Resolution No. 6812234
RESOLUTION NO. 6812
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
CONCURRING WITH AND RATIFYING THE CITY ENGINEER'S
FINDINGS AND DETERMINATIONS REGARDING BID PROTESTS
SUBMITTED IN RELATION TO THE PROJECT ENTITLED "RESTROOM
AND SHADE SHELTER REPLACEMENT AT EVERGREEN PARK
PROJECT 283", WAIVER OF IRREGULARITIES IN CERTAIN BIDS
SUBMITTED THEREOF, THE NONRESPONSIVENESS OF IVL
CONTRACTORS' SUBMITTED BID; AND, THEREFORE, FINDING THAT
SENITICA CONSTRUCTION IS THE LOWEST RESPONSIBLE BIDDER
AND AWARDING SUCH PROJECT TO SENITICA CONSTRUCTION
PURSUANT TO APPLICABLE LAW AND SUCH PROJECT'S BID
DOCUMENTS.
WHEREAS, the City of Cypress issued formal bid documents to request bidders
for a project called the "RESTROOM AND SHADE SHELTER REPLACEMENT AT
EVERGREEN PARK PROJECT 283", which shall be referred to as "Project 283" in this
Resolution and such bid documents for Project 283, including all addenda, are
incorporated herein by this reference; and
WHEREAS, the City received several bids for Project 283, including a bids by IVL
Contractors and Senitica Construction; and
WHEREAS, IVL Contractors submitted the lowest bid while Senitica submitted the
second lowest bid; and
WHEREAS, the City received a bid protest from Senitica Construction relating to
the bid submitted by IVL Contractors, dated August 24, 2020, incorporated herein by this
reference, which alleges that IVL Contractors bid is nonresponsive by failing to list a
subcontractor for the installation of a fabric shade structure (as further discussed in the
bid documents for Project 283) as required by Public Contract Code Section 4104.
Senitica Construction asserts that this failure to list such subcontractor means that IVL
Contractors is statutorily required to perform the installation themselves pursuant to
Public Contractor Code Section 4106 and, therefore, this renders IVL Contractors' bid to
be nonresponsive, because the bid documents require that the fabric shade structure "be
designed, engineered, fabricated, supplied and installed by a single, State of California -
licensed fabric shade structure contractor". Senitica Construction further asserts that
waiver of this irregularity would give IVL Contractors an unfair competitive advantage,
because it would allow IVL Contractors to self -perform "the installation of the fabric shade
structure as opposed to listing one of the two required subcontractors and paying the
additional fees associated with the subcontractor's mobilization, overhead and profit"; and
WHEREAS, the City received a letter on September 18, 2020, incorporated herein
by this reference, from IVL Contractors stating that they had made a "mistake in thinking
that the listing of U.S. Shade as a supplier would also cover them as an installer" and
which letter also included the relevant information relating to the U.S. Shade as a
subcontractor (including with the cost of the work by U.S. Shade as $24,995.45) and
further requests the City to waive this as a minor irregularity ("IVL Response"); and
WHEREAS, on September 14, 2020, Senitica Construction sent a further email,
incorporated herein by this reference, to the City further asserting that the Public Contract
Code requires IVL Contractors to list U.S. Shade as a subcontractor since the work
performed by U.S. shade would be in excess of 0.5% pursuant to Public Contract Code
Section 4104 and providing a discussion of the consequences of failure to comply with
Public Contract Code Section 4104; and
WHEREAS, the City received a bid protest from PUB Construction, Inc., dated
August 21, 2020 and incorporated herein by this reference, ("PUB Protest") alleging as
follows:
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A. The bid submitted by IVL Contractors is nonresponsive, because IVL
Contractors' license number and Class 890916 does not match with the DIR Public Works
Registration Number 1000001431 and IVL Contractors did not comply with the BMP's
Checklist and Self -Certification Form (i,e., failed to respond to the Self Certification
affirming compliance with Stormwater Construction BMPs).
B. Senitica Construction failed to comply with the BMP's Checklist and Self -
Certification Form (i.e., Senetica failed to respond to the Self Certification affirming
compliance with Stormwater Construction BMPs).
WHEREAS, based upon the foregoing and the written and oral information
presented to the City Council at its meeting of October 12, 2020, (including such
information presented by City staff and members of the public), and as more particularly
described below, the City Council desires concur with and ratify the City Engineer's
findings and determinations in relation to the submitted bid protests, the waiver of
irregularities described by the PUB Protest and the nonresponsiveness of the bid
submitted by IVL Contractors; and, therefore, find that Senitica Construction is the lowest
responsible bidder and to award Project 283 to Senitica Construction, as provided further
in this Resolution.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The recitals set forth above are true and correct and incorporated
herein by this reference.
SECTION 2. Based upon the foregoing and the written and oral information
presented to the City Council at its meeting of October 12, 2020, (including such
information presented by City staff and members of the public), the City Council hereby
concurs with and ratifies the City Engineer's findings and determinations as follows:
A. The irregularities in IVL Contractors' and Senitica Construction's respective
bids identified by the PUB Protest are hereby waived, because such irregularities do not
offer either IVL Contractors or Senitica Construction an unfair competitive advantage.
Such irregularities are responding to the Self Certification affirming compliance with
Stormwater Construction BMPs which is not required until the project Pre -Construction
meeting.
B. Nevertheless, the bid submitted by IVL Contractors is nonresponsive as
follows:
(1) U.S. Shade is listed in the bid documents for Project 283 as the
manufacturer of the fabric shade structures to be used for Project 283 and IVL Contractors
has proposed to use fabric shade structures manufactured by U.S. Shade in their bid.
(2) Per the IVL Letter, IVL Contractors intends to purchase the fabric
shade structures from U.S. Shade and to utilize U.S. Shade install the fabric shade
structures. The value of the work to be performed by IVL Contractors' subcontractor, U.S.
Shade, is over 0.5% of IVL Contractors' total base bid.
(3) Public Contract Code Section 4104, therefore, requires IVL
Contractors to list U.S. Shade as a subcontractor.
(4) IVL Contractors did not list U.S. Shade as a subcontractor in their bid
on Project 283.
(5) Public Contract Code Section 4106, therefore, requires IVL
Contractors to self -perform the installation of the fabric shade structures.
(6) Sections 1.2 of Part 1 of Section 13 31 23 of APPENDIX "E" —
PRELIMINARY PLANS AND TECHNICAL SPECIFICATIONS of the formal bid
documents for Project 283 ("Section 1.2") requires as follows:
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"A single, State of California -licensed fabric shade structure contractor shall
be responsible for the design, wet -stamped engineering drawings,
permitting, fabrication, supply, and erection of the work specified herein,
including foundations. The intent of this specification is to have only one
shade contractor be responsible for all of the functions listed above."
(7) Section 1.4 of Part 1 of Section 13 31 23 of APPENDIX "E" —
PRELIMINARY PLANS AND TECHNICAL SPECIFICATIONS of the formal bid
documents for Project 283 provides a similar requirement ("Section 1.4").
(8) Section 3.1 of Part 3 of Section 13 31 23 of APPENDIX "E" —
PRELIMINARY PLANS AND TECHNICAL SPECIFICATIONS of the formal bid
documents for Project 283 ("Section 3.1") requires as follows
"The installation of fabric shade structures shall be performed by
manufacturer or manufacturer -approved contractor, which shall be bonded
and holding a current contractor's license with the State of California's
Contractors State License Board. All installation personnel must have
experience in the erection of tensioned fabric structures."
(9) The requirements of Section 1.2, Section 1.4, and Section 3.1 are
material part of the bid documents for Project 283.
(10) IVL Contractors is not approved by U.S. Shade, as the manufacturer
and supplier of the fabric shade structures, to install such fabric shade structures. •
(11) Because IVL Contractors is statutorily required to self -perform the
installation of the fabric structures, IVL Contractors' bid does not meet the requirements
of Section 1.2, Section 1.4, and Section 3.1. If IVL Contractors self -performs, then the
requirements of Section 1.2 and Section 1.4 would not be met, because the design, wet -
stamped engineering drawings, permitting, fabrication, supply, and erection of the fabric
shade structure would not be carried out by a single contractor. Further, and in any event,
IVL Contractors is not able to self -perform the installation of the fabric shade structures,
because it would be in conflict with the requirement of Section 3.1.
(12) Based upon the foregoing, IVL Contractor's bid is nonresponsive to
the requirements of the bid documents for Project 283. Any waiver of the irregularities in
this Section 2(B) would provide IVL Contractors an unfair competitive advantage and
would be a waiver of a material requirement in the bid documents for Project 283 (e.g.,
the requirement that "A single, State of California -licensed fabric shade structure
contractor shall be responsible for the design, wet -stamped engineering drawings,
permitting, fabrication, supply, and erection of the" fabric shade structure).
SECTION 3. Based upon the foregoing and the written and oral information
presented to the City Council at its meeting of October 12, 2020, (including such
information presented by City staff and members of the public), the City Council finds that
Senitica Construction is the lowest responsible bidder pursuant to applicable law and
Project 283's bid documents.
SECTION 4. Based upon the foregoing and the written and oral information
presented to the City Council at its meeting of October 12, 2020, (including such
information presented by City staff and members of the public), the City Council hereby
awards Project 283 to Senitica Construction as the lowest responsible bidder pursuant to
applicable law and Project 283's bid documents.
SECTION 5. The City Clerk shall certify to the passage and adoption of this
Resolution and enter it into the book of original Resolutions.
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PASSED, APPROVED AND ADOPTED by the City Council of the City of Cypress
at a regular meeting held on the 12th day of October 2020.
0 /
MAYOR O'HE CITY OF CYPRESS
ATTEST:
CITY ERK OF TME CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
I, Alisha Farnell, City Clerk of the City of Cypress, DO HEREBY CERTIFY that the
foregoing Resolution was duly adopted at a regular meeting of the said City Council held
on the 12th day of October 2020; by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Berry, Morales, Peat, Yarc and Johnson
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None- sE0,-(ki\iit
CI OF CYPRESS
LERK OF THE CITY