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HomeMy WebLinkAboutAgenda Report - November 20, 2002 I-07•tel of l - AGENDA TITLE: Hearing to Consider the Appeal of DC Builders to Overturn the Decision of the City Manager Regarding the Award of Bid for the Henning Substation Block Wall and Gate Project MEETING DATE: November 20, 2002 PREPARED BY: Randall A. Hays, City Attorney RECOMMENDATION: That the City Council uphold the decision of the City Manager and deny the appeal of DC Builders. BACKGROUND: The second low bidder for a project titled, Henning Substation, Block Wall and Gate, filed a timely protest to an award of the bid to the apparent low bidder. We are at the final level of review that is set out in the City's procedure for protesting bids. The letter from counsel for DC Builders moving this matter to the Council is attached as Exhibit A. The protest process ends with the City Council. To date, the concerns of DC Builders have been reviewed and rejected by the Electric Utility Director and the City Manager. What is specifically before you this evening is the decision of the City Manager. That decision with its exhibits is attached to this communication as Exhibit B. That which is attached is what was sent to counsel for DC Builders. The current submittal of DC Builders revisits the points that have been addressed by the City Manager. It is necessary in order to succeed in this protest, to demonstrate that the decision of the City Manager is somehow flawed. Staff does not believe that the written submittal demonstrates that the decision of the City Manager should be overturned. Funding: Not applicable. �►' Respectfully submitted, Ra dall A. Hays, City At ney IU/2j/21102 11:11J 6489685 SENT VIA FACSIMILE & USPS City Council of Lodi Attention: City Clerk P.O. Box 3006 Lodi, California 95241-1910 Re£ Bid Protest—Henning Dear City Council Members: LOYAL A MINER AW OFFICES OF DALL D. ROXSON Attorney at Law U3 ?' street, 1" Floor amento, Califannia 95814 ephone (916) 449-2156 Fax (916) 447-2422 October 25, 2002 PAGE 01 EXH I BITA A 4 RECEIVED OCT 2 5 2002 City Clerk City of Lobi Block Wall and Gate Project I have been retained by Mr. Da 'd A. Clappis, owner and operator of DC Builders of Stockton, California to represent his co any with its bid protest of the Henning Substation block wall and gate project in the city of Lod' California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest reg irding the above -referenced project, in accordance with all applicable state laws, local rules and procedures coag bidding of public contracts. Before I present findings of fact land rebuttal to the decision of the City Manager to deny this bid protest, I must first speak to th errors of process that occurred with this protest. The City of Lodi has in place v comprehensive rules, entitled City of Lodi Protest Procedures for the processing of a bid I rotest. These procedural rules are in addition to those rules of the Public Contracts Code. Un brtunately, the City continuously violated its own rules of public process for bidding for public pr(jects. On behalf of my client, I submitt our Level One Bid Protest on September 3, 2002. Although the Department Head respan within the time limitations of the procedures, he failed to provide any such findings for his de ' The City of Lodi Protest Procedures require the City to `5aotify the protestor and any interest parties of his or her findings and actions and of the procedures for requesting reconsiderati n". [Emphasis Added] The City provided no findings nor dial they provide procedures for req reconsideration. _ISR CA —LIB --"CD _PR —EUD BEr FIN FD U7'PW COM Block Wall and Gate Project I have been retained by Mr. Da 'd A. Clappis, owner and operator of DC Builders of Stockton, California to represent his co any with its bid protest of the Henning Substation block wall and gate project in the city of Lod' California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest reg irding the above -referenced project, in accordance with all applicable state laws, local rules and procedures coag bidding of public contracts. Before I present findings of fact land rebuttal to the decision of the City Manager to deny this bid protest, I must first speak to th errors of process that occurred with this protest. The City of Lodi has in place v comprehensive rules, entitled City of Lodi Protest Procedures for the processing of a bid I rotest. These procedural rules are in addition to those rules of the Public Contracts Code. Un brtunately, the City continuously violated its own rules of public process for bidding for public pr(jects. On behalf of my client, I submitt our Level One Bid Protest on September 3, 2002. Although the Department Head respan within the time limitations of the procedures, he failed to provide any such findings for his de ' The City of Lodi Protest Procedures require the City to `5aotify the protestor and any interest parties of his or her findings and actions and of the procedures for requesting reconsiderati n". [Emphasis Added] The City provided no findings nor dial they provide procedures for req reconsideration. lb/23/20U2 11:1b 5489585 LOYAL A MINER PAGE 02 Lodi City Council October 25, 2002 Page Two A timely Level Two Bid Protes filed on September 15, 2002. 1 did not hearing would be scheduled. A, bearini of Lodi ,Protest ,Procedures require the submittal of the Request for Reconside business days after the receipt of the R violated by the City. was then Mod with. the City Manager. This protest was receive a response until October 1, 2002 indicating that a was ultimately scheduled for October 14, 2002. The City City to respond within live (5) business days from the ation, and to hold a hearing "not later that five (5) quest for Reconsideration." Again, each provision was It was interesting to find that City of Lodi failed in most cases to comply with its own rules for due process. Unfortunately, failure of the City to comply with its own xules did not stop with the bid protest. In fact, I began to become o Manager's Office on October 14, 2( Alan Vallow, and Manager Hans IIS City Manager made light of the fact bidding public projects. In fact, the significance of such a Murcof the 1 med during the informal hearing conducted in the City I sat before the City Manager, City Attorney, Director L of the Engineering Department. During this meeting the the low bidder failed to follow city procedures for Manager began to aggressively question me of the :r to comply with bidding procedures. In light of this questioirting, A=:nded to the City Manager stativag that regardless of the significance of the rule, all other bidst comply. And, ifthe rule was so insignificant, then why did the City require it. To my, the City Attorney rmuttered `you're tWW ng to much". This was very offmsive. The only tmissing were the cigars and the smoke-filled room. My client contends that because of incompleteness of the bid documents subradtted by System 3, Inc. of Carmicbaael, CafforniE, we request that the Lodi City Council consider, for the purposes of this project, DC Builders the "lowest responsible bidder"and therein award it the contract for this project. In the alternat ve, DC Builders requests that the Lodi City council reject all bids and submit a new Request for P oposals for this particular public project. The Public Coxt racts Code, as public contracts be awarded, in most a qualify for this standing, such a bid doi procedures for bidding public contract for the "lowest responsible bidder" is I contractor perform the contract as pro: 2.700 additionally requires that the bid all the requirements described in the C 01 as other local rules of the City of Lodi, specify that ,aces to the "lowest responsible bidder". In order to neat must comply with all applicable laws, rules, and ,Although the City Manager asserts that the requirement recned by case law, and only refers to the ability that the sed, the City of Lodi Notice of Inviting Bids Section nposal of the "lowest responsible bidder" comply with of Lodi Notice of Inviting Bids. leI'Ljtlbbl ir:le 6489685 LOYAL A MINER PAGE 03 Lodi City Council October 25, 2002 Page Three The City of Lodi Notice of,Inv: Yng ,Bids Section 2.400(A) states "[e]ach proposal include all addenda or clarifications iss ied during the bidding period acknowledged by the bidder's signature thereon, Failure to i o include or acknowledge an addendum or clarification may result in the proposal being rejeatt d as not responsive." [Emphasis ,Added] This bid process required that a Receipt of Addendum No. 1 be submitted with the bid proposal. In fact, on the Receipt of Ad dcndum No. I itself states in bold "Note: This acknowledgment must be submitted with the Bid Proposal'. This would indicate the importance of this requirement. Unfortunately, the City Manage r, hungry for the lowest possible bid, decided to ignore this requirement by ruling it to be insigr ificant. He then decided to merely apeculate that the bidder didn't receive the notice in an ati empt to support his position. However, the City Manager does not know this to be fact, yet he s it to defend his decision. Contriving facts to support a position has no place in the process of 4warding government contracts. In this case, System 3 Inc., the' west monetary bidder" failed to include in its bid documents the Receipt of Addendum . 1, a requirement expressly addressed not only in the Receipt of Addendum No. I itself, but by local rules (see Section 2.700). However, bid documents submitted by DC Builders, m I allege is the "lowest responsible bidder" complies with all requirements of both state law local rules for bidding for public contracts. My client addresses the fact tlu Engineer's estimate of quatttities of we Inc. bid is $25,400.00 less than the Bnl considers "that the "lowest responsible but also to the quality, fitness, and cap, the proposed work." A bid comsiderab quality of materials and workmanship t public entity. In fact, this bid is less til In the City Manager's letter of d below the estkote, which t nay suggest low bid by itself is not a basis for rejecti act alone. Our protest looks at the "tot bid proposal burdened with error. Awa is only inviting litigation It is the respo to protect the safety of tbe public and tr city's budget. the System 3, Inc. bid is considerably less than the k to be done, which is $95, 000.00. In fact, the System 3, neer's Estimate. Section 2.700 of the local rules Wee' refers to not only the attribute of trustworthi nips, city of the low monetary bidder to satisfactorily perform less tbam the Engineer's Estimate would suggest that the at can be contemplated may be less than expected by the a the cost of the project would be to DC Builders. Inial, he states that "[w]h& the bid of System 3, Inc. is o the City that vigilance is important on the City's part, a )n." However, our bid protest is not relying solely on this city of the circumstances" surrounding this bid proposal; a ding a contract to a bidder whose bid is flawed with error tsibil ity of the city to exereige its rules that are designed prevent costly litigation that can adversely impact the lbllJflbal 1(:'lb b48Jb8b LOYAL A MINER PAGE 64 Lodi City Council October 25, 2002 Page Four And 5nalty, included in the No ce of Inviting Bids is expressed language announcing the opportunity for minority enterprises to compete for this public contract. However, the noxxnal a asd_custobuarvprocess ofinforbaing su ontractors ofpublic projects is from the plans and Specifications List, of which the name f System 3, Inc. is absent. The omissiom of System3, Inc. from this list impacts upon the spirit of attracting minority subcontractors from participating in the bidding process for public contracts. In fact, the City ofLodi Notice notifies all bidders that is will affirrna advertisement, minority business enter response to this :invitation and will not or national origin in consideration for i customary processes for such notificata opportunity to submit bids. As factually demonstrated, the I to the City of Lodi Notice of Inviffng B processing bid protests. In light of the,. we request that the award for this publi to City of Lodi Notice of Inviting Bids future bidding for public projects in the On behalf of DC Builders, tha send your response to this bid protest please give me a call. cc: DC Builders '"Inviting Bids expressly states "[t]ixe City of Lodi hereby l , ensure that in any contract entered into pursuant to this ses will be afforded full opportunity to submit bids in discriminated against on the grounds of race, color, sex award." [Emphasis Added] Ignoring the normal and L is not affirmative ensuring that all are afforded the fall I proposal submitted by Systems, 3, Inc. does not conform Is. Nor did the City comply with its own nines for errors and omissions of both the City and System 3, Inc., contract be given to DC Builders of Stockton pursuant :tion 2.700. To do :nothing would surely suggest that ,ity of Lodi need not comply with local bidding rules. you for your consideration of this bid protest. please -eetly to my office. If you need further information, LAW by Sincerely, RANDY D. ROXSON Attorney at Law D OXSO CITY COUNCIL PHILLW A. PENNINO, Mayor SUSAN HITCHCOCK Mayor Pro Tempore EMILY HOWARD KEITH LAND ALAN S. NAKANISHI October 17, 2002 Mr. Randy D. Roxson Attorney at Law 813 F Street, 1" Floor Sacramento, CA 95814 CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI. CALIFORNIA 95241-1910 (209)333-6702 FAX (209) 333-6807 H. DIXON FLYNN City Manager RANDALL A. HAYS City Attorney SUSAN J. BLACKSTON City Clerk EX1119M B , Re: Bid Protest — DC Builders re: Henning Substation Block Wall and Gate Dear Mr. Roxson_ This letter is in response to your Level Two protest to the above referenced project. This Level Two protest review follows your request for reconsideration of the Department Head's decision to deny your bid protest. Your Level Two protest letter dated September 15, 2002 was received by this office September 18, 2002. Based upon agreement, we met to consider your protest on October 14, 2002 in the City Manager's Conference Room at City Hall here in Lodi. In attendance at that meeting, in addition to you and myself, were Electric Utility Director Alan Vallow, Hans Hansen, Manager, Engineering and Operations and Randy Hays, City Attorney. At this meeting you were given the opportunity to describe to me why you believed the City should not award a contract to the apparent low bidder, System 3, Inc. You presented and we discussed the points contained in your protest letter of September 15, 2002. Various documents were present such as the bid documents, Addendum #1 to the bid documents, as well as other documents relating to the disbursement of plans and specifications. I have reviewed all documents surrounding this project bid. Based upon my review and the following findings I hereby deny your protest. I find that this project is a public project as defined in California Public Contracts Code . §20161. This finding therefore makes it, pursuant to California Public Contracts Code §20162, a requirement that the award be made to the lowest responsible bidder. Notice of this bid was published in the Lodi News -Sentinel on August 10'h and 13"', 2002. The bids were opened August 28, 2002. Four bids were received. System 3, Inc., is the lowest bidder with your client DC Builders being the second low bidder. The bid of System 3, Inc., is $69,600.00 while your clients bid is $89,500.00. The engineer's estimate is $95,000.00. There was one Addendum to the original bid specifications. Your first point of contention in your appeal is that System 3, Inc., did not include with their bid package Addendum No. 1. You allege that since Addendum No. 1 states that an acknowledgement must be submitted with the bid proposal, failure to do so makes the bid non-responsive and therefore should not be considered by the City. i A review of the available documents suggests a different conclusion. The bid notice i stated that "The City Council reserves the right to reject any and all bids and to waive any informality in the completion of such forms, and to award to the lowest responsible bidder. The bid specification, at page 2.2 in Section 2.400A states in the last paragraph, "Each proposal shall include all addenda or clarifications issued during the bidding period acknowledged by the bidder's signature thereon. Failure to so include or acknowledge an addendum or clarification may result in the proposal being rejected as not responsive." Additionally, the nature of the addendum needs to be considered. The addendum issued on this project did not alter the nature of the project being bid. See Exhibit A. The addendum simply pointed out that bidders needed to be appropriately licensed as a contractor by the State of California. Lastly, in order to be able to return the addendum acknowledgement, one would first have to actually receive the addendum. The facts in this matter demonstrate that System 3, Inc., was never sent a copy of the addendum by the City. The City had no knowledge that System 3, Inc., had a copy of the plans and specifications. Exhibit B to this letter represents the listing of those that received plans j and specifications. While we do not know for sure we believe that System 3, Inc., j received or reviewed the plans and specifications at one of the list builders exchanges. It j would not seem fair to penalize a bidder for not doing any act of which they had no knowledge. Based upon the foregoing discussion it is my finding that the bid of System 3, Inc., is in substantial compliance with the bidding requirements for this project. I further find that the lack of submittal of the addendum acknowledgement is inconsequential having no effect on the bid submittal in that it did not affect the amount of the bid or give System 3, Inc., an advantage or benefit not allowed other bidders. Valley Crest Landscape v. City Council (1996) 41 Cal. App. 4"' 1432, 49 Cal. Rptr. 2d 184; Konica Business Machines v. Regents of the University of California (1988) 206 Cal. App. 3d 449, 253 Cal. Rptr. 591. j Another of your expressed concerns is that the bid of System 3, Inc., is somewhat below the Engineer's Estimate. The City recognizes that the low bid is somewhat below the estimate. However, there is no apparent mathematical error, nor is there any reason to believe that a bid submitted by a properly licensed contractor, who had an opportunity to review the plans and specifications, is not a valid bid. The City's obligation is to award to the lowest responsible bidder. A bidder is a responsible bidder if that bidder can perform the contract as promised. MCM Construction Inc., v. City & County of San Francisco (1998) 66 Cal. App. 4'h 359, 78 Cal. Rptr. 2d 44. The City has a bid from a properly licensed contractor in System 3, Inc.; System 3, Inc., has done other projects successfully; and the current owner of System 3, Inc., has done previous work successfully for the City. You have presented no evidence for my consideration which would indicate that System 3, Inc., cannot perform this project in a responsible manner. While the bid of System 3, Inc., is below the estimate, which may suggest to the City that vigilance is important on the City's part, a low bid by itself is not a basis for rejection. You also express some concerns about the listing of subcontractors. The City's specifications require that a prime contractor (System 3, Inc.) list subcontractors who will perform work or labor in excess of one-half of one percent of the total amount bid. This requirement is consistent with what is found in §4014 of the California Public Contracts Code. Work that is not listed as being performed by a subcontractor is the responsibility of the prime contractor. See City Specifications/bid form and §4106 of the California Public Contracts Code. System 3, Inc., listed two subs on its bid submittal. One sub is shown for masonry work and one sub for temporary fencing. Based upon the contract documents and the California Public Contracts Code the remaining work must be done by the prime contractor. That is the prime's obligation and the City's expectation. You have presented no evidence which demonstrates that System 3, Inc., cannot meet the City's expectations. On the strength of your presentation I find no basis for rejection of the bid of System 3, Inc. Your final point I will address seems to revolve around some concerns that minority business enterprises were somehow unable to compete for this project. I would first point out that you have not suggested that this is an argument that applies to your client. You instead seem to be suggesting that there is a class of bidder out there that was denied an opportunity to bid since we did not show System 3, Inc., on our mailing list. Exhibit C to this letter is the list to which the City directly sent notices inviting bids. As previously indicated, Exhibit B is the listing of those that actually received plans and specifications. A review of that list demonstrates a wide array of recipients ranging from contractors, to builders exchanges, to a state agency. Of particular note is that the State of California, Department of General Services received plans and specifications. These were sent to them in order to directly address the concern you express. The Department of General Services is a repository to which minority business may refer in order to become aware of governmental projects. Builder's exchanges are as well a resource that is available to assist in the discovery of projects available as well as who has reviewed plans and specifications. As with your other issues, I find nothing in the record before me which would support of award to other than the low bidder. Pursuant to the City's procedures, you may wish to move this denial of your protest to level three. An additional copy of our procedures is supplied with this letter as Exhibit D. Thank you for your attention to this matter. Very truly yours, H. DIXON FLYN City Manager HDF/pn CITY OF LODI Electric Utility Department EXHIBIT: A ADDENDUM NO. 1 PROJECT: HENNING SUBSTATION Block Wall and Gate Notice is hereby given that the contractor's license requirement has been changed as follows: SECTION 1. NOTICE INVITING BIDS Page 1.2 Eliminate: The-prime--contractor-on-this-projeG"hall-possess-a--valid-State-of-Gal ifor-nia-C lass -B sentrastor's-lisense: Add: Bids must be from appropriately State of California licensed contractors. Dated: August 20, 2002 Ordered by: Hans Hansen ' Manager, Engineering and Operations X621 -1i 4at e" Hans Hansen 7 Manager, Engineering and Operations fllnck Walt Addomdum 1 dna, 0F1Y•nm • City of Lodi, Electric Utility Department Plans and Specifications List Estimated Cost $95.000 EXHIBIT B HENNING SUBSTATION BLOCK WALL & GATE Bid Oeenina - Auaust 2A 2W2 11:W a m Company Attention Address City, State, Zip Phone Bk.# Electric Utility Hans Hansen MSC Lodi CA 1 Department Electric Utility Jess Kerekes MSC Lodi CA 2 Department Purchasing Department Joel Harris MSC Lodi CA 3 Public Works Dept. Wally Sandelin City Hall Lodi CA 4 Contractors Information Jim P.O. Box 6390 Fresno CA 93703 559 325-7054 Network 1629 Pollansky #113 Clovis CA 93612 5 F W Dodge Isabell 1791 Tribute Road, Suite D Sacramento CA 95815 916-920-2240 6 Sacramento Builders Margery Miller 1331 T Street Sacramento CA 95814 916 442-8991 7 Exchange Small and Minority Department of 1531 1 Street Floor 2 Sacramento CA 95814-2016 8 Businesses General Services Stockton Builders P.O. Box 8040 Stockton CA 95208 209 478-1000 7500 N. West Lane Stockton CA 95210 9 -Exchange Valley Builders Ma Nard P.O. Box 4307 Modesto CA 95352 209 522-9031 10 Exchange 11 IS Kansas Modesto CA 95351 Diede Construction P.O. Box 1007 Woodbridge CA 95258 209 369-8255 11 11780 N. Highway 99 Lodi CA 95240 DC Builders David Cla pp' �s 1203 Buena Vista Avenn Suite A Stockton CA 12 Younger General Contractors Inc. Court Younger g 3358 Lu un Drive, Unit B y g Rancho Cordova CA 95742 (916) 631-8000 13 Placer Co Contractors Chea 271 Auburn Ravine Road Auburn CA 95603 14 Assoc Case Construction Wally Case 1225 S Sacramento St Lodi CA 95240 334-9634 15 16 17 August 29, 2002 HENNING SUBSTATION BLOCK WALL AND GATE Mailing List: Notice Inviting Bids and Information to Bidders. August2002 Company Attention Address City, State, Zip Phone Bk.r DC Builders 1203 A Buena Vista Avenue Stockton CA 95203 462-4004 Diede Construction PO Box 1007 Woodbridge CA 95259. 369-8255 Ed Loo Masonry 1115 Black Diamond Way Lodi CA 95240 333-7824 GTS Construction 1238 Bentwood Drive Galt CA 95632 H Max Lee Inc. PO Box 1690 Lodi CA 95241 John D. Wait Masonry John Wait 16201 N. Tretheway Lodi CA 95240 Matt McCarty Matt McCarty 417 River Meadows Woodbridge CA 95258 Wally Case 1225 S. Sacramento Street Lodi CA 95240 W,USEW.ENG`.Bid Spccs`.BLOCK WALL AND GATE',N1B1B.doc 1 lulu 18. 2002 City of Lodi Protest Procedures*�►M; General Conditions The City's review of any protest will be limited to violations of state or local laws or regulations, violations of the City's acquisition procedures, violations of the City's protest procedures, or City's failure to review a complaint or protest. Protests based on restrictive or severely defective specifications, or improprieties in any type of solicitations that are apparent prior to closing date for proposals, must be received by the City within a reasonable time in advance of scheduled proposal receipt but no later than five (5) business days after receipt of the bid by the proposer. All other protests must be received by the City within five (5) business days of the action on which the protest is based. The initial protest filed with the City shall be in writing and shall: .1. Include the name, address and telephone number of the protester, and the name of a contact person. 2_ Identify the number, date and description of the solicitation. 3. Contain a statement of the grounds for protest and any supporting documentation. The grounds for the protest must be supported to the fullest extent feasible. Additional materials in support of an initial protest will be considered only if filed within the time limits specified. 4. Indicate the ruling or relief desired from the City. A protest may be considered, even if the initial filing is late, under the following circumstances: 1. Good cause based on compelling reasons which are beyond the protester's control, whereby the lateness is due to the fault of the City in the handling of the protest submission. 2_ The City determines the protest raised significant issues to a procurement practice or procedure. 3_ A court or competent jurisdiction requests, expects or otherwise expresses interest in the City's decision_ No formal briefs or other technical forms of pleading or motion are required, but a protest and other submissions should be concise, logically arranged, clear and legible. Any additional information requested or required by the City from the protester, or interested parties shall be submitted as expeditiously as possible, but in no case later than five (5) business days after the receipt of such request unless specifically excepted by the City. CONFIDENTIALITY Materials submitted by a protester will not be withheld from any interested party outside of the City or from any Government agency which may be involved in the protest, except to the extent that the withholding of information is permitted or required by law or regulation. if the protester considers that the protest contains proprietary materials which should be withheld, a statement advising of this fact may be affixed to the front page of the protest document and the alleged proprietary information must be so identified wherever it appears. FURNISHING OF INFORMATION ON PROTESTS The City shall, upon request, make available to any interested party, information bearing on the substance of the protest, including: 1. Any other documents that pertain to the protest, including correspondence with the bidders, and 2. A statement by the City explaining its actions and the reasons for them. WITHHOLDING OF AWARD When a protest has been filed before the deadline for submitting proposals, the City will not open proposals prior to the resolution of the protest. When a protest has been filed after the opening of the bids but before the contract award, the City will not make an award for five days following its decision on the protest. When a protest has been filed after the award but prior to execution of the contract, the City will not proceed with the execution of the contract prior to resolution of the protest. Exceptions to the above may occur if the City determines that: 1. The items or services to be procured are urgently required, or 2. Delivery or performance will be unduly delayed by failure to either make the award promptly or to continue with the procurement, or 3. Failure to make prompt award or to continue with the acquisition will otherwise cause undue hardship to the City. PROTEST REVIEW - LEVEL ONE Upon receipt of a protest, the head of the department initiating the procurement will review all relevant materials associated with the protest. The Department Head will notify the protester and any interested parties of his or her findings and actions and of the procedures for requesting reconsideration. The report shall include the following as relevant: 1. Copies of all relevant documents; 2. A copy of the Request for Proposals, including pertinent provisions of the specifications. 3. A copy of the abstract of bids. PROTEST REVIEW - LEVEL TWO Reconsideration of a decision by the Department Head may be requested by the protester or any interested party. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law or fact made. The request for reconsideration of the Department Head's decision shall be filed no later than five (5) business days after the Department issues its written report, and shall be filed with the City Manager. Upon receipt of the request for reconsideration, the City Manager shall schedule an informal administrative hearing with the protester and the Department Head. The hearing shall be held not later than five (5) business days after the receipt of the request for reconsideration. The City Manager shall issue, in writing, the City's response to the reconsidered protest within five (5) business days of the administrative hearing. EXHIBI" . D q PROTEST REVIEW — LEVEL THREE Reconsideration of a decision by the City Manager may be requested by the protester or any interested parry at a hearing by the Lodi City Council. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law or fact made. The request fora hearing by the City Council shall be filed no later than fav 5) business days after the City Manager has rendered his or her decision, and shall be fie with the City Clerk. Upon receipt of the request for reconsideration, the City Clerk shall schedule the hearing on the agenda of the City Council. The hearing shall be held not sooner than fourteen (14) cWWWar days, nor later than thirty (30) calendar days, after the receipt of the request for hearing. The -protester may address the City Council with factual and legal arguments in favor of reversal or modification of the decision of the City Manager. The appellant process ends with the City Council's decision; however, the aggrieved party has those remedies afforded by the state courts. The City may refuse to decide any protest where the matter involved is the subject of litigation before a court of competent jurisdiction. FILE COPY LAW OFFICE OF RANDALL D. ROXSON 813 `F' Street, 1St Floor Sacramento, California 95814 Tel (916) 447-2156 Fax (916) 447-2422 FACSIMILE TRANSMISSION To: City Council of Lodi RECEIVED Attn: City Clerk OCT 2 5 2002 Fax#: (209) 333-6807 CityClerk City of Lodi From Randy D. Roxson, Attorney at Law Date: 10/25/02 Ref Bid Protest—Henning Substation Block Wail and Gate Project Page(s) (incl. cover): 2 V/cc HR Me� :::Cm IS LIB _.LCA Please see attached. ?hank you. CD :--'BUD _PR PD PW _FIN FD COM THE INFORMATION CON'T'AINED IN THIS FACSIM[ILE IS CONFIDENTIAL AND MAY CONTAIN PRIVT.L,EGED ATTORNEX-CLIENT INFORMATION OR WORK PRODUCT. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE RTrENDED RECIPIENT, ANY USE, DISSEMINATION, OR DISTRIBUTION OF THIS COMMUNICATION IS PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETURN THE ORIGINAL MESSAGE TO US. THANK YOU FOR YOUR COOPERATION. LAW OFFICES OF RANDALL D. ROXSON Attorney at Law 813 `F' Street, 1" Floor Sacramento, CaWornin 95814 Telephone (916) 447-2156 Fax (916) 447-2422 October 24, 2002 SENT VIA FACSIMILE & USPS City Council of Lodi Attention: City Clerk P.O. Box 3006 Lodi, California 95241-1910 RECEIVED 2002 OCT 25 d-11 9:25 C11 'f OF LOU! Ref. Bid Protest --Hennaing Substation Block Wall and Gate Project Dear Council members: I have been retained by Mr. David A. Clappis, owner and operator of DC Builders of Stockton, California to represent his company with its bid protest of the Henning Substation block wall and gate project in the city of Lodi, California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest regarding the above -referenced project, in accordance with all applicable state laws, local rules and procedures concerning bidding of public contracts. As such, I request reconsideration of the decision made by the City Manager in regard to the award of this contract, and that a hearing be scheduled in this regard. All findings of fact and rebuttal to the City Manager's findings will be provided under separate cover, If you treed further information, please give me a call. Sincerely, LAW OS OF RANDAL D. OXSON by RANDY DURO. Attorney at Law cc: DC Builders BuIL-roFEE Rs August 28, 2002 City of Lodi Electric Utility Department 1331 South Ham Lane Lodi, CA 95242 RE: Henning Substation Block Wall and Gate NOTICE OF INTENT TO PROTEST To Whom It May Concern: I am forwarding the bid documents for the above referenced project to legal counsel for review and to validate and file a formal protest. This is based upon information I received via telephone conversation that indicated your intent to award this project to the apparent low bidder despite the fact that he failed to complete and submit all the required bid documents, i.e., Addendum # 1. Under Section 2.700, Award of Contract, it states that the contract, if awarded, will be to the lowest responsible bidder whose bid complies with all the requirements described. Addendum #I clearly states the requirement that the acknowledgement be signed and returned with the bid proposal. The failure to submit a complete bid package should render the bid as non-responsive and should not be considered. The failure of the contractor to do so also reflects his lack of due diligence in preparing and submitting this bid. This goes to fitness, capacity and trustworthiness as outlined in Section 2.700. Regardless of the content of the Addendum and its affect on the contract price, three of the four bidders complied fully and responsibly. I will, as stated previously, discuss this matter with counsel for further action and notify you within 10 days with formal protest. In order to provide counsel with all pertinent documents pertaining to this bid, please forward via snail or fax, a copy of the addendum and the apparent low bidders proposal as submitted at the time of bid. Thank you for your prompt attention to this matter. Sincerely, , David A. ��- Clappis, Owner DC BUILDERS Cc: City Clerk 1203 A Buena Vista Avenue - Stockton, CA 95203 - Phone 209 462-4004 - Fax 209 462-7622 - California Lic. #386990 FILE COPY LAW OFFICE OF RANDALL D. ROXSON 813 `F' Street, I st Floor Sacramento, California 95814 Tel (9I b) 447-2156 Fax (916) 447-2422 FACSIMILE TRANSMISSION To: Mayor, City of Lodi From: Randy D. Ronson, Attorney at Law Date: 9/17/02 Ref: .Henning Substation Bid Protest Page(s) (incl. cover): I Deter Mayor: Currently there is a bid protest in the process for the Henning Substation project of which a contract is scheduled to be awarded at the next city council's meeting. Please suspend awarding this contrast until the bid protest is fully heard. Thank you for your consideration. z —H HR LAw — CA UB by PR UD PD FIN PW —F� Com Sincerely, OF R.ANDALL D. ROXSON D. %RXSO'N at Law Dictated by the writer, signed and nml d in his Abselce to avoid delay. THE INFORMATION CONTAINED IN THIS FACSIMILE IS CONPIDENMAL AND MAY CONTAIN PRIVILEGED ATTORNEY-CLIENT INFORMATION OR WORK PRODUCT. THE MFORMA77ON IS rNTENDE.D ONLY FOR THE USE Of THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY USE, DISSEMINATION, OR DISTRISUI'ION OF THIS COMMUNICATION IS PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, AND RETURN THE ORIGINAL MES5A013 TO US_ THANK YOU FOR YOUR COOPERATION. LAW OFFICES OF RANDALL D. ROXSON Attorney at Law 813 'F' Street, 1 °` Floor Sacramento, California 95814 Telephone (916) 447-2156 Fax (916) 447-2422 October 24, 2002 SENT VIA FACSIMILE & USPS City Council of Lodi Attention: City Clerk P.O. Box 3006 Lodi, California 95241-1910 Ref. Bid Protest—Henning Substation Block Wail and Gate Project Dear Council members: FILE COPY RECEIVED OCT 2 8 2002 cWoaf 11%dr I have been retained by Mr. David A. Clappis, owner and operator of DC Builders of Stockton, California to represent his company with its bid protest of the Henning Substation block wall and gate project in the city of Lodi, California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest regarding the above -referenced project, in accordance with all applicable state laws, local rules and procedures concerning bidding of public contracts. As such, I request reconsideration of the decision made by the City Manager in regard to the award of this contract, and that a hearing be scheduled in this regard. All findings of fact and rebuttal to the City Manager's findings will be provided under separate cover. If you need further information, please give me a call. Sincerely, LAW OF S OF RANDA=D.OXSON by RANDY OXSON Attorney at Law HR cc: DC BuildersCJVf SIS -SCA LIB CD PR D P FIN W _FD POM 19/23/2682 17:10 6489685 1 LOYAL A MINER SENT VIA FACSIMILE & USPS City Council of Lodi Attention: City Clerk P.O_ Box 3006 di, LoCalifornia 95241-1910 ReL Bid protest --Henning Dear City Council Members: LAW OMCES OF ]ALL D. ROXSON Attomey at Later 113 'F' street, 1 *L Floor mnaento, Calffoniia 95814 ephone (916) 447-2156 Fox (91.6) 447-2422 October 25, 2002 PAGE 01 FILE COPY RECEIVED OCT 2 5 2002 acy o Clerk city nodi Block Wall and Gate Project I have been retained by Mr. Da ' A. Clappis, owner and operator of DC Builders of Stockton, California to represent his co x4mW with its bid protest of the Henning Substation block wall and game project in the city of Lodi, California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest reg irding the above -referenced project, in accordance with all applicable state laws, local rules and cedurCs concerning bidding of public contracts. Before I present findings of fact land rebuttal to the decision, of the City 1Mhuager to deny this bid protest, I must first speak to th errors of process that occurred with this protest. The City of Lodi has iu place v comprehensive rules, Entitled City of Lodi ,Protest Procedures for the processing of a bid I rotest. These procedural, rules are in addition to those rules of the Public Contracts Code. Un brtunately, the City continuously violated its own, rales of public process for bidding for public 'ects. On behalf ofmy client, I sul ,Although the Department Head res to provide any such findings for his to "notify the protestor and any into procedures for requesting reconsido did they provide procedures for req our Level One Bid Protest on September 3, 2002. within the time limitations of the procedures, he failed The City of Lodi Protest Procedures require the City panics of bis or her findings and actions aid of the '• [Emphasis Added] The City provided no findings nor reconsideration. �HR -� 1S CA �CD �UB PR � UD ,- FD ��COM Block Wall and Gate Project I have been retained by Mr. Da ' A. Clappis, owner and operator of DC Builders of Stockton, California to represent his co x4mW with its bid protest of the Henning Substation block wall and game project in the city of Lodi, California. As such, on behalf of DC Builders, I hereby submit this Level Three Bid Protest reg irding the above -referenced project, in accordance with all applicable state laws, local rules and cedurCs concerning bidding of public contracts. Before I present findings of fact land rebuttal to the decision, of the City 1Mhuager to deny this bid protest, I must first speak to th errors of process that occurred with this protest. The City of Lodi has iu place v comprehensive rules, Entitled City of Lodi ,Protest Procedures for the processing of a bid I rotest. These procedural, rules are in addition to those rules of the Public Contracts Code. Un brtunately, the City continuously violated its own, rales of public process for bidding for public 'ects. On behalf ofmy client, I sul ,Although the Department Head res to provide any such findings for his to "notify the protestor and any into procedures for requesting reconsido did they provide procedures for req our Level One Bid Protest on September 3, 2002. within the time limitations of the procedures, he failed The City of Lodi Protest Procedures require the City panics of bis or her findings and actions aid of the '• [Emphasis Added] The City provided no findings nor reconsideration. 1012312002 17:10 6489685 Lodi City Count October 25, 2002 Page Two A timely Level. Two Sikh Prot £dad on September 15, 2002. 1 did r hearing would be scheduled. A bear of Lodi Protest Procedures require t submittal of the Request for Reconsi business days after the receipt of the violated by the City. LOYAL A MINER : was them filed with, the City Manager. This protest was receive a response and October 1, 2002 indicating that a was ultimately scheduled for October 14, 2002. The City City to respond w%tbuln five (5) business days from the axion, and to bold a hearing "trot later that five (5) quest for Reconsideration," Again, each provision was It was interesting to find that City of Lodi faiacd in most cases to comply with its own rules for due process. Unforhmiately, &Hure of tboe City to comply with its own rules did not stop with the bid protest. In fact, I began to become o Manager's Ofihx on October 14, 2( Alan Vallow, and. Manwger Hans I -h City Manager made Bight of the fact bidding public projects. In fact, the significance of such a lure of the l reed during the informal bearing conducted in the City I sat bc&re the City Manager, City Attorney, Director L of the Emgbeeft Department. During this meeting the the low bidder failed to follow city procedures for Manager began to aiggrossively question me of the r to comply with bidding procedures. In light of this questionbg, i nded to the City Manager stadug that regardless of the signi 6camo of the rule, all other mast comply. And, if tho rule was so insignificant, then why diol the City require it. To my, the City Attorney muttered 11you7re talldug to much". This was very offensive. The only ' mi=ssing were the cigars and the smoke-filled zoom. My client contends that because of incompleteness ofthe bid documents submitted by System 3, Inc. of Carw icb�ael, Cabo ' we request that the Lodi City Council consider, for the purposes of this project, DC Bw'14ers the "lowest responsible bidder and therein award it the contract for 2b project. In the ahterna , DC Builders requests that the Lodi City Council reject all bids and submit a new lestfor oposals for flys particular public project. The Public Contracts Code, as public contracts be awarded, in most a qualify for this standing, such a bid doe procedures for bidding public contract: for the "lowest responsible: bidder" is g contractor perforin the contract as pro: 2.700 additionally requires that the bid g1 the requhmneWs described in the G eIl as other local rules of the City of Lodi, specify that cases to the "lowest responsible bidder". In order to meat must comply with ad applicable laws, rules, and .Although the City Manager asserts that the requirem=t verned by case law, and only refers to the ability that the ised, the City of Lodi Notice of Inviting Bids Section roposal of the "lowest responmble bidder" comply with of Lodi Notice of Inviting Bids. 10/23/2002 17:10 6489685 LOYAL A MINER PAGE 03 Lodi City Council October 25, 2002 Page 'Three The City of Lodi Nonce of Inv ng ,bids Section 2.400(A) states "te]ach proposal shall include all addenda or ela ifieataions ' during the bidding period acknowledged by the bidder's signature thereon. Failure TO or clarification may result in the proposal being rejs not responsive." [Emphasis Added] This bid process required that a proposal. In, fact, on the Receipt of Ac acknowledgment must be submitted importance of this requirement. Ubfortunately, the City Manag this requirement by ruling it to be insig bidder didn't receive the notice in an a does not know this to be fact, yet be u; position has uo place in the process of Receipt of Addendum No. 1 be submitted with the bid iendum No. I itself states in bold "Note: This with the Bid Proposal". This would indicate the hungry for the lowest possible bid, decided to ignore icaut. He then decided to merely to that the to support his position However, the City Manager it to defend his decision Contriving facts to support a government couhacts. In this case, System 3 Inc., the` west bidder" failed to include i n its bid documents the Receipt of Addendum . 1, a requirement eWessly addressed ;not only in the Receipt of Addendum No. I itself, but by local rules (see Section 2.700). However, bid documents submitted by DC Builders, m I allege is the "lowest responsible bidder" complies with all requirements of both state law local rules for bidding for public contracts. My client addresses the fact the Engineer's estimate of quantities of we Inc. bid is $25,400.00 less than the Eq considers "that the "lowest responsible but also to the quality, fitness, and caps the proposed work." A bid considerab quality of materials and workmanship t public entity. In fact, this bid is less tl In the City Manager's letter of below the estimate, which v ay suggest low bid by itself isnot a basis for reject act alone. Our protest looks at the "toi bid proposal burdened with error. Aw4 is only inviting litigation. It is the respc to protect the safety of tbr, public and t city's budget. the System 3, Inc. bid is considerably less than the � to be done, which is $95, 000.00. In fact, the System. 3, peer's Estimate. Section 2.700 of the local rules dddee' refers to not only the attrE ute of trustworthiness, ;ity of the low monetary bidder to satisfactorily perform less than the Engineer's Estkaate would suggest that the at cm be contemplated may be less than expected by the n the cost of the project would be to DC Builders. 'd, he states that "[w]hile the bid of System 3, Inc. is 3 the City that vigilance is important on the City's part, a n." However, our bid protest is not relying solely on. this Uty of the circumstances" surrounding this bid proposal; a ding a contract to a bidder whose bid is flawed with error saWlity of the city to exercite its rules that are designed prevent costly litigation that can adversely impact the 10123/2002 17:10 6489685 1 LOYAL A MINER PAGE 04 Lodi City Council October 25, 2002 Page Four And finally, included in the No opportunity for minority enterprises to And g-40 y process of infor dig sr Specifications List, of which the name from this list impacts upon the spirit of bidding process for public contracts. In fact, the City of Lodi Notice notifies all bidders that is will a rmati advertisement, minority business cnterl response to this invitation and will not or national origin in consideration fvr t customary processes for such notifioM opporluvity to subunit bids. As factually demonstrated, the t to the City of Lodi Notice of Inviting B processing bid protests. In light ofthes we request that the award for this publi to City oflodi Notice of Inviting Bids 1 future bidding for public projects in the On behalf of DC Builders, tha send your response to tWs bid protest please give me a call. cc: DC Builders of Inviting Bids is expressed language announcing the mpete for this public coutract. However, the normal Detractors of public projects is from the Plans and System 3, Inc. is abswt. The omission of System 3, Inc. tracting minority subcontractors from participating in the Inviting Bids evressly states "[t]hc City of Lodi hereby fy ensure that in any contract entered into pursuant to this ses will be afforded full opportunity to submit bids m : disedwinated against on the grounds of race, color, sex award." [Empkisis Added] Ignoring the normal and L isnotaff tive ensuring tbat aIf are afforded the full I proposal subn*ted by System, 3, Inc. does .not conform !s. Nor did the City comply with its own ruses for errors and omissions of both the City and System 3, Inc., contract be given to DC Builders of Stockton pursuant :tion 2.700. To do wddng would surely suggest that 'sty of Lodi need not comply with local bidding rules. for your consideration of this bid protest. Please r to my office. If you need further information, .LAW by Sincerely, RANDY D. ROXSON Attorney at Law D OXso