted: "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. [Citations.]. However, it is further well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted If the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders, or, in other words, if the variance is inconsequential. [Citations.]" Id. at 904. [Italics added.].6 Further, the First District noted that "GBCI showed its bid could be brought into compliance with only slight alterations and without affecting the amount of the bid.The City Council properly waived the irregularity in the bid as inconsequential." And finally, the appellate court concluded that under the circumstances of the instant matter"we are satisfied that the award of the contract for the Cutting/Canal 4 Although the court held that"changing the subcontractor's percentages . . . did not constitute a violation of the [Subletting and Subcontracting Fair Practices]Act[,]"the low bid was deemed "nonresponsive" because listing the subcontractor percentages was a material element of the bid, as evidenced by section 8-1 of the bid specifications. Id. at 1443. "The subcontractor percentages were not required by the Act, but simply to ensure compliance with section 8-1 of the bid specifications." Id. Here,the City of Petaluma's invitation did not expressly require percentages in its bid specifications. 5 Similarly, Paragraph 18 of the City of Petaluma's bid invitation states: "The CITY reserves the right to reject any or all bids,to waive any minor irregularity in a bid, and to make award to the lowest responsive, responsible bidder as it may best serve the interest of the CITY." 6 See also, De Silva Gates Construction, LP v. Dept. ofTransp. (2015) 242 Cal.App.4th 1409, finding that Caltrans improperly found the lowest responsive bidder to be nonresponsive for a minor variance that could not affect the amount of the bid. "A bid is responsive if it conforms to the public agency's specifications for the contract." Id. at 1422. In DeSilva,the court confirmed that"a bid which substantially conforms to a call for bids may,though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential." Id. at 1422-23. DocuSign Envelope ID:OFF8384C-D73D-48EO-9AA9-1EE5OA86C571 RagghiantilFreitaS LLP page 4 of 4 Project to GBCI was fully consistent with the public policy considerations in Konica and Domar. There is no evidence of favoritism, corruption, fraud, extravagance, or uncompetitive bidding practices."7 As it relates to the instant bid protest, and consistent with the above legal discussion: a. TGI asserts that its bid was responsive and in compliance with Subletting and Subcontracting Fair Practices Act, and specifically Section 4104(b) of the Public Contract Code. b. Should the City determine that there was any uncertainty in TGI's List of Subcontractors, TO has clarified, once again, that there is no overlap between the listed subcontractors' services. And, as such, there can be no viable argument that TGI's bid could lead to bid shopping, or allegations of favoritism, corruption, fraud, extravagance, or uncompetitive bidding practices; nor could this clarification affect the amount of the bid. c. Further, the City, just like the Richmond, reserved the right to "waive any minor irregularity in a bid, and to make award to the lowest responsive, responsible bidder as it may best serve the interest of the CITY." It is certainly in the interest of the City to award the contract to TO as it is the low bidder and is abundantly qualified to perform the services outlined in its bid. Based on the plain reading of TGI's bid, and the above discussion, Team Ghilotti, Inc. respectfully requests that GCC's bid protest be rejected, and that contract for the North McDowell Boulevard Complete Street Projects be awarded to Team Ghilotti, Inc. as the lowest responsive and responsible bidder. Very truly yours, Eric Sternberger cc: Client Thomas Smith, Ghilotti Construction Company Michael M. Lum, Esq. 7 In reliance on Konica Business Machines U.S.A., Inc. v. Regents of University of California (1988) 206 Cal.App.3d 449; and Domar Electric, Inc. v. City of Los Angeles (1994) 9 CalAth 161.