HomeMy WebLinkAbout19 CIP 7139 MCAS ROAD 02-07-05
AGENDA REPORT
Agenda Item 19
Reviewed:
City Manager
Finance Director
MEETING DATE: FEBRUARY 7,2005
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT: AWARD OF CONTRACT FOR CONSTRUCTION OF THE PHASE 1
TUSTIN LEGACY BACKBONE INFRASTRUCTURE PROJECT
(VALENCIA NORTH LOOP ROAD, ARMSTRONG AVENUE,
LANDSDOWNE ROAD, SEVERYNS ROAD, AND WEST CONNECTOR
ROAD) (CIP NO. 7139)
SUMMARY
Bids for this project have been received and a construction contract is ready to be awarded.
The proposed project will construct street, traffic signal, parkway, sidewalk, storm drain,
domestic water, reclaimed water, sanitary sewer, and dry utility backbone infrastructure
improvements on Valencia North Loop Road, Armstrong Avenue, Landsdowne Road,
Severyns Road, and West Connector Road at Tustin Legacy.
RECOMMENDATION . .
It is recommended that the City Council 1) deny the bid protest submitted by Sialic
Contractors Corporation dba Shawnan, and 2) award the construction contract for the
Phase 1 Tustin Legacy Backbone Infrastructure Project (Valencia North Loop Road,
Armstrong Avenue, Landsdowne Road, Severyns Road, an? West Con~ector. Road~ (CIP
No. 7139) to SEMA Construction, Inc., the lowest responsive, respons~ble bidder, In the
amount of $23,798,202.50 to be effective February 15, 2005, and authorize the Mayor and
the City Clerk to execute the contract documents on behalf of the City.
FISCAL IMPACT
Under a separate agenda item, the City has approved a Reimbursement Agreement in
excess of $31,000,000 with Lennar Homes to fund the project. This Agreement includes
reimbursement for construction costs, construction contingencies, construction
management, design, city administration and construction of a portal entry design on
Valencia Avenue at Red Hill Avenue. The City Council has also approved, at their January
3, 2005 meèting, a Reimbursement Agreement with Irvine Ranch Water District (IRWD) for
the project's domestic water, sanitary sewer, and reclaimed water facilities in the estimated
amount of $5,383,280.
Award of Contract for Construction of the Phase 1 Tustin Legacy Backbone Infrastructure
Project (Valencia North Loop Road, Armstrong Avenue, Landsdowne Road, Severyns
Road, and West Connector Road) (CIP No. 7139)
February 7,2005
Page 2
BACKGROUND
Bids for the Award of Contract for Construction of the Phase 1 Tustin Legacy Backbone
Infrastructure Project (Valencia North Loop Road, Armstrong Avenue, Landsdowne Road,
Severyns Road, and West Connector Road) (CIP No. 7139) were opened on November 16,
2004. There were two (2) bids received and the results are summarized as follows:
SEMA Construction, Inc, Lake Forest.............................................. $23,798,202.50
Sialic Contractors Corporation dba Shawnan, Downey................... $24,775,699.00
The apparent low bidder was SEMA Construction, Inc. (SEMA). However, on November 17,
2004 Sialic Contractors Corporation dba Shawnan (Shawnan) filed a bid protest stating that
SEMA was non-responsive to the bid documents because they did not list a subcontractor
that was properly licensed to handle hazardous substances and that SEMA was a non-
responsible bidder because SEMA was not properly licensed in hazardous substances to
perform the work themselves. The project specifications do state that there is a possibility
that hazardous substances may be encountered during construction.
Assistant City Attorney, Joe Forbath, a construction law specialist in the City Attorney's
office, has reviewed the bid protest by Shawnan, plus other documents submitted by
Shawnan and their attorney, and by SEMA and their attorney. SEMA had a legal duty to list
any subcontractor that would be performing work with a value of more than one-half of one
percent of the total bid price. Also, if SEMA was going to self-perform any of the work in
connection with the hazardous substances, it must hold a hazardous materials certificate,
which it did not possess at the time of the bid. After reviewing the documentation submitted
by all parties and pertinent provisions of the California Business & Professions Code and the
California Public Contract Code, it has been concluded that SEMA is responsive to the bid
specifications and is a responsible contractor, that Shawnan's bid protest should be denied,
and that SEMA be awarded a construction contract for the subject project. First, SEMA
confirmed that it will not be self-performing any of the hazardous materials removal work.
Therefore, the fact SEMA does not hold a hazardous materials certificate is not relevant
here. Also, SEMA confirmed that it will be contracting with several subcontractors to
perform this work, with none of the subcontracts having a value of more than one-half of one
percent of the total bid price. Therefore, SEMA had no obligation to list any of these
subcontractors at the time it submitted its bid to the City. Finally, a large portion of the bid
items includes trucking or hauling hazardous materials and a trucker or hauler are not
considered to be a "contractor" for the purposes of the Public Contract Code bid
requirements, therefore, SEMA had no obligation to list such entities at the time of
submitting its bid. Mr. Forbath will be available at the City Council meeting to answer any
questions.
Award of Contract for Construction of the Phase 1 Tustin Legacy Backbone Infrastructure
Project (Valencia North Loop Road, Armstrong Avenue, Landsdowne Road, Severyns
Road, and West Connector Road) (CIP No. 7139)
February 7,2005
Page 3
The bid award amount of $23,798,202.50 is approximately 0.8% lower than the engineer's
estimate of $24,000,000. The Reimbursement Agreement with Lennar Homes is sufficient
to cover the projected costs for construction. The references and the State Contractor's
License for SEMA have been checked and are appropriate for the project.
Tim D. Serlet
Director of Public Works/City Engineer
Dana R. Kasdan
Engineering Services Manger
Attachments: Location Map
November 17, 2004 bid protest by Shawnan
November 23, 2004 response letter from SEMA
November 24, 2004 letter from Shawnan's attorney, Kamine Ungerer LLP
December 20, 2004 letter from the City to SEMA
Response letter from SEMA received January 5, 2005
January 4, 2005 letter from Shawnan
January 5, 2005 fax cover sheet to SEMA
January 11, letter from SEMA's attorney, Andrade & Associates
January 20, 2005 letter from Shawnan's attorney, Kamine Ungerer LLP
TDS: DRK: cog: Phase 1 Tustin Legacy Backbone.doc
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SIalic ContradDr5 Corporation dba
SHA WNAN
State Liœnse # 679962 A/B
122'10 Woodruff Avenue, Downey, CA 90241
Phone (562) 803-9977 Fax (562) 803-9955
i-'
FAX/Mail
November 17,2004
City ofTustin
Engineering Division
300 Centennial Way
Tustin, CA 92780
Attn:
Dennis Jue
Reference:
Valencia North Loop Road and
Armstrong A venue within Tustin Legacy - Phase I
(ClF No, 7139)
Subject:
Unlicensed Contractor
Dear Mr, Jue:
Pursuant to the above referenced project, the bid submitted by the apparent low bidder, Sema Construction
lnc (Sema) is non-responsive to the bid documents. The California Contractors State License Board
requires the contractor or Subcontractors to be properly licensed to handle Hazardous Substances,
Hazardous Substance Removal may only be perfonned by a Contractor containing the HAZ Certification.
Section 7058,7, (a) States (see Attached):
No contractor shall engage in a removal or remedial action, as defined in subdivision (d),
unless the qualifier for the license has passed an approved hazardous substance
certification examination.
Neither Sema nor any of its listed subcontractors possess the required license (HAZ), Shawnan
(the second place bidder) did list an appropriately licensed subcontractor (Innovative Construction
Solutions, lnc,) to handle the hazardous material referenced in the project documentation, Proof
of Innovative Construction Solutions, lnc, license is attached for your review, Therefore, this
project should not be ed to an unlicensed Contractor, Please review this issue, and respond
to the undersi our earliest conveuience,
.
VIA F ACSIMILE/MAIL
November 23, 2004
City of Tustin
Public Works I Engineering
300 Centennial Way
Tustin, CA 92780-3715
Attn.: Dennis H. Jue
Consulting Project Manager
Re, Valencia Loop Project
CIP No, 7139
Dear Dennis,
Thank you for the telephone conversation earlier this morning. It is of great
surprise 10 learn that a protest to our bid has been filed, We fully understand thai a
bid protest is an issue between the City and the protesting bidder, however, as an
interested party to this contracl we would like to convey our position on the issues
raised by the disgruntled bidder,
Consislent with Public Contracting Code Section 3300, the "Notice to
Contractors" issued by the City requires "Every person submitting a bid must
have a Contractor's license for the work, in the classification of A, at the time of
making a bid," SEMA Construction, Inc. possesses a current and active license,
Class A, General Engineering Contractor, #657770. Our bid is therefore
responsive and in full compliance with the bid documents and Business and
Professions Code Section 7028,15.
We do not dispute the restatement of Business and Professions Code Section
7058.7(a) nor its construction. However, the disgruntled bidder has inferred an
additional requirement to the Bid Proposal that does not exist. The Bid Proposal
has no requirement to either possess a HAZ Certification, or list a subcontractor
possessing the HAZ Certification at the time of the bid. We find no requirement
under Public Contract Code Section 4104 et. seq, requiring the bidders to list
subcontractors perfonning the work requiring the HAZ Certification. Had the City
so intended, the City was fì:ee to impose and enforce its own more restrictive bid
requirements, MCM Construclion, Inc, v. Citv and Countv of San Francisco, 66
Cal. App. 4th 359, 78 Cal. Rptr.2d 44 (1998), yet chose not to do so,
Heavy and Highway
General Contractors
2 South Pointe D^
Suite 295
Lake Forest
California
92630
(949) 470-0500
Fax: (949) 829-0100
Lie 657770
At such a time as the work requiring the HAZ Certification is perfonned, SEMA
Construction, Inc, will be in full compliance with both statutory requirements and
conlract tenus, Compliance can be achieved in a variely of ways including but not
limited to:
A)
SEMA Construction obtaining a HAZ Certification.
B)
Issuing a subcontract in an amount less than one half of one
percent of the total conlract amount to a contraclor possessing a
current and active HAZ Certification.
It should be noted an assumption that the "Total Price" listed for those items
including work requiring a HAl Certification constitutes a subcontract amounl in
excess of one half of one percent is speculative. Those items are composite and
consist of work that could require the HAl Certification and work not requiring
this certification,
The unfortunate consequences of this prolest, not only delays your award of this
time sensitive contracl, but also requires us to preserve our rights and herein
request an appointment to review the bid documents submitted by Shawnan, with
reservation to prolest.
We requesl you deny the protest filed by Shawnan as without merit and proceed
with the award of this Contract to SEMA Conslruction, Inc, We are bound to our
proposal and stand ready, willing and able to execute the Contract. Please feel
free 10 conlact us should you have questions or need further assistance in
disposing oflhis matter.
Sincerely,
SEMA Construction, Inc.
//~
,?/.~/
-:;/~/
~in Abbott
General Manager
cc. Andrade
BA
KAMINE UNGERER LLP
BERNARD S, KAM'NE'
PHYLL>S UNGERER
M'LENE C" APAN>AN"
MICHAELBRENT CGLL>NGS
LAWYERS
350 50UTH FIGUEROA STREET, SUITE 250
LOS ANGELES, CALIFORNIA 90071-1102
LYNN E" HALL
DF COUNSEe
'ALSO ADM>THD 'N COLD"ADD
"ALSD ADM,nED 'N NEVADA
12'31972-0"9
FAX 12131 9720005
November 24, 2004
CITY OF TUSTIN
Engineering Division
300 Centennial Way
Tustin, California 92780
Re:
Bid Protest
Valencia North Loon Road and Armstrong Avenue
within Tustin Legacy - Phase 1 (CIP No. i139)
Our File No. 162.999
To Whom It May Concern:
This firm represents Sialic Contractors Corporation dba Shawnan ("Shawnan") on
the contract referred to above. This letter is intended to be:
I, A protest against any award of the Valencia North Loop Road and
Armstrong Avenue within Tustin Legacy - Phase 1 (CIP No. 7139) ("project")
contract to a bidder other than Shawnan.
2. A request under Gov. Code § 54954.1 for mailed notice of all meetings of
the City of Tustin at which any issues pertaining to the award of the project
contract are on the agenda. If there is any fee for this service, please telephone us
with that information immediately so we can promptly pay the fee.
3. A request to be informed (by telephone or fax) as soon as any staff
reports or recommendations concerning any issues pertaining to the award of the
project contract are available to the public so we can immediately inspect those
reports or recommendations.
4. A request to address the City of Tustin before or during consideration
of any issues pertaining to the award of the project contract, which opportunity is
guaranteed by Gov. Code § 54954.3(a).
If this letter is not sufficient to accomplish any ofthese purposes. please let us know
immediatelv what else is required so we can comnlv, If we do not hear from vou.
we will proceed on the basis that this letter is sufficient.
An award of the contract to any bidder besides Shawnan would violate the laws,
standards and practices applicable to competitive bidding on public works projects
in California, As discussed more ful1~' below, Bema Construction Inc.'f bid is
nonresponSlve, and Sema Constructjol" Inc. is not a resDonsibje bicider
City of Tustin
Engineering Division
Page No, 2
November 24, 2004
Serna's bid is nonre!!POnsive
Business & Professions Code § 7028.15 (e) requires that unless one of the following
exceptions applies (1) person is exempt from license law, (2) local agency contract
with federal funding, (3) joint venture bidder "a bid submitted to a public agency by
a contractor who is not licensed in accordance with this chapter shall be considered
nonresponsive and shall be rejected by the public agency." [boldface added]
Business & Professions Code § 7058.7(a) provides that "[n]o contractor may engage
in a re!!1f)V::,) or remedial aC'.tion, as defined in subdivision Cd), 1,mJE'SS the qualifier
for the license has passed an approved hazardous substance certification
examination."
Business & Professions Code § 7058.7(d) defines "removal or remedial action" to
include "dig[ging] into the surface of the earth and remov[ing] the dug material"
The invitation for bids for the Valencia North Loop Road and Armstrong Avenue
project (Special Provisions Section EH-4) specifically identified contaminated areas
within the project and required that the bidding contractor "obtain" and "possess all
licenses,: required for excavating, handling, monitoring and transporting
hazardous materials." It also allowed the bidder the option of hiring a
subcontractor to meet this requirement,
Serna failed to list in its bid a subcontractor with the required hazardous substance
removal certification. Consequently, under the listing law, Serna has listed itself
for this work. Serna does not possess the hazardous substance removal certification
and, accordingly, cannot do the work with its own forces under its class A license.
Therefore Serna's bid is nonresponsive and must be rejected by City of Tustin.
Serna is not responsible
Business & Professions Code § 7028.15(a) provides;
"It is a misdemeanor for any person to submit a bid to a public agency
in order to engage in the business or act in the capacity of a
contractor within this state without having a license therefor. . ."
Public Contract Code § 1103:
"Responsible bidder," as used in this part [sic, probably should
be "code"], means a bidder who has demonstrated the attribute of
trustworthiness, as well as quality, fitness, capacity, and experience
to satisfactorily perform the public works contract.
City of Tustin
Engineering Division
Page No, 3
November 24, 2004
In City of Inglewood-Los Angeles County Civic Center Authority v. Superior Court
(1972) 7 Ca1.3d 861, 867, 103 Ca1.Rptr. 689, 500 P.2d 601 the court held:
"responsible" in the context of the statute. . . includes the attribute of
trustworthiness, [and] it also has reference to the quality, fitness and
capacity of the low bidder to satisfactorily perform the proposed
work." and
"Bidder responsibility is measured by a pass-fail test, not a test of the
'rdative superiority' of ()!le bidder over another" (7 CaL3d at 867 & !l. 5
on 867-68).
In this case, Sema submitted a bid to the City of Tustin and offered to undertake the
work identified in the invitations for bid for which it was not properly
licensed/certified. By so doing, Sema violated the license and bidding laws. A
contractor who violates the license law is not trustworthy and therefore not a
responsible bidder.
Additionally, since Sema does not possess the required hazardous substance
removal ,certification required by Business and Professions Code § 7058.7, Sema is
not "fit" nor does it have the "capacity" "to satisfactorily perform" the Valencia
North Loop Road and Armstrong Avenue contract. Since Sema is NOT a
responsible bidder, the contract cannot be awarded to Sema.
The Option to Reject All Bids
Your attorney may inform you that you have the right to reject all bids and to
readvertise this project again at a later date. That step should only be taken when
"ogent and compelling reasons force you into it, As was explained over 50 years ago
in Massman Construction Co. v, U.S.D945) 102 Ct.C1. 699, 718, 60 F.supp. 635, cert.
den. 325 U.s. 866, 89 L.Ed 1985, 65 S.Ct 1403: "To have a set of bids discarded after
they are opened and each bidder has learned his competitor's price is a serious
matter, and it should not be permitted except for cogent reasons."
Conclusion
Serna's bid is nonresponsive and Serna is not responsible, Shawn an listed a
properly licensed/certified subcontractor for the removal of the hazardous
substances. Therefore Shawnan is the lowest responsible bidder and should be
awarded the contract,
City of Tustin
Engineering Division
Page No, 4
November 24, 2004
If you need any further information, please contact the undersigned.
Very truly yours,
KAMINE UNGERER LLP
¡1lq::X1 (ì ìt1l\
by Mihme C. Apanian
MCA:pk
CERTIFIED MAIL-RETURN RECEIPT NO, 7000 1670 0002 3300 2702
Public Works! Engineering
December 20, 2004
City of Tustin
Mr. Kevin Abbott, General Manager
SEMA Construction
2 South Pointe Drive, Suite 295
Lake Forest, CA 92630
300 Centennial Way
Tustin, CÞ, 92780-3715
(714) 573-3150
FAX (714) 734-8991
Re:
Valencia North Loop Road and Armstrong Avenue within Tustin Legacy - Phase I (CIP
Project No. 7139)
Dear Mr. Abbott:
As you are aware, the City of Tustin (City) received a protest from Shawnan, the apparent second
low bidder, regarding SEMA Construction's bid for the above-entitled project. We previously
forwarded to you a copy of Shawnan's bid protest letter for your review and response. The City is
continuing its investigation of this matter. Towards that end, the City seeks additional information
from SEMA concerning its bid,
The City seeks clarification from SEMA concerning work to be performed in connection with
Additive Bid Items - Bid Schedule "D", item numbers A2, A3 and A4, Please confirm in writing
the following:
1,
Does SEMA intend to use its own work forces to perform the work identified in
items A2, A3 and A4?
2,
If the answer to 1 above is no, will the same subcontractor be performing the work
identified in items A2, A3 and A4?
Please provide a response to these questions in writing to the City at your earliest convenience.
The City will not be able to complete its investigation and award this contract until the City
receives the requested information,
Thank you for your prompt attention to this matter. In the meantime, if you have any questions,
please do not hesitate to call me or Dennis Jue of my staff at 714,573.3150.
Sincerely, / §
~~r~ #~
f[a~¿¡: Kasdan C .
Engineering Services Manager
c:
Tim D. Serlet
Doug Anderson
Joe Forbath
Dennis Jue
Terry Lutz
Benny Tenkean
S:\CIP Projects - Active\7139 - Valencia N" Loop & Armstrong\Bid Process - Contract Approval\SEMA Ouestions.doc
rUST'"
City of Tustin
Public Works / Engineering
300 Centennial Way
Tustin CA 92780-3715
Attn: Dana R. Kasdan
Engineering Services Manager
Re: Valencia Loop Project CIP No. 7139
Dear Mr. Kasdan:
This letter is intended to respond to your letter of December 20, 2004. SEMA does not
intend to use its own forces to perform the work identified in items A2, A3 & A4, SEMA
will be subcontracting this work to multiple subcontractors, none of whom will be
performing work with a value in excess of one-half of one percent of the prime contract.
If you should have any further questions regarding this matler please contact me,
Sincerely,
~
T. Brett Ames
Heavy and Highway
General Contractors
7353
S, Eagle Street
Vice President
Englewood
Colorado
80112-4223
(303) 627-2fXJO
Fax: (303) 627,2626
Cc:
Dermis Jue
R. B, Andrade, Esq,
~
Sialic Contractors Corporation dba
SHA WNAN
State License # 679962 A/B
122'10 Woodruff Avenue, Downey, CA 90241
Phone (562) 803-9977 Fax (562) 803-9955
CERTIFIED MAlLIF AX
January 4, 2005
City ofTustin
Public WoIkslEngineering
300 Ceoteonial Way
Tustin, CA 92780-3715
Attn:
Dennis Jue
Reference:
Valencia North Loop Road and
Annstrong Avenue within Tustin Legacy - Phase I
(ClP No. 7139)
Subject:
Unlicensed Contractor
Dear Mr. Jue:
Shawnan has reviewed the City's letter dated December 20, 2004 and SEMA's response to the City's letter.
During Shawnan's review of Tustin's letter dated December 20, 2004, Tustin failed to request infonnation
on how SEMA planned to perform work on Bid Item AI. Bid item Al states:
Transportation & Disposal of Contaminated (Non-RCRA Hazardous) Soil, Sediment or SIUITjI
Generated during Construction Activities in Accordance with Requirements of Section EH.3-
Management, Transportation, & Disposal of Contaminated Material.
Clearly the above description of work is for the removal of "Contaminated Material." Additionally the
work in Bid Item Al is defined in Section EH of the bid Specifications. Section EH, subsection EH-3
Management, Transportation, and Disposal of Contaminated Material (Additive Bid Item Nos. AI, A2, A3,
and A4), is defined as:
This work shall consist of properly classifying, storing, treating, transporting, and disposing of
soils, slwries, sediments, groundwater, decontamination water, stonn water, and other residual
materials that coo1Bin hazardous waste or pe1roleum contaminants"
Additionally Subsection EH-3 requires the Contractor to:
.. transported and disposed in accordance with all applicable regulations.
Therefore, in accordance with CalifofiÚa Contract requirements and in order to be in compliance with the
Contract Specifications, SEMA would be required to be certified in Hazardous materials and/or have listed
a Subcontractor certified in Hazardous materials for bid items AI, A2, A3 and A4.
Furthermore, review ofSEMA's bid indicates that SEMA bid $823,500,00 for Bid items AI, A2, A3 and
A4, SEMA bid the following;
Bid Item No"
Al
A2
A3
A4
TotalItemAL A2, A3 & M
Total for Bid Item
$700,000.00
16,000.00
27,500.00
80000,00
$823,500,00
City of Tustin
Unlicemed Co-"""
Page 2
Shawnan does not understand how SEMA plans to subconttact to "multiple subcontractors, none of whom
will be peñonning work with a value in excess of one-half of one percent of the prime contract." SEMA' s
bid was for $23,789,202.50; therefore, SEMA would have to subconttact seven different subcontractors in
order to not exceed the one-half of one percent of the prime contract. Shawnan requests a list of all
Certified Subcontractors to whom SEMA plans to subconttact this work.
This appears to be a case in which the City and SEMA are working together and are attempting to skirt the
sprit of the subcontracting law. If the City intends to award this project to SEMA, then the City would be
just as guilty as SEMA in trying to skirt the intent of the law, Shawnan will file aD action against the City
if the Contract is awarded in violation of the laws of California,
In view of the above, it is clear that SEMA's bid does not met the requirements of the Bid Specification;
therefore, Shawnan should be awarded the above referenced project,
Fax
CITY OF TUSTIN
PUBLIC WORKS DEPARTMENT
300 CENTENNIAL WAY
TUSTIN, CA 92780
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ANDRADE & ASSOCIATES
A PROFESSIONAL LAW CORPORATION
CONSTRUCTION LAWYERS
RICHARD B. ANDRADEt
JEFFERY CORPORATE CENTRE
5510TRA8UCO ROAD
IRVINE, CALIFORNIA 92620-5705
TELEPHONE (949) 553-1951
FACSIMILE (949) 553-0655
E-MAIL: ANDRADE@AALAWS.COM
RONALD G. HOLBERT'
W, GREY ZIMMERMAN
BRENT A. GRANADO
KEVIN D. BLANDt"
NATALIA 0, SMITH
SHERRY A. ROSHAN
P=AM D. SAADt'"
t JD/CAUFORN>A L'CENSEO GENE'^'- CONmAC",,"
. JD/L>CENSED 'N NEVADA & """FORN>A
.. JD/L>CENSEO 'N COLORADO & CAUFORN>A
"'PROFESS'ONALENG'NE" CA, CO, UT, OR. WA,
NM&AZ
January 11,2005
n4 FACSIMILE (714) 734-8991 & u.S. MAIL
City ofTustin
Public Works / Engineering
300 Centennial Way
Tustin, California 92780-3715
Attn:
Dana R. Kasdan
Engineering Services Manager
Re:
Our Client
Project
Subject
SEMA Construction, Inc.
Valencia Loop Project CIP No. 7139
Response to Shawnan Protest
Dear Mr. Kasdan:
Please allow me to introduce myself as cOIlllSei for SEMA Construction, Inc. in regards to the
above-mentioned matter. In that capacity, I have been asked to respond to Shawnan's letter of
January 4, 2005.
In regards to Bid Item A-I, SEMA intends to utilize the services of a properly licensed
Hazardous Waste subcontractor to perform a portion of this work, the value of which is less than
one-half of one percent of the prime contract. The balance of the work in this Bid Item consists of
transporting and disposing of contaminated material encountered at the site and will be performed by
miscellaneous truckers. Although the value of the trucking portion of this Bid Item exceeds one half
of one percent of the prime contract, trucking services do not fall within the definition of
"subcontractor" and hence are not required to be listed pursuant to the Subcontractor Listing Law.
ANDRADE & AsSOCIATES
City of Tustin - Public Works/Engineering
Attn: Dana R. Kasdan
January 11,2005
Page 2
Upon execution by the CITY of a Confidentiality Agreement, SEMA is willing to show the
CITY its bid documents to support this position. SEMA's bid documents contain proprietary
information which, in the absence of a non-disclosure agreement, SEMA chooses not to disclose
until after the official award of the contract is made to SEMA. Prior to that time, there is always the
possibility that the CITY will exercise its right to reject all bids and re-advertise the project for re-
bidding.
If the CITY requires any further information in order for the CITY to determine thai SEMA' s
bid is responsive, please contact me and I will provide you with any further required information.
If you should have any further questions regarding this matter please contact me.
Sincerely,
By:
RIC B. ANDRADE
Attorneys for SEMA Construction, Inc.
cc:
B. Ames, SEMA
1. Forbath, Esq.
G:\DAT AISEMA 230051Gen 001 ICity ofTustinlResponse to City Letter 01-11-05,doc
KAMINE UNGERER LLP
BERNARD S, KAM'NE'
PHYLUS UNGERER
M'LENE C, APAN>AN"
M'CHAELBRENT COLUNGS
LAWYERS
350 SOUTH FIGUEROA STREET, SUITE 250
LOS ANGELES, CALIFORNIA 90071,,1102
LYNN E. HALL
OF COUNS",
"'SO ADMOTHD 'N COLORADO
"ALSO ADMOTHD 'N NEVADA
12>31972"0"9
FAX 12'31 9720005
January 20, 2005
Faxed to 714/734-8991
Before Mailing
Dennis Jue
CITY OF TUSTIN, Engineering Division
300 Centennial Way
Tustin, California 92780
Re:
Follow up on Bid Protest
Valencia North Loop Road and Armstrüng Averiue
within Tustin Legacy - Phase 1 (CIP No. 7139)
Our FileNo. 162,999
Dear Mr. Jue:
As you know, on November 24, 2004, Sialic Contractors Corporation dba Shawnan ("Shawnan")
protested the award of the Valencia North Loop Road and Amlstrong Avenue within Tustin Legacy
Phase 1 (CIP No. 7139) ("project") contract to a bidder other than Shawnan,
We received copies of Tustin's December 20, 2004 letter to Serna, and Serna's response. Shawnan
responded by a letter dated January 4, 2005. This letter is to follow up on Shawnan's letter.
Project bid items AI, A2, A3, and A4 describe transportation and disposal of various types of
contaminated materials, Neither Tustin, nor Serna's letter address bid item Al which includes
"Transportation & Disposal of Contaminated (Non-RCRA-Hazardous) Soil, Sediment or Slurry
Generated during Construction Activities in Accordance with Requirements of Section EH-3
Management, Transportation & Disposal of Contaminated Materials." (emphasis added)
Section EH-3 of Ihe. specifications describes the work as "properly classifying, storing, treating,
transporting, and disposing of soils, slurries, sediments, groundwater, decontamination water,
stOml water, and other residual materials that contain hazardous waste or petroleum
contaminants." (emphasis added)
Business & Professions Code § 7058.7(a) provides that "[n]o contractor may engage in a removal or
remedial action, as defined in subdivision (d), unless the qualifier for the license has passed an
approved hazardous substance certification examination." Business & Professions Code §
7058,7(d) defines "removal or remedial action" to include "dig[ging] into the surface of the earth and
remov[ing] the dug material" The work described in Bid item Al and defined in Section EH-3 clearly
falls within Business & Professions Code § 7058,7 and therefore requires a hazardous substance
removal certification,
City of Tustin, Engineering Division
Page No.2
January 20, 2005
Serna failed to list in its bid a subcontractor wilh the required hazardous substance removal certificale
for performance of bid items AI, A2, A3 or A4. The value of bid ilem AI, by itself, is in excess of
one-half of one percent of Serna's total bid for the project. Therefore, pursuant to Public Contract
Code §41O4, if Serna intended to use a subcontractor for this work, it should have listed a
subcontractor in its bid. Since Serna failed to specify a subcontractor for bid item AI, it has agreed
that it "is fully qualified to perform that portion" of the work itself, and that Serna will be
performing that portion of the work itself. (see Public Contract § 4106)
Serna's letter responding to Tustin's December 20, 2004 letter fails to explain how it expects to
perform the work under bid item AI. Serna cannot perform bid item A 1 because is does not possess
the required hazardous subslance removal certification, Serna cannot now claim that it will use a
subcontractor for the Ai work, because it listed no subcontractor. It GaÌmot now iist a subcontractor
for that work (see Public Contract Code § 4109 which only allows bringing on a new subcontractor
"in case of public emergency or necessity, and then only after a finding, , . of the awarding authority
. . . " of such an emergency or necessity,)
To reiterate, Serna's bid is nonresponsive and Serna is not a responsible bidder. Accordingly, City of
Tustin must rejecl Serna's bid, City of Tustin would be in violation of the laws, standards and
practices applicable to competitive bidding on public works projects in California if it awards the
contract to,Sema, Shawnan listed a properly licensed/certified ,subcontractor for the removal of the
hazardous, substances, Therefore Shawnan is the lowest responsible bidder and should be awarded
the contract. Please note that if the contract is awarded to Shwanan, it will agree to defend Tustin, at
ils own cost, in any writ proceedings brought by Serna,
Shawnan renews its request:
1) under Gov, Code § 54954,1 for mailed notice of all meetings of the City of Tustin at which
any issues pertaining to the award of the project contract are on the agenda. If there is any fee for
this service, please telephone us with that information immediately so we can promptly pay the fee;
2) to be informed (by telephone or fax) as soon as any staff reports or recommendalions
concerning any issues pertaining to the award of the project contract are available to the public so we
can immediately inspect those reports or recommendations, (If any of the requested information is
available over the internet, please call us the instant they are posted); and
3) to address the City of Tustin before or during consideration of any issues pertaining to the
award of the project contract, which opportunity is guaranteed by Gov. Code § 54954,3(a).
Very truly yours,
KAMINE UNGERER LLP
~~f'\
by Milene C. Apanian
MCA:pk
cc: Joseph Forbath at Woodruff. Spradlin & Smart