2006-04-04 5-D Submittal1047 S. Tracy Boulevard
Tracy, CA 95379
Phone; (209) 835 -9956
Fax : (209) 835 -9554
Goodland Landscape
Construction, Inc.
Laney College Adt_Suildpnrt Project
Project No. 2 15.U;2 PCICD
GLC Job No 23 -141
Field Office : Phone (510) 834 -0[3t3
F cc : 1(5110 8134 -8217
PA ArED 13Y:
ate' 5i
cc; 930
<o° 710 _Yro<"
Tat Doug Cale, Redevelopment Manager, From Wayne Tolman
City of Aiamada
(510) 749.5808 Palo.= 2' (Including Cover)
Phone (610) 749-5800
tea Nurrber. (209) 321 -2848
Mate:
03.31 -06
Rw Bid Protest, Bayport Alameda Community CC:
Building and ark Project
Ms Lore Weisiger FAX: (610) 747 -4805
Ms Dena Wortham, GLG Tracy Office
(209) 8335-9554
)0(XX Urgent D For Review X70110 Please Comment MOO( Plus Reply
We are responding to your letter defied March 29, 2000, received by mail today. Note: the letter Is
dated Marc/ 29, 2005; mailed yesterday with the notation "deliver by March 31, 2008."
1, Please provide 15 minutes on the Council Agenda, Agenda Item 5-D, April 4, 2006, for our
presentation on the subject of our Bid Protest logically, toaaowing Staff presentation, but BEFORE
Council discussion on the merits of your Recommendation to Award, Please note; our Bid Protest
Letter was received by your City Clerk, the office that received Bid Proposals. on March 9.2006;
receipt by the City of Alameda is acknowledged in your fetters of March 16 and March 29, 2008
(see Page 2 of the Staff Recommendation, Paragraph 1: »On March 13, 2006, foul days after bids
were opened, The City Clerk's Office received a formal bid protest from GoodLanD Landscape
Construction, Inc.--we believe the Bid Protest Period to be Five (5) days.)
2. Our letter of March 26, 2006 requested that the information packet to Counctt Members for their
review should include our Bid Protest Letter and subsequent correspondence. Can you tell us
Re: Agenda Item #5 -D
4 -4 -06
2'T'd BC BSGiL :01 L.T207280TS 3dUOSONU1 00U1000D:4O 14 daE;50 9002-T2 -mod
March 31, 2008
whether this information had been made avaf3ebte to Council Members for use in their
deliberations?
3. GoodLanD Landscape Construction, Inc. is disappointed that you failed to respond to any of the
information provided In our fetter of March 2a, 2008, in our continued Interest to assist your
evaluation of Bid Proposals, in terms of the preparation of your Staff Recommendation to Award.
We believe it only just that the effort that we have put into our attempt to ensure that this process
results in the best possible outcome; in the public's interest We have diligently tried to provide
information that would look at our concerns for ALL bidding contractors, as It relates to a "level
playing field" expectation and a balanced methodology for analysis of bid proposals. We will
convey this view to the Council; our efforts having thus far.
4. Our attorney Is out of the local area and cannot attend the Coursed Meeting with us. We w1Ei
examine the need for further activity upon his return and upon review of results of our presentation
before Council Members.
Please emelt your response to this FAX, and FAX your response a so, today, In order that we can
uat&ty prepare for our presentation before the Council. Goodt -arse Landscape Construction, Inc.
recommends that you reoonsider your Recommendation for Award, and that your recommend to your
Council the rejection of ALL bid proposal$; re- advertise the park construction contract, as you have the
Community Building. We repeat tins recommendation because we believe it the light thing to do.
Thank you for your consideration.
Very truiy yours,
GoodLanD Landscape Constriction, Inc.
A. Dena Wortham, President
W
Cc: Ms Cara Weislger, City Clerk, FAX (510) 747 -4a05
John W. Busby, Attorney - at-Law
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• Tel.: 209.835.9956
Fax: 209.835.9554
GoodLanD
Landscape Construction, Inc.
11S L is /�/1--
C .it 6lt.t4te„
City of Alameda
City Council Meeting
April 4, 2006
Subject: Bayport Alameda Community Building and Park Project
Letter of Bid Protest
Presentation to City Council in Protest of Recommendation of Award of Contract
GoodLanD Landscape Construction, Inc.
Wayne Tolman, Estimator /Project Manager
Tom Wortham, Vice President
Submitted by Wayne Tolman at the
4 -4 -06 Council Meeting
Re: Agenda Item #5 -D
• 1047 S. Tracy Blvd.
Tracy, CA 95376
Page 1 of 3
In a message dated 4/4/06 5:30:54 AM Pacific Daylight Time, PacificToo writes:
In a message dated 4/4/06 5:22:54 AM Pacific Daylight Time, PacificToo writes:
In a message dated 4/4/06 4:30:37 AM Pacific Daylight Time, PacificToo writes:
G'Evening Madam Mayor and City Council Members. My name is Wayne.Tolman. I
am a project manager and estimator for GoodLanD Landscape Construction, Inc.,
1047 South Tracy Blvd., Tracy, Calif. For more than these past eleven years, we
have specialized in the construction of public works park projects and school athletic
stadium projects. My personal experience comprises estimator and project
management positions in public works projects in the value range of $100k to $5
million and is almost fifty years (YOUNG) in the making. The construction industry is
a challenging but rewarding experience; you start with a plot of ground and you build
a community park for the benefit of the public.
We submitted a proposal for the construction of your Bayport Alameda Community
Building Park Project, which resulted in our Bid Protest Letter. I wish to describe the
seriousness of the Bid Protest and our position against the Staff Recommendation to
award, with a hint of humor:
But, before I begin, let us make a recommendation to your Council deliberations:
exercise your prerogative; reject all bids; deny the staff recommendation to award,
and instruct the Staff to re- advertise construction of the park project (just like they did
the Community Building portion of the project, last Friday). This recommendation will
result in a cleansing effect and remove the City from any need for continuing activity
about the evaluation and decision making process to award a contract for this
project. p�
1)1 ttk
"The ' ma before you tonite, is that you are to decide the appropriateness of a
City Staff recommendation that in the interest of ensuring "economic advantage" for
the City, declares a bid proposal that is fraught with irregularities to be in "substantial
compliance" by permitting the bidder to "revise his bid proposal after a public
opening," by his use of a declaration of "inadvertent clerical error."
This contradicts the California Public Contract Act provisions, which are designed to
protect the public interest in the bidding and the contracting of public works projects.
(insert tab one) original bid proposal (hi -lite in yellow, the trouble spots involved in
our Bid Protest Letter; include the failure to note ALL five addenda).
The City may relieve the bidder of its error, provided the error is not the result of
judgment or carelessness. Such a declaration of "clerical error" relieves the bidder
from possible economic loss and allows protection of the bidder's bond; it does not
permit the bidder to "revise his bid proposal;" and the mistake made the bid
materially different from what the bidder intended (Pub. Cont. Code, Section 5103).
A bidder may substitute out a listed subcontractor because of an "inadvertent clerical
error" on the subcontractor list if it notifies in wirting within two (2) days and the
public agency holds the required hearing (Pub. Cont. Code Section 4107.5). This
situation requires notification to a "listed subcontractor" on the original bid; it does not
apply in the event that NO Subcontractor is "listed," in our opinion.
It would be inappropriate for the City of Alameda to permit the revision of the bidder's
proposal in order to correct the "inadvertent clerical error' after the proposal has
been opened in public. Such an event would surely provide "economic advantage"
to the City of Alameda and to the bidder that does not apply to other bidders. (Valley
Crest Landscape Inc. v. City Council (City of Davis), 1996, 41 Cal. App. 4th 1432).
(Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.45h 897.)
file: / /A: \Update of presentation outline, 04- 04- 06.html 4/4/2006
Page 2 of 3
(insert tab two: original subcontractor's list; revised subcontractor's list; hi -lited in
yellow)
"Inadvertent clerical error"...the term sounds like an oxy -moron does it not?
he rejection of our Bid Protest Letter, in essence, is that the bidder's proposal is determined
o be in "substantial compliance."
at then was the necessity for the bidder to REVISE his bid proposal; this is the flaw in the
process that makes it necessary to "reserve your right to reject all bids.. ", and we recommend
hat you do.
insert tab three: Doug Cole rejection letter March 16)
'Responses to Questions in our Bid Protest Letter of March 9, 2006"
1. Database requirement for contacts of subcontractor
insert tab four: Note the emphasis in "italics;" a bidder's requirement: "[the bidder's] neglect
o fill out the form for City's collected information was not a material requirement of the bid
•ackage, but was submitted...upon request by the City... ")
. "[the bidder's] neglect to spell out its prices in the bid documentation is not a
aterial deviation from the bid package requirements." Note: bid proposal requires
he filling out of all information in order to be complete and responsive.
insert the appropriate wording from the bid proposal form instructions to bidders)
. "[the bidder's] list of subcontractors to be used in the performance of the contract has not
hanged...[the bidder] has provided clarification of the specific scopes of work to be performed
y each subcontractor listed in their bid proposal..."
insert tab 5...original subcontractor list and revised subcontractor list)
. "[the bidder] has clarified that its subcontractor, MCE Corporation, which was listed in their
•id proposal to perform asphalt, will perform grading and paving, concrete and utilities..."
insert tab 6...Section 4109, Pub Cont Code)
"[the bidder's) neglect to list the entire scope of work for their electrical subcontractor was a
lerical omission. The electrical subcontractor...listed in [the] bid proposal for the community
uilding would also be the subcontractor for the electrical scope of work in the park..."
insert tab 7....original subcontractor's list; revised subcontractor's list)
[the bidder's neglect to acknowledge ALL addenda.
insert tab 8....copy acknowledgement of four addenda; date difference; insert copy of
ddenda 5).
ity Staff has permitted the "correction and or revision" of elements included in the GoodLanD
andscape Construction, Inc. Bid Protest Letter. In doing so, in our opinion (and the opinion of
ur Attorney, who is out of the State and cannot be here tonite), the City of Alameda has
...created a competitive advantage..." for itself, and "...for one bidder over another." (see
revious legal citations).
ontracting is not analagous to a poker game. In one, you purchase chips for a right to sit at
file: / /A: \Update of presentation outline, 04- 04- 06.html 4/4/2006
Page 3 of 3
the gaming table, where you can suffer Toss through competition and bluff. In contracting,
every contractor has the right to expect that the Public Contract Act provisions will be utilized
by public agencies in the public works bidding process; that analysis and evaluation of bid
proposal forms will not provide advantage to one bidder over another; that a level playing field
will be field will exist and that the contractor's investment of resources in the preparing of his
bid estimate and bid proposal, will every time have the same possibilities of award. The
existence of bid irregularities should result in the bidder's proposal being declared as non-
responsive.
This bidder has claimed "inadvertent clerical error" in the preparation of their bid proposal.
The City of Alameda Staff has permitted this claim, but rather than relieving the bidder of his
burden and releasing his bidder's bond, they have allowed corrections and revision to the
proposal AFTER public opening and reading of the bid proposals. It is likely that other
interested bidders are NOT aware of these machinations, which in our opinion create
economic advantage.
(insert tab 9...PCC Section 4105, which says that the claim of error prevents the bidder from
re- bidding the project.)
Is it logical for a bidder that claims "inadvertent clerical error" to use that claim to "secure" the
contract; rather than to relieve his responsibility for the risk of having to perform it?
GoodLanD Landscape Construction, Inc. believes that the City of Alameda staff activities, in
permitting the bidder to "revise and extend" his
bid proposal form, exceeds their prerogative and creates economic advantage. We, therefore,
recommend that the best resolution is that the Council exercises its right to reject all bids and
direct the staff to re -bid the project. The re- configuration of the scope of work in the bid
documents, by bidding the Community Building as a separate contract (re- advertised last
week), will encourage a larger and perhaps more competititve bidder pool.
We recommend the following for your consideration is a constructive resolution of this issue:
include in the Muncipal Code a process for Bid Protests. Provide a Statement of Experience
in every bid proposal form for the benefit of analysis and evaluation of and decision making for
award for the most responsible bidder determination. Provide an ongoing educational effort
for staff about the public bid process and the requirements of the Public Contract Code.
Our Bid Protest is a logical conclusion to our investment decision to spend resources. We believe, however,
that in providing the special circumstances for the correction and revision of this bid proposal, that the decision
is as much a decision FOR one contractor, as it is AGAINST other contractors. It is for this reason that we
recommend that the Council reject all proposals and re -bid the project.
Thank you for your attention and consideration.
Wayne Tolman
file: / /A: \Update of presentation outline, 04- 04- 06.html 4/4/2006
Page 1 of 1
Public Contract Code §5103 requires a bidder within five days after the opening of bids to submit a written
notice to the agency specifying in detail how the mistake occurred. Contractor's letter did not comply with this
requirement. Although the primary purpose of the Public Contract Code is to protect taxpayers and to ensure
fairness in the bidding process, the Legislature also intended for mistaken bidders to be relieved of liability on
mistakenly low bids resulting from clerical error.
file: / /A: \PURPOSE OF PUBLIC CONTRACT ACT.html 4/4/2006
CA Codes (pcc:4100 -4114) Page 1 of 6
PUBLIC CONTRACT CODE
SECTION 4100 -4114
4100. This chapter may be cited as the "Subletting and
Subcontracting Fair Practices Act."
4101. The Legislature finds that the practices of bid shopping and
bid peddling in connection with the construction, alteration, and
repair of public improvements often result in poor quality of
material and workmanship to the detriment of the public, deprive the
public of the full benefits of fair competition among prime
contractors and subcontractors, and lead to insolvencies, loss of
wages to employees, and other evils.
4103. Nothing in this chapter limits or diminishes any rights or
remedies, either legal or equitable, which:
(a) An original or substituted subcontractor may have against the
prime contractor, his or her successors or assigns.
(b) The state or any county, city, body politic, or public agency
may have against the prime contractor, his or her successors or
assigns, including the right to take over and complete the contract.
4104. Any officer, department, board or commission taking bids for
the construction of any public work or improvement shall provide in
the specifications prepared for the work or improvement or in the
general conditions under which bids will be received for the doing of
the work incident to the public work or improvement that any person
making a bid or offer to perform the work, shall, in his or her bid
or offer, set forth:
(a) (1) The name and the location of the place of business of each
subcontractor who will perform work or labor or render service to
the prime contractor in or about the construction of the work or
improvement, or a subcontractor licensed by the State of California
who, under subcontract to the prime contractor, specially fabricates
and installs a portion of the work or improvement according to
detailed drawings contained in the plans and specifications, in an
amount in excess of one -half of 1 percent of the prime contractor's
total bid or, in the case of bids or offers for the construction of
streets or highways, including bridges, in excess of one -half of 1
percent of the prime contractor's total bid or ten thousand dollars
($10,000), whichever is greater.
(2) (A) Subject to subparagraph (B), any information requested by
the officer, department, board, or commission concerning any
subcontractor who the prime contractor is required to list under this
subdivision, other than the subcontractor's name and location of
business, may be submitted by the prime contractor up to 24 hours
after the deadline established by the officer, department, board, or
commission for receipt of bids by prime contractors.
(B) A state or local agency may implement subparagraph (A) at its
option.
(b) The portion of the work that will be done by each
file: / /A: \CA Codes (pcc4100- 4114), Pub Contract Act.htm 3/24/2006
BIDDING PRIVATE AND PUBLIC WORK § 2.02[F]
from the specifications must be rejected.85 Responsiveness is evaluated on a
case -by -case basis. Typically, the material terms of a bid are those that affect
price, quantity, quality, or delivery and those terms that the bid package clearly
identifies as mandatory.86 Moreover, an agency cannot reject a bid on the basis
of arbitrary or unwritten policies.87 A bid fails to comply materially with the bid
package if it gives the bidder a substantial economic advantage or benefit not
enjoyed by other bidders.88 A substantially conforming bid, although not strictly
responsive, may be accepted if the variants cannot have affected the amount of
the bid or given a bidder an advantage or benefit not allowed other bidders.89
However, a local agency is not required to waive insubstantial deviations from
bid requirements because the power to waive immaterial bid deviations is dis-
cretionary, not mandatory.90 A bid may be rejected as nonresponsive without a
hearing.91
The case of Menefee v. County of Fresno92 illustrates the application of the
rules concerning responsiveness and waiver of immaterial deviations. In Mene-
fee, the low bid was challenged because the bidder failed to sign the appropriate
line on the proposal sheet of its bid form, although the form was signed in other
places and was accompanied by a signed bid bond. The court upheld the award
of the contract to the low bidder. It did not matter where the bid was signed, as
long as it was signed by the appropriate parties. The court concluded that because
the bidder gained no advantage, the public agency could waive the immaterial
defect. Under the facts presented in Menefee, the court held that the low bidder
could not refuse to enter a contract based upon its failure to sign the bid form,
and thus affirmed the trial court's ruling validating the county's decision not to
consider the unsigned bid as nonresponsive.
The court in Valley Crest Landscape, Inc. v. City Council ofDavis93 applied
the analysis set forth in Menefee to overturn award of a contract to a bidder that
was permitted to recalculate the amount of work to be performed by the con-
tractor's own forces. The court concluded that the low bidder in the Valley Crest
case had an unfair advantage because it could have withdrawn its bid. Misstat-
ing the correct percentage of work to be done by a subcontractor is in the nature
of a typographical or arithmetic error. It makes the bid materially different and
is a mistake in filling out the bid; therefore, under California Public Contract
85 Stimson v. Hanley, 151 Cal. 379 (1907).
86 Pozar v. Department of Transp., 145 Cal. App. 3d 269 (1983).
37 See, e.g., Monterey Mechanical Co. v. Sacramento Reg'l County Sanitation Dist., 44 Cal.
App. 4th 1391 (1996).
88 Menefee v. County of Fresno, 163 Cal. App. 3d 1175 (1985); 471 Op. Cal. Att'y. Gen. 54
(1949).
39 See Universal By- Products v. Modesto, 43 Cal. App. 3d 145 (1974).
90 MCM Constr., Inc. v. City & County of S.F., 66 Cal. App. 4th 359 (1998), req. for depubli-
cation denied.
91 See, e.g., Educational & Recreational Servs., Inc. v. Pasadena Unified Sch. Dist., 65 Cal.
App. 3d 775 (1977).
92 163 Cal. App. 3d 1175 (1985).
93 41 Cal. App. 4th 1432 (1996).
87
r
§ 2.02[F] CALIFORNIA CONSTRUCTION LAW
Code § 5103, the low bidder could have sought relief by giving the city notice
of the mistake within five days of the bid opening. The fact that the low bidder
did not seek such relief was irrelevant. The key point was that such relief was
available and the low bidder thus had a benefit not available to the other bidders
since it could have backed out of its bid. Therefore, its mistake could not be
waived as an immaterial irregularity. Valley Crest is also noteworthy because, by
the time the case was decided, the contractor who received the award had sub-
stantially performed its contract. The court of appeal declined to consider
whether the contractor was entitled to the reasonable value of the work performed
notwithstanding the fact that the court had declared the contract void.94
[2] Bidder Responsibility
In addition to submitting a responsive bid, the contractor must be "respon-
sible." The term "responsible bidder" has been held to refer not only to trust-
worthiness but also to the quality, fitness, and capacity of the bidder to perform
the particular requirements of the proposed work satisfactorily.95 A bidder is
responsible if it can perform the contract as promised. A determination that a bid-
der is responsible is a complex matter depending, often, on information received
outside the bidding process.96 The factors that determine responsibility depend
upon the particular project; however, in general, they are those factors used as pre -
qualification criteria discussed in § 2.02[C][2], i.e., financial resources, surety and
insurance capacity, construction experience, personnel, and many others. For exam-
ple, a state agency may reject a bidder who has been disqualified from bidding on
other projects because of a violation of law or safety ordinance.97
Although public agencies have discretion to determine which bidders are
responsible, they may not, if they determine that more than one bidder is respon-
sible, make the award on the basis of relative superiority.98 To permit the award-
ing authority to reject the lowest qualified bid and award the contract to a more
qualified bidder would frustrate the purpose of competitive bidding by promot-
ing favoritism.99 Nevertheless, an awarding authority is given a great deal of dis-
cretion in determining whether a bidder is even minimally responsible. m°
94 A case decided shortly after Valley Crest involved strikingly similar circumstances but reached
a different result. See Ghilotti Constr. Co. v. City of Richmond, 45 Cal. App. 4th 897 (1996), review
denied.
95 See West v. City of Oakland, 30 Cal. App. 566 (1916); Boydston v. Napa Sanitation Dist.,
222 Cal. App. 3d 1362 (1990).
96 Taylor Bus Serv., Inc. v. San Diego Bd. of Educ., 195 Cal. App. 3d 1331 (1987).
97 Cal. Pub. Cont. Code § 10162.
98 City of Inglewood -Los Angeles County Civic Ctr. Auth. v. Superior Court, 7 Cal. 3d 861
(1972); Boydston v. Napa Sanitation Dist., 222 Cal. App. 3d 1362 (1990).
99 City of Inglewood -Los Angeles County Civic Ctr. Auth. v. Superior Court, 7 Cal. 3d 861
(1972).
19° See Raymond v. Fresno City Unified Sch. Dist., 123 Cal. App. 2d 626 (1954); R. & A.
Vending Serv., Inc. v. City of L.A., 172 Cal. App. 3d 1188 (1985).
88
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§ 2.02[F] CALIFORNIA CONSTRUCTION LAW
Failure to comply with the notice requirements constitutes a sufficient
ground, standing alone, to deny relief to a bidder.77
Although a bidder may not change its bid, if the agency refuses to allow the
contractor to withdraw its bid, the contractor must perform the work at the price
bid or forfeit its bid security. If the contractor accepts award of the contract in
spite of a mistake in its bid, it may not thereafter seek to rescind or reform the
contract.78
The contractor may file suit against the public agency to recover the amount
of any forfeited security, without interest or costs, within 90 days after the open-
ing of the bid. Actual forfeiture is not a prerequisite to filing suit.79 If the bidder
fails to recover judgment, it must pay all costs incurred by the public agency in
the suit, including attorneys' fees.80
[F] Evaluation of Bids
In order to provide all qualified bidders with a fair opportunity to enter the
bidding process, public agencies utilize standard forms, receive sealed bids
within a published deadline, and refrain from ex parte or private communications
with bidders. To maintain fairness during the evaluation process, bids must be
rejected if they are not responsive to the invitation and specifications or if a bid-
der is not responsible to perform the work. An awarding agency has a high degree
of discretion in determining the responsiveness of a bid or the responsibility of
a bidder. Moreover, the awarding agency always has the discretion to reject all
bids and readvertise or to abandon the project.81 Practical considerations, such
as delay to the project and the cost of rebidding, may be among the many fac-
tors considered in determining whether to reject all bids and rebid the project.
[1] Bid Responsiveness
To be responsive, a bid must conform to the material terms of the bid pack -
age.82 Usually, whether a bid is responsive can be determined from the face of
the bid without outside investigation or information.83 Properly worded perfor-
mance specifications, however, permit the agency to exercise discretion in deter-
mining whether a bid meets the specifications. An agency may require the bidder
to demonstrate proposed systems or submit additional information in order to
determine whether the bid meets the specifications.84 A bid that varies materially
77 See A &A Elec., Inc. v. City of King, 54 Cal. App. 3d 457 (1976).
78 See Lemorge Elec. v. County of San Mateo, 46 Cal. 2d 659 (1956).
79 Ballret Bros. Constr. v. Regents of the Univ. of Cal., 80 Cal. App. 3d 321 (1978).
80 Cal. Pub. Cont. Code §§ 5101, 5102.
81 Charles L. Harney, Inc. v. Durkee, 107 Cal. App. 2d 803 (1962).
82 Menefee v. County of Fresno, 163 Cal. App. 3d 1175 (1985); Southern Check Exch. v. San
Diego, 5 Cal. App. 3d 81 (1970).
83 MCM Constr., Inc. v. City & County of S.F., 66 Cal. App. 4th 359 (1998), req. for depubli-
cation denied.
84 See, e.g., National Identification Sys., Inc. v. State Bd. of Control, 11 Cal. App. 4th 1446
(1992).
86
WAIS Document Retrieval
CALIFORNIA CODES
PUBLIC CONTRACT CODE
SECTION 5100 -5110
Page 1 of 3
5100. (a) "Public entity" means the state, Regents of the
University of California, a county, city and county, city, district,
public authority, public agency, and any other political subdivision
or public corporation in the state.
(b) "Bid" means any proposal submitted to a public entity in
competitive bidding for the construction, alteration, repair, or
improvement of any structure, building, road or other improvement of
any kind.
5101. (a) A bidder shall not be relieved of the bid unless by
consent of the awarding authority nor shall any change be made in the
bid because of mistake, but the bidder may bring an action against
the public entity in a court of competent jurisdiction in the county
in which the bids were opened for the recovery of the amount
forfeited, without interest or costs. If the plaintiff fails to
recover judgment, the plaintiff shall pay all costs incurred by the
public entity in the suit, including a reasonable attorney's fee to
be fixed by the court.
(b) If an awarding authority for the state consents to relieve a
bidder of a bid because of mistake, the authority shall prepare a
report in writing to document the facts establishing the existence of
each element required by Section 5103. The report shall be
available for inspection as a public record. In the case of the
University of California or a California State University, the report
shall be filed with the regents and the trustees, respectively, and
shall be available as a public record.
5102. The complaint shall be filed, and summons served on the
director of the department or the chief of the division or other head
of the public entity under which the work is to be performed or an
appearance made, within 90 days after the opening of the bid;
otherwise, the action shall be dismissed.
5103. The bidder shall establish to the satisfaction of the court
that:
(a) A mistake was made.
(b) He or she gave the public entity written notice within five
working days, excluding Saturdays, Sundays, and state holidays, after
the opening of the bids of the mistake, specifying in the notice in
detail how the mistake occurred.
(c) The mistake made the bid materially different than he or she
intended it to be.
(d) The mistake was made in filling out the bid and not due to
error in judgment or to carelessness in inspecting the site of the
work, or in reading the plans or specifications.
ge,
http : / /www. leginfo . ca. gov /cgi- bin/wai sgate? WAI S do cID= 0002 9 818 65 9 +0 +0 +0 & W AI S ac ... 1/11/2006
0 e1IL 0y. 0000 L-1-11111-/ LfJ VvI ,11 ..1.1,0,
City of Alameda California
March 16, 2006
Ms. Dena Wortham, President
Goodland Landscape Construction, Inc.
1047 S. Tracy Blvd.
Tracy, CA 95376
Subject: Bid Protest - Bayport Alameda Community Building and Park Project
Dear Ms. Wortham:
The City Clerk has Forwarded to me your letters dated March 9th and March 13'x'
regarding the above referenced bid protest. As one of the three bidders you are
aware that the bid opening date for the Bayport Alameda Community Building and
Park Project was March 9, 2006 at 2:00 p.m. We would like to thank you for your
interest in bidding on the project.
We have thoroughly reviewed Goodland's bid protest against its proposal, the
proposal of the apparent lowest bidder. past Bay Construction Company, and the
City's requirements set forth in the bid package. This letter will also respond to
the matters set forth in your bid. protest.
Responses to Questions in your Letter of March 9, 2006:
1. Although there are no federal or state funds involved in this project which
would trigger the DBE requirement, the City collected DBE information
through its Bid procedure by requiring each contractor to fill out a form,
supplied by the City, listing the name, address and phone number of the
prime contractor and any subcontractors, and circling "Yes" or "No" on the
form as to whether the identified party was certified as DBE. Filling out
the form did not require any additional efforts by the prime contractor, as
the name, address and phone numbers for each subcontractor was already
known to the prime contractor, and each subcontractor could easily identify
whether or not they were certified as DBE. While Goodland filled out the
form for itself and each of its subcontractors, East Bay Construction
Company filled out the form for itself only. It is notable that none of the
primes or subcontractors for either Goodland or East Bay Construction
Company arc certified DBE. East Bay Construction's neglect to fill out the
form for City's collected information was not a material requirement of the
Development Services Department
Alameda Point Main Office
950 West Mali Square.,
Alameda, CA 94591.755
510 749.5800 • ±qx1 749.5809 • TDD 510 522.7538
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Ms. Dena Worsham ..1► arch 16, 2006
Page 2 of 3
bid package, but was submitted by East Bay Constriction upon request by :
the City. And the minimal effort used by either bidder to fill out t ie form
does not create a competitive advantage for one bidder over a eother
2. East Bay Construction Company's neglect to spell out its prices=in:the bitl
documents is not a material deviation from the bid package r uirements.
The prices set forth in its bid were internally consistent and rated so that.
there is no error in the bid, The lump sum amounts listed on MO 9 of 21
to 10 of 21 matched exactly the lump sum amounts, which werealso
written out on pages 13 of 21 through 15 of 21. The omission: as a
clerical error and the deviation from the form requirements does:not create
a competitive advantage for one bidder over another.
3. Concerning your question about the listing of trade specialties Bas
Construction Company's list of subcontractors to be used in the
performance of the contract has not changed. Bast Bay Conatradtton
Company has provided clarification of the specific scopes of*Ott to:be
performed by each subcontractor listed in their bid proposal;
East Bay Construction Company is in substantial compliance of *rebid
documents.
4. Regarding the appropriate license classification for, this project i te:b riding
requirements specified either a class A or class B license. 1 'ad:.Gdodland
or any bidder wished to take issue or seek clarification about :bcconrns
of the class "B" license it could have addressed this mattcr prior to tl
March 19` cut -off for questions as stated in Addendum No 4.whlch: Was .
issued on February 24t. Staff had not received questions from fro060.01and
or any other bidder regarding this matter prior to the cut-offil*,..14ast Bay
Construction Company's has clarified that its subcontractor, Mme.:.:
Corporation, which was listed in their bid proposal to perforrnasp alt; will
perform grading and paving, concrete and utilities. MCE holds Oheis: "A ",
"C -8" and "C-I2" Licenses. Pursuant to California State Licensing Board,
class "A" license contractors are allowed to install Utilities.. As=a: r ult,
this clarification does not constitute a material change from the bidding
requirements.
Response to your Letter of March 13. 2006:
1. .East Bay Construction Company's neglect to list the entire scope:oofwork
for their electrical subcontractor was a dental omission. 'fire elrical
subcontractor that East Bay Construction Company listed in:thef.bid..
.7eFIL 6y. UUUULHIVU L!A IUIVAI .lIV1�,
•
Ms. Delta Wortham
Page 3 of 3
lurch 15; 2
proposal for the eomrnunity building would also be the subeOntra0orlor
the electrical scope of work in the park. East Bay Constructi0fl con Y's
electrical subcontractor, Livermore's Electric, has a class "C410". ieense.
In summary, and after review with the City Attorney Office, we have eon cluded
that the apparent lowest bidder's bid proposal is in substantial comph .e=
Because you requested a copy of the apparent lowest bidder's bid prOPOial,
Which
was faxed to your office on March 13th, I am attaching a copy of the::**Ferti
lowest bidder's March 13th follow-up information. M a result of ont firodoo, . .
staff will be going to City Council on April 4th, to recommend awardefthe:prp3ect
to East Bay Construction Company, as the apparent lowest bidder.
The location of the April 4th City of Alameda City Council Meeting"is 63:.Santa:
Clara Avenue. The meeting will begin at 7:30 p.m. and will be held :in:' ity.::
Council Chambers in City Hall. if you wish to present your bid prot:,before the
City Council, please advise immediately so that the City Clerk may wwlieditle a
hearing for this purpose on April
If you have any further questions, please feel free to contact me at (510:M-5921 .
Sinc
ouglas H. * le
Redevelopment Manager
Cc: Lara Weisiger, City Clerk's Office
Teresa Highsmith, City Attorney's Office
Leslie Little, Development Services Director
Dale Lillard, Recreation and Parks Director
CITY OF ALAMEDA
BIDDERS LIST
All bidders /proposers are required to provide the following information for all DBE and non-
DBE contractors, who provided a proposal, bid, quote, or were contacted by the proposed
prime. This information is also required from the proposed prime contractor, and must be
submitted with their bid/proposal. The City of Alameda will use this information to maintain
and update a Bidders List to assist in the overall annual goal setting process.
Firm Name:
Address:
Phone:
Fax:
Contact
Person: No. of Years in Business:
Is the firm currently certified as DBE under the new regulations (49 CFR Part 26)? Yes No
Type
of work/services /materials provided by firm:
What was your firm's Gross Annual receipts for last year?
Less than $1 Million
Less than $5 Million
Less than $10 Million
Less than $15 Million
More than $15 Million
This form can be duplicated if necessary to report all bidders (DBE's and non - DBE's)
information.
Page 20 of 21
Bayport Alameda Community Building and Park Project
,odes (pcc:4100 -4114) Page 2 of 6
subcontractor under this act. The prime contractor shall list only
one subcontractor for each portion as is defined by the
contractor in his or her bid. nikLYPIDni3y:
at e:
4104.5. (a) The officer, department, board, or commission taking
bids for construction of any public work or improvement shall specify
in the bid invitation and public notice the place the bids of the
prime contractors are to be received and the time by which they shall
be received. The date and time shall be extended by no less than 72
hours if the officer, department, board, or commission issues any
material changes, additions, or deletions to the invitation later
than 72 hours prior to the bid closing. Any bids received after the
time specified in the notice or any extension due to material changes
shall be returned unopened.
(b) As used in this section, the term "material change" means a
change with a substantial cost impact on the total bid as determined
by the awarding agency.
(c) As used in this section, the term "bid invitation" shall
include any documents issued to prime contractors that contain
descriptions of the work to be bid or the content, form, or manner of
submission of bids by bidders.
4105. Circumvention by a general contractor who bids as a prime
contractor of the requirement under Section 4104 for him or her to
list his or her subcontractors, by the device of listing another
contractor who will in turn sublet portions constituting the majority
of the work covered by the prime contract, shall be considered a
violation of this chapter and shall subject that prime contractor to
the penalties set forth in Sections 4110 and 4111.
If a prime contractor fails to specify a subcontractor or if
a prime contractor specifies more than one subcontractor for the same
portion of work to be performed under the contract in excess of
one -half of 1 percent of the prime contractor's total bid, the prime
contractor agrees that he or she is fully qualified to perform that
portion himself or herself, and that the prime contractor shall
perform that portion himself or herself.
If after award of contract, the prime contractor subcontracts,
except as provided for in Sections 4107 or 4109, any such portion of
the work, the prime contractor shall be subject to the penalties
named in Section 4111.
4107. A prime contractor whose bid is accepted may not:
(a) Substitute a person as subcontractor in place of the
subcontractor listed in the original bid, except that the awarding
authority, or its duly authorized officer, may, except as otherwise
provided in Section 4107.5, consent to the substitution of another
person as a subcontractor in any of the following situations:
(1) When the subcontractor listed in the bid, after having had a
reasonable opportunity to do so, fails or refuses to execute a
written contract for the scope of work specified in the subcontractor'
s bid and at the price specified in the subcontractor's bid, when
that written contract, based upon the general terms, conditions,
file: / /A: \CA Codes (ncc4 1 00- 4 1 1 41. Pub Contract Act.htm 3 /24/2006
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MAR-13-2006 MON 0200 PM CITY OF ALAMEDA DSD
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,des (pcc:4100 -4114) Page 5 of 6
4 (commencing with Section 3179) of Title 15 of Part 4 of Division 3
of the Civil Code.
4108. (a) It shall be the responsibility of each subcontractor
submitting bids to a prime contractor to be prepared to submit a
faithful performance and payment bond or bonds if so requested by the
prime contractor.
(b) In the event any subcontractor submitting a bid to a prime
contractor does not, upon the request of the prime contractor and at
the expense of the prime contractor at the established charge or
premium therefor, furnish to the prime contractor a bond or bonds
issued by an admitted surety wherein the prime contractor shall be
named the obligee, guaranteeing prompt and faithful performance of
the subcontract and the payment of all claims for labor and materials
furnished or used in and about the work to be done and performed
under the subcontract, the prime contractor may reject the bid and
make a substitution of another subcontractor subject to Section 4107.
(c) (1) The bond or bonds may be required under this section only
if the prime contractor in his or her written or published request
for subbids clearly specifies the amount and requirements of the bond
or bonds.
(2) If the expense of the bond or bonds required under this
section is to be borne by the subcontractor, that requirement shall
also be specified in the prime contractor's written or published
request for subbids.
(3) The prime contractor's failure to specify bond requirements,
in accordance with this subdivision, in the written or published
request for subbids shall preclude the prime contractor from imposing
bond requirements under this section.
4109. Subletting or subcontracting of any portion of the work in
excess of one -half of 1 percent of the prime contractor's total bid
as to which no subcontractor was designated in the original bid shall
only be permitted in cases of public emergency or necessity, and
then only after a finding reduced to writing as a public record of
the awarding authority setting forth the facts constituting the
emergency or necessity.
4110. A prime contractor violating any of the provisions of this
chapter violates his or her contract and the awarding authority may
exercise the option, in its own discretion, of (1) canceling his or
her contract or (2) assessing the prime contractor a penalty in an
amount of not more than 10 percent of the amount of the subcontract
involved, and this penalty shall be deposited in the fund out of
which the prime contract is awarded. In any proceedings under this
section the prime contractor shall be entitled to a public hearing
and to five days' notice of the time and place thereof.
4111. Violation of this chapter by a licensee under Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code constitutes grounds for disciplinary action by the
file: / /A: \CA Codes (pcc4100- 4114), Pub Contract Act.htm 3/24/2006
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Cole
FROM:
Sixia Hughey
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City <if .4.1544.ie<la
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TOTAL NO. OF FACES INCLUDLNO 001/!i
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SENDtieS EMAIL ADORES:
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Buildinik-Park
Tsrvu-sv.eastbityconstructica_aer
XttROENT OR REVIEW 0 PLEASE C0144MIT 0 PLEASE REPLY
Doug,
•
. • Folicesmtp:pgplur discussion on 3/10/06 please find attached omissions 1 assure you, ix was a
clericl .error pn, my part. The bids on file clearly state scope of w-ork to be performed and 1
havecogisOettpage 17 of 21 to reflect work to be done by suh,contractors. I have also attadaeci
• page.!:, XEIith the a.mount spelled out aim with page 20 for each sub-routractor.
Sincerely, .
SLoa c. thoey,
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Codes (pcc:4100 -4114) Page 5 of 6
4 (commencing with Section 3179) of Title 15 of Part 4 of Division 3
of the Civil Code.
4108. (a) It shall be the responsibility of each subcontractor
submitting bids to a prime contractor to be prepared to submit a
faithful performance and payment bond or bonds if so requested by the
prime contractor.
(b) In the event any subcontractor submitting a bid to a prime
contractor does not, upon the request of the prime contractor and at
the expense of the prime contractor at the established charge or
premium therefor, furnish to the prime contractor a bond or bonds
issued by an admitted surety wherein the prime contractor shall be
named the obligee, guaranteeing prompt and faithful performance of
the subcontract and the payment of all claims for labor and materials
furnished or used in and about the work to be done and performed
under the subcontract, the prime contractor may reject the bid and
make a substitution of another subcontractor subject to Section 4107.
(c) (1) The bond or bonds may be required under this section only
if the prime contractor in his or her written or published request
for subbids clearly specifies the amount and requirements of the bond
or bonds.
(2) If the expense of the bond or bonds required under this
section is to be borne by the subcontractor, that requirement shall
also be specified in the prime contractor's written or published
request for subbids.
(3) The prime contractor's failure to specify bond requirements,
in accordance with this subdivision, in the written or published
request for subbids shall preclude the prime contractor from imposing
bond requirements under this section.
4109. Subletting or subcontracting of any portion of the work in
excess of one -half of 1 percent of the prime contractor's total bid
as to which no subcontractor was designated in the original bid shall
only be permitted in cases of public emergency or necessity, and
then only after a finding reduced to writing as a public record of
the awarding authority setting forth the facts constituting the
emergency or necessity.
4110. A prime contractor violating any of the provisions of this
chapter violates his or her contract and the awarding authority may
exercise the option, in its own discretion, of (1) canceling his or
her contract or (2) assessing the prime contractor a penalty in an
amount of not more than 10 percent of the amount of the subcontract
involved, and this penalty shall be deposited in the fund out of
which the prime contract is awarded. In any proceedings under this
section the prime contractor shall be entitled to a public hearing
and to five days' notice of the time and place thereof.
4111. Violation of this chapter by a licensee under Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code constitutes grounds for disciplinary action by the
file: / /A: \CA Codes (pcc4100- 4114), Pub Contract Act.htm 3/24/2006
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contract, the City Clerk will return the proposal guaranties accompanying the proposals which are
not to be considered in making the award. All other proposal guaranties will be held until the
contract has been finally executed, after which they will be returned to the respective bidders whose
proposals they accompany.
ES. Bids
I. SUBCONTRAC
Subcontracting Fair P
California. A copy
made a part of t
shall accom
Subcon
st include all State and Federal taxes applicable to the transaction.
ORS. All contractors shall comply with the State Subletting and
actices Act, found in Section 4100 through 4112, Government Code of
f said Act is available in the office of the City Engineer. Said Act is hereby
specifications on the above - mentioned job and all contractors submitting bids
y the bid with information regarding subcontractors as therein provided. All
tors shall have a current City of Alameda business license.
J. REJECTION OR RETURN OF PROPOSALS. Proposals may be rejected if they show any
alterations of form, additions not called for, conditional or alternative bids, uncompleted bids,
erasures or irregularities of any kind. The right is reserved to reject any and all proposals. The City
reserves the right to return bids unopened.
K. AWARD OF CONTRACT. The award of contract, if it is to be awarded, will be to the
responsible bidder who submits the lowest and best bid and whose proposal complies with all
requirements described. The award, if made, will be made within sixty (60) days after the opening
of the bids. All bids will be compared on the basis of the Engineer's estimate of quantities of work
to be done. This contract may be mutually extended on a year -by -year basis, for up to four (4)
additional years, based on satisfactory performance of all aspects of this contract. The Public Works
Director shall, on or before April 1, submit written notice that the contract is to be extended at the
same terms and costs (plus an annual increase to consumer price index for the San Francisco Bay
Area appropriate to the trades associated with the work for the previous calendar year) as the
existing contract.
e
s L. EXECUTION OF CONTRACT. The contract, in form and content satisfactory to the City,
1 shall be executed by the successful bidder and returned, together with the contract bonds and
s compensation and public liability policies or certificates, within two (2) days, not including Sundays
f and legal holidays, after the Bidder has received notice that the contract has been awarded. No
1 proposal shall be considered binding upon the City until the execution of the contract.
1 In order to assure that the contractor has adequate time to obtain the relevant bonds and
insurances, the apparent low bidder will be notified about the intent to award one week prior to
award of contract by the City Council.
Failure to execute a contract and file acceptable bonds as provided herein within two (2)
days, not including Sundays and legal holidays, after the Bidder has received notice that the contract
has been awarded, shall be just cause for the annulment of the award and the forfeiture guaranty. ure of the
BAYPORT ALAMEDA COMMUNITY BUILDING AND PARK
Category I Page # 7 of 46 - Bid Issue 2/1/06
1
1
§ 2.02[D] CALIFORNIA CONSTRUCTION LAW
[D] Submission of Bids
Under competitive bidding rules, regardless of whether prequalification is
used, the bid or price proposal must be delivered, under seal, on time, to the exact
location listed in the bid package. Under most statutory, code, and charter pro-
visions, the public entity cannot receive or consider any late bids.55
[1] Security
Most bids for public works contracts must include bid security, either in the
form of cash, cashier's check, certified check, or a bid bond issued by an ap-
proved surety in the amount of 10 percent of the bid.56 The bond guarantees that
the bidder will sign the contract for the amount stated in its bid. Failure to pro-
vide bid security may result in rejection of the bid for nonresponsiveness.
[2] Subcontractor Listing Law
The Subletting and Subcontracting Fair Practices Act (the "Act ") requires
prime contractors to designate, in their bids, the names and addresses of each
subcontractor who will perform work the value of which exceeds one -half of 1
percent of the prime contractor's total bid or, in the cases of construction of
streets/highways and bridges, work the value of which exceeds one -half of 1 per-
cent of the total bid or $10,000, whichever is greater. The Act is designed to pre-
vent bid shopping and bid peddling that take place after award of the prime
contract. In implementing the Act, a variety of local agencies have required prime
contractors to provide additional information at the time of bid, not expressly
required by the statute. Such information includes the subcontractor's address,
telephone and fax number(s), contact person, license number, license expiration
date, etc. The detailed bid information required by the Act, coupled with the com-
mon practice of local agencies to require additional detailed information about
subcontractors, often creates confusion at the hectic bid deadline. Not surpris-
ingly, the statutory and local agency requirements have fueled countless bid
protests over the years.57
In response to increasingly complicated local requirements and case law,
California Public Contract Code § 4104 was amended in 1998 to provide that a
public entity, at its option, may permit any subcontractor information, other than
the name and location of the business, to be submitted up to 24 hours after the
deadline for bids.58 If the public entity makes a material change in the bid spec-
ifications (i.e., a change with substantial cost impact) less than 72 hours before
5' See, e.g., Cal. Pub. Cont. Code §§ 10167, 10168.
56 See, e.g., id. §§ 10167, 20129.
57 See, e.g., MCM Constr., Inc. v. City & County of S.F., 66 Cal. App. 4th 359 (1998), req. for
depublication denied; Valley Crest Landscape, Inc. v. City Council, 41 Cal. App. 4th 1432 (1996);
Ghilotti Constr. Co. v. City of Richmond, 45 Cal. App. 4th 897 (1996).
5s See Cal. Pub. Cont. Code § 4104(a)(2)(A).
82
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BIDDING PRIVATE AND PUBLIC WORK § 2.02[D]
the bid deadline, the deadline must be extended to no less than 72 hours from
the original or current approved deadline for bid submitta1.59 The prime con-
tractor whose bid is accepted by the public entity is ordinarily prohibited from
substituting any person or entity as a subcontractor in place of those listed in its
original bid. However, there are eight specific instances in which the awarding
entity may consent to the substitution of a subcontractor:
(1)
(2)
(3)
when the subcontractor listed in the bid, after having had a reasonable
opportunity to do so, fails or refuses to execute a written contract, when
that written contract, based upon the general terms, conditions, plans and
specifications for the project involved or the terms of that subcontractor's
written bid, is presented to the subcontractor by the prime contractor;
when the listed subcontractor becomes bankrupt or insolvent;
when the listed subcontractor fails or refuses to perform his or her sub-
contract;
(4) when the listed subcontractor fails or refuses to meet the bond require-
ments of the prime contractor as set forth in section 4108;
when the subcontractor was listed as the result of an inadvertent cleri-
cal error;
(6) when the listed subcontractor is not licensed pursuant to the Contrac-
tor's License law;
when the awarding authority, or its duly authorized officer, determines
that the work performed by the listed subcontractor is substantially
unsatisfactory and not in substantial accordance with the plans and
specifications, or that the subcontractor is substantially delaying or dis-
rupting the progress of the work; and
when the listed subcontractor is ineligible to work on public works proj-
ects pursuant to § 1777.1 or 1777.7 of the Labor Code (dealing with
subcontractors who have defrauded their apprentices with respect to
wages).6°
(5)
(7)
(8)
If such a substitution is proposed, the listed subcontractor is entitled to
receive notice of the requested substitution and the reasons for it. If the listed sub-
contractor objects to the substitution, it has five working days to submit written
objections. Failure to file written objections shall constitute the listed subcon-
tractor's consent to the substitution. If written objections are filed, the authority
must hold a hearing and provide the listed subcontractor written notice at least
five working days prior to the hearing.61 The courts have identified an implied
procedure requiring the agency not only to consent to substitution of the listed
subcontractor but also to approve the replacement subcontractor.62
S9 See id. § 4104.5.
GO Id. § 4107(a)(1) —(8).
G! Id. § 4107(a).
62 E. F. Brady Co. v. M. H. Golden Co., 58 Cal. App. 4th 182 (1997).
83
§ 2.02[D] CALIFORNIA CONSTRUCTION LAW
If a prime contractor asserts a claim of inadvertent clerical error, it must
give, within two days after the bid opening, written notice of its claim to the
awarding public entity, with copies to the subcontractor involved. Courts have
permitted contractors to substantially comply with the notice by alternate means.63
The subcontractor then has six working days from the opening of the prime bids
within which to submit to the awarding public entity any written objection to the
prime contractor's claim of clerical error.64 In Cal -Air Conditioning, Inc. v. M.P.
Allen General Contractors,65 the court of appeal applied the doctrine of sub-
stantial compliance to a prime contractor's obligation, under California Public
Contract Code § 4107.5, to provide written notice to a subcontractor of the prime
contractor's claim of inadvertent clerical error in listing that subcontractor in a
successful bid on a public works project. A listed subcontractor has a cause of
action against the prime contractor for any damages (including lost profits)
resulting when the prime contractor unlawfully substitutes a subcontractor.66
Moreover, an illegally substituted subcontract is itself unenforceable. Thus, a
prime contractor who has unlawfully substituted a subcontractor may not there-
after file suit against the substituted subcontractor.67
Any failure to specify a subcontractor will be interpreted to indicate the
prime contractor's intent to perform the work with its own forces.68 A prime con-
tractor does not breach the statute and is not required to request permission from
the awarding agency to perform work itself when a listed subcontractor refuses
to perform the work after having a reasonable opportunity to do so.69 If a bidding
prime contractor fails to comply with the subcontractor listing law, the awarding
public entity may either cancel its contract or assess a monetary penalty not
exceeding 10 percent of the subcontract price.70 Moreover, any violation of the
subcontractor listing law may be cause for disciplinary action by the Contractors
State License Board.71
[3] Non - collusion Affidavit
Each public works contract must include a non - collusion affidavit signed
and submitted with the bid swearing, among other things, that the bid is not made
on behalf of any undisclosed person, that the bid is not collusive or sham, that
the bidder has not solicited or conspired with any other bidder to submit a false
63 Cal -Air Conditioning, Inc. v. Auburn Union Sch. Dist., 21 Cal. App. 4th 65 (1993).
64 Cal. Pub. Cont. Code § 4107.5.
65 21 Cal. App. 4th 655 (1993).
66 See Southern Cal. Acoustics Co. v. C.V. Holder, Inc., 71 Cal. 2d 719 (1969); Coast Pump
Ass'n v. Stephen Tyler Corp., 62 Cal. App. 3d 421 (1976); C.L. Smith Co. v. Roger Ducharme,
Inc., 65 Cal. App. 3d 735 (1977); Interior Sys., Inc. v. Del E. Webb Corp., 121 Cal. App. 3d 312
(1981).
67 See Kiely Corp. v. H.C. Gibson, 231 Cal. App. 2d 39 (1964).
68 See Cal. Pub. Cont. Code § 4106.
69W. J. Lewis Corp. v. Harper Constr. Co., 116 Cal. App. 3d 27 (1981).
70 See Cal. Pub. Cont. Code § 4111.
71 See id. § 4107.
84
BID
bid
ing
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ment
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72 Cal. Pt
73 See, e.l
74 Id. § 5
75 M. F. IC
v. Kastorf, 5.
76 Cal. Pu
ent by : UOUULANU LIi ON6 I .1N; 2U9tiiit)Ub4 ;
tIVAT a/ 4.14U 111 V111 vr muintum
(4)
Apr-d-uo 12:4drIVI;
NiX NU, 510 749 580a.
The teaming applies to "Section XVI, BIDDER'S PROPOSAL
•
Attached is the revised Bidder's Proposal, which supercodes outtroly REMIT
BIDDERS PROPOSAL FORA pages 19 through 22 or 67. Bidders are to
attached Revised Bidder's Proposal (�r their Bid.
Do agt use Bidder's Proposal Winded in the Preect
0
Face /f19
P;*08
Reocipt is hereby acknowledged of 4 ol dated Feb 20, 2006, Addend401140. 2 dated
Feb 22, 2006, Addendum No. 3 dated Fc .17 006, and Addendum No. 4 dated- el, 24. 2006
No
for the Bayport Alameda Corm:amity Building and Park Project. 5 M
'415c.A.,g41
By sipting below, it is hereby acknowledged that all subcontraciots and •SOPpliezcs
acknowledged receipt of the entire bid package including drawings, specifications? . aad ali
addenda. It is the bidder's responsibility to asame that all drawings, specifications, .
have been received whether reviewed in segments or in total and/or if viewed electronically at
the City's website, in hard copy form, or by any other means.
‘esrl' fiew
Company Name/Contractor
By:
Date:
3ierg° 41111"Aimilio.
NOTE: TiUS SHEET ADDENDUP4 RECIEPT CONFIRMATION r MUST -DE
SIGNED, DATED, MUST BE RETURNED WITh YOUR RID. • .
Attachments
cc: City Cklic
B o o m C o g e n o n l t y B u l i d i r s o a t P C 0
Alanders 144A, %* b24 21164
Page 13 all.
• : • • • •■ 1
(f T
befit by: UUUULAIVU L/b UUIVbI .1Nl,j
CV�tldUU3U4�
March 3, 2006
TO All Bidders
FROM LPA, Inc.
PROJECT Bayport Alameda Communit
Alameda Unified School Districct Tiding &Park
PROJECT NO. 23042 72
£ SA NO. 01- 107709
FILE NO, 1 -1
SUBJECT Addendum No. 5
This Addendum forms a part of the Contract and modifies the original bidding documents dated 02 FebrWary .
2006. It Is intended that ail work affected by the following modifications shall conform to related provisions
and General Conditions of the Contract of the original drawings and specifications. Modify the following
!terns wherever appearing in any drawings or sections of the specifications; all Other items shall remain the'
same. Contractor must acknowledge receipt of this Addendum in the space provide on the Bid Form. Failure
to do so may result in disqualification..
In case of any conflict between Drawings, Project Manual, and this Addendum, this Addendum shall govern.
PROJECT MANIA
SECTION 02730— Replace entire section
SECTION 02881
A. ADD Specification "Playground Equipment and Structures"
DRAWINGS
Sheet L2.1 Detail 11
Refer to SKL -9 for addition of manufacturer and model number,
ALIA,mgui
landicapeArak. stlytal
$ketch SKL -9
END OF ADDENDUM NO. 4
Pt,r1(1 \ /.\) o - '`- - -'il
•+:120031E3042721FIle ]8- AcidendalAddenda Rau OE NOVM NO 5.dQt
Ales (pcc:4100 -4114)
subcontractor under this act. The prime contractor shall list only
one subcontractor for each portion as is defined by the prime
contractor in his or her bid.
4104.5. (a) The officer, department, board, or commission taking
bids for construction of any public work or improvement shall specify
in the bid invitation and public notice the place the bids of the
prime contractors are to be received and the time by which they shall
be received. The date and time shall be extended by no less than 72
hours if the officer, department, board, or commission issues any
material changes, additions, or deletions to the invitation later
than 72 hours prior to the bid closing. Any bids received after the
time specified in the notice or any extension due to material changes
shall be returned unopened.
(b) As used in this section, the term "material change" means a
change with a substantial cost impact on the total bid as determined
by the awarding agency.
(c) As used in this section, the term "bid invitation" shall
include any documents issued to prime contractors that contain
descriptions of the work to be bid or the content, form, or manner of
submission of bids by bidders.
4105. Circumvention by a general contractor who bids as a prime
contractor of the requirement under Section 4104 for him or her to
list his or her subcontractors, by the device of listing another
contractor who will in turn sublet portions constituting the majority
of the work covered by the prime contract, shall be considered a
violation of this chapter and shall subject that prime contractor to
the penalties set forth in Sections 4110 and 4111.
4106. If a prime contractor fails to specify a subcontractor or if
a prime contractor specifies more than one subcontractor for the same
portion of work to be performed under the contract in excess of
one -half of 1 percent of the prime contractor's total bid, the prime
contractor agrees that he or she is fully qualified to perform that
portion himself or herself, and that the prime contractor shall
perform that portion himself or herself.
If after award of contract, the prime contractor subcontracts,
except as provided for in Sections 4107 or 4109, any such portion of
the work, the prime contractor shall be subject to the penalties
named in Section 4111.
4107. A prime contractor whose bid is accepted may not:
(a) Substitute a person as subcontractor in place of the
subcontractor listed in the original bid, except that the awarding
authority, or its duly authorized officer, may, except as otherwise
provided in Section 4107.5, consent to the substitution of another
person as a subcontractor in any of the following situations:
(1) When the subcontractor listed in the bid, after having had a
reasonable opportunity to do so, fails or refuses to execute a
written contract for the scope of work specified in the subcontractor'
s bid and at the price specified in the subcontractor's bid, when
that written contract, based upon the general terms, conditions,
Page 2 of 6
file: / /A: \CA Codes (pcc4100- 4114), Pub Contract Act.htm 3/24/2006
G V..Ua]J JJJY ,
G0OdL4IID
Landscape Construction, Inc.
N'JI - - t./ I . J'f IYI F t1 ye 1
EXPERIENCE AND REFERENCES
GoodLanD Landscape Construction, Inc. has a vast experience in Site Development and
Landscape Construction for Commercial, Industrial, and Residential Projects, working as both
General Contractor, and Subcontractor. Our Construction Experience includes Public Works
Projects, such as Community Parks, Sports Fields, and School Athletic Fields. The following is a
list of various completed projects_
PRQJECT ,A TORY
Project Name: Woodward Park
Owner: City of Manteca
Representative: Jim Podesta (209) 239 -8462
Contract Amount: $3,275,000.00
Scope of-Work: Construction of 22 acre Park, Concrete,
Irrigation, Landscape, Site Furnishings, Electrical, Asphalt
and Underground Utilities,
Project Name: Burberry Park
Owner: City of Sacramento
Representative: Roy Tatman (916) 808 -5326
Contract Amount: $ 1,120,000.00
Scope of Work: Construction of New Park, Concrete, Irrigation,
Landscape, Site Furnishings, Electrical, Asphalt, and Underground
Utilities.
Project Name: Freedom Soccer Fields
Owner: City of Oakley
Representative' Nancy Kaiser (925) 625 -7030
Contract Amount: $ 807,500.00
Scope of Work: Construction of Soccer Fields, Irrigation, Fencing,
Landscape_
Project Name: Detention Basin #5- 2OAcre Sodded Soccer Fields
Owner: City of Tracy
Representative: Paul Verma (209) 831 -4460
Contract Amount: $1,400,000.00
Scope of Work: Construction of Sodded Soccer Fields, Irrigation, Fencing,
Landscape, Top Soil Import, Parking Lot Construction.
Project Name: Garrigan Park
Owner: City of Stockton
Representative: Victor Macltaco (209) 937 -8899
Tel: 209.835.4959
Fax: 209.835.9554
• 1047 8. Tracy Blvd.
Tracy, CA 95376
ucn uy. . UUVULniry
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Project Name: Walden Park, Phase 1 and Phase 11
Owner City of Walnut Creek
Representative: Joe Sadiri, Senior Engineer, (925) 943 -5834
Contract Amount: $ 467,253,00, and $ 330,000.00 respectively
Scope of Work: Construction ofNew Community Park including a RestrooriBuilding,
Site Furnishings, Children Play Areas, and Landscape Improvements
Landscape Anhftects;
Callendar & Associates
Contact: Ben Woodside
Phone #: (916) 631 -1312
Rose Associates
Contact: Don Rose
Phone #: (925) 945 -1112
Royston, Hanamoto, Alley, & Abbey
Contact: James angles
Phone #: (415) 383 -7900
City Agencies
City of Walnut Creek
Contact: Joe Sadri
Phone #: (925) 943 -5834
City of Pleasanton
Contact: Mike Afford
Phone #: (925) 931 -5672
City of Union City
Contact: Phil Sachs
Phone #: (510) 675 -535:5
Standard Pacific of Northern California
Contact: Clay Adams
(925) 847 -8700
REFERENCES
Callendar Associates
Contract: Shawn Sekppi
Phone #: (650) 3754313
Thomas Bank Associates
Contact: Tom .Baak
Phone #: (925) 933 -25.
The Beals Group
Contact: Devin Conway, P.E.
Phone #: (408) 2874202
City of Tracy
Contact: Paul Verna
Phone #: (209) 831 -4460
City of Manteca
Contact: Jim Podesta.
(209) 239 -8462
City of Stockton
Contact: Victor Machado:
Phone # (209) 937 4899
Bright Development
Contact: Brian Sarantos
(209) 571-9451
Pedestrian/Bicycle Pathways with Lights, Scorekeepers ..:
reice�epers Boettr, and
Improvements_
Project Name: Arroyo Park
Owner city of Union City
Representative: Phil Sachs, Superintended Public Works, (510) 675-5355.: .
Contract Amount: $ 202,500.00
Scpro ts, : Construction ofNew Community Park with Play A a
Project Name: Oakland Museum Renovation, Phase 1L
Owe': City of Oakland
Representative: Al Bunyi, (510) 238 -1279
Contract Amount: $ 633,000.00
Scope of Work: Tree Demolition, Metal Trellis, and Landscape Ira n
Pte::
Project Name: Ygnstelo Valley Road Soundwslt — The Living Waif
Owner: City of Walnut Creek
Representative: Gary Gullen, (925) 943-5834
Contract Amount: $ 600,000.00
Scope of Work: Construction of a New Living Retaining Wall with Conerete, . n
Fencing and Landscape Improvements.
Project Name: Old A1varade/C Chaves PM*
Owner: City of Union City
Representative: Phil Sachs, Supc ntendent, Public Works, (510) 675 -5355
Contract Amount: $ 270,340.00
Scope of Work: Cron of a New Community Park with Site Furnishinga d
Landscape 'ova d
Project Name: Arholado Pub
Owner: City of %hint Creek
Representative: Joe Satlri, Senior Engineer, (925) 943 -5834
Contract Amount: $ 353,000.00
Scope of Work: Conitruction of a New Community Park with Play AreakS4
Furnishings, and Landscape Improvements.
Project Name: Pleyground. Renovation, Three Parks
Owner: City of Walnut Creek
Representative: Reza Mohanmredy, Engineer, (925) 943 -5834
Contract Amount: $ 489,807.00
Scope of Work: Renovation of Existing Parks with Children Play Areas, SitePtirm islumgs,
Landscape Improvements.
Project Name: Valuer 'Tralb Park Renovation
Owner. City of Pleasanton
Representative: Mike Fulford, Landscape Architect, (925) 931 -5672
Contract Amount: $ 489,500.00
Scope of Work: Renovation of an Existing Park
bent by. UUUUL,-\wu L/O uU1401.114.,,
Project Name: Mee Valley Park, Phase I
Owner: City of Walnut Creek
Representative: Chris Erdle, (925) 943 -5834
Contract Amount: $ 659,436.00
Scope of Work: Renovation and New Construction of a Community Park with extensive
Boulder Relocation work, in order to construct new Park Features, Children Play Areas,
Picnic Areas and Landscape hnprovements.
Project Nance: Owens Park
Owner: City of Pleasanton
Representative: Mike Fulford, Landscape Architect, (925) 931- 5672
Contract Amount: $ 539,337.00
Scope of Work: Construction of a New 3 Acre Community Park with Craze*v ;. Play
Areas, Picnic Areas, Multi- Purpose Grass Sports Field, and Landscape lrovements.
Project Name: Credraide Park
Owner: City of Pleasanton
Representative: Mike Fulford, Landscape Architect, (925) 931 -5672
Contract Amount: $ 1,057,000,00
Scope of Work: Construction of a New 6 Acre Community Park with Restioorn ilding,
Children Play Areas, Basketball Court, Play Wall, Multi- Purpose Grass Spdrts Field,
Pedestrian Pathway Lighting, Concrete with Metal Arbor Structures, and Landseitpe
Improvements.
Project Name: Bancroft Median 1mpravements, Phase 1f
Owner City of Oakland
Representative: Danny Lau, Project Manager, (510) 238 -7211
Contract Arnount: $1,231,060.00
Scope of Work: Renovation of Existing Median Islands with New MasoiuyPaving,
Pedestrian Ling and Landscape Improvements.
Project Name: Ddb Commnnity College
Owner: Delta Community College, Stockton
Representative: Dan Watts, (209) 954 -5580
Contract Amount: $ 290,000,00
Scope of Work: Construction of New Sand Based Soccer, Football and Baseball
Fields and Landscape Improvements
Project Name: Highland Park Phase 11
Owner: City of San Carlos
Representative: Bob Eppler, .Project Manager, (650) 802 -4397
Contract Amount: $ 626,222.00
Scope of Work: Renovation of Existing Soccer Fields, and Landscape Impto ements.
Project Nanne:.Bayside Park, Phase 1
Owner: City ofiitu1ingame
Representative: Frank Erbacher, PE, Assistant Director of Public Works, -(650) 558 -7230
Contract Amount: $ 1,816,339.00
Scope of Work: Construction ofNew Community Park including completion of (I) Sand
Baseball Field with Sports Field Lights and Bermuda Sod, Dog Park Area, ..
Jerti by; UVVULHIVU L/b I' I .IN
GVJU UJ.ii JJT �
Area. Sports Field Lighting and Landscape Improvements_
Project Name; Tracy Sports Park
Owner_ City of Tracy
Client Standard Pacific of Northern California
Representative: Norm Soares, Project Manager (925) 847 -8700
Contract Amount: $ 3,538,187.00
Scope of Work: Construction of a New 20 Acre Sports Park with (4) Softball-Fields, (4)
Sorer Fields, RestrooJIConcian Building, Maintenance Building, try Areas, Sports
Field Lighting, and Landscape Improvements
Project Name: Santa Clara High School Athletic Field Improveulent..
Owner: Santa Clara Unified School District
Representative: Larry Adams, (408) 983 -2055
Contract Amount: $ 3,369,000.00
Scope of Work: Complete Renovation of Existing Athletic Fields, includhlga Sand .Base
Football/Soccer Field with Special Sand Channel Drainage SystenisentOtrinede
Sod, Girls Softball Field with Special Infield Mix and Drainage, Boys Bathe Field with
Special Meld Mix and Drainage, Tennis Courts, Play Courts for Volleyball: kW
Basketball, New All- Weather Running Track, Track and Field Elements; andLandscape
Improvements.
Project Name: Emerald Glen Park
Owner. City of Dublin
Representative: Don Salina, City of Dublin (925) 833 -6630
Contract Amount: $ 4,011,000.00
Scope of Work: Construction of a New 17 acre Community Park with (3)*Oleball
Fields, (1) Soccer Field, (4) Tennis Courts, Basketball Courts, Skateboatd Nrk,
Children's Water Play Area, .Restroom/Concessivn i dir Scorekeeper's Booths,
Artificial Rock Play Area, and Landscape Improvements.
Project Name: Muirfield Neighborhood Park
Owner: City of Tracy
Representative: John Best, Assistant City Engineer, (209) 831 -4450
Contract Amount: $ 873,238.70
Scope of Work: Construction of a New 6 Acre Community Park with a *air Play Area
Basketball/Roller Hockey Court, Play Area, Concrete and Wood Arbor Pia& Structures,
Multi - Purpose Grass Sports Field, and Landscape Improvements.
Project Nance: Katzakian Park Improvements
Owner: City of Lodi
Representative: Wes Fujitani, Senior Civil Engineer (209) 333..4706
Contract Amount: $ 553,590.00
Scope of Work: Construction of a New 5 Acre Community Park with Rte: Court,
Parking Lot, Pedestrian Lighting, Multi- Purpose Grass Sports Field, Rettrociin Building,
Shade Structure, Picnic and Play Area, and Landscape .Improvements_ •
sent !3y: ODUULANU L/6 UUNSI.iNU;
CU�OJ:I�J:I•+,
Contract Amount: $850,000.00
Scope of Work: Construction of a New Park, Landscape, Irrigation, Electrical,
Skate Park, Site Furnishings, Concrete, Shade Structures and Miscellaneous Items.
Project Name: Galli Family Park
Owner: City of Tracy
Representative: Paul Verma (209) 831 -4460
Contract Amount: $ 965,000.00
Scope of Work: Construction of a New Park, Landscape, irrigation, El cal, Restroom
Binding, Site Furnishings, Concrete, and Miscellaneous Items.
Project Name: Matt Equooia Park
Owner: City of Stockton
Representative: Victor Machado (209) 937 -8899
Contract Amount: $1,068,000.00
Scope of Work: Construction of a New Park, Landscape, irrigation, Ete t iea#, Restroom
Building, Site Furnishings, Concrete and Miscellaneous Items.
Project Name: Ustack Park
Owner: City of Modesto
Representative: Robert Snell (209) 577 -5452
Contract Amount: $1,038,900.00
Scope of Work: Construction of New Park, Landscape, Irrigation, Elm, Restroom
Building, Concrete, Site Furnishings, and Miscellaneous Items
Project Name: Cochran baton Parkway
Owner: Southgate Park and Recreation Department
Representative: Judy Robinson (916) 428-1171
Contract Amount: $1,250,000.00
Scope of Work: Construction of New Park, and Extension of Parkway, 'Landscape
Irrigation, Drainage, Electrical, Site Furnishings, Concrete, etc.
Project Name: Hawkins Park
Owner: Elk Grove Community Park & Recreation
Representative: Phil Hoffingshead (916) 685.3917
Contract Amount: $ 454,000.00
Scope of Work: Construction of 5 Acre Park with Play Equipment, Siteshings,
Concrete, Electrical, Landscape and irrigation
Project Name: Castlerock Field Restoration
Owner: City of Walnut Creek
Representative: Paul Causey (925) 778.4040
Contract Amount; $ 785,000.00
Scope of Work: Construction of a New Baseball Fields.
Project Name: Nebon Park
Owner: City of Stockton
Representative: Kleinfelder & Associates -John Donat (209) 948 -1345
Contract Amount: $ 1,485,000.00
Scope of Work: Construction of a New 12 Acre Park with Restroom Building, Play
uy • LA.11,1,1 1 .LIL 4L-1 0 L3
1111-i711-111111111101111111.111111111.1111111111111.11111.111.■11111-
DC. C.15.2005 2:29PM CITY OF MODESTO ENGINEERING
The Bidder sballiiiit the Anne ard address of each subcontractor to %A:m=4m aid40 rope= 'to
subconreact potions of the work, as required bY the Provisions in "RoOotti Listing othoposed
Subcoistmgtors". in Section 2.1.054 of the State Standard Specifications and Section 2-1.01 "Omani°
of the Special Provisions.
LIST OF SUBC°14TRACT°115
1
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§ 2.02[F] CALIFORNIA CONSTRUCTION LAW
Failure to comply with the notice requirements constitutes a sufficient
ground, standing alone, to deny relief to a bidder.77
Although a bidder may not change its bid, if the agency refuses to allow the
contractor to withdraw its bid, the contractor must perform the work at the price
bid or forfeit its bid security. If the contractor accepts award of the contract in
spite of a mistake in its bid, it may not thereafter seek to rescind or reform the
contract.78
The contractor may file suit against the public agency to recover the amount
of any forfeited security, without interest or costs, within 90 days after the open-
ing of the bid. Actual forfeiture is not a prerequisite to filing suit.79 If the bidder
fails to recover judgment, it must pay all costs incurred by the public agency in
the suit, including attorneys' fees.80
[F] Evaluation of Bids
In order to provide all qualified bidders with a fair opportunity to enter the
bidding process, public agencies utilize standard forms, receive sealed bids
within a published deadline, and refrain from ex parte or private communications
with bidders. To maintain fairness during the evaluation process, bids must be
rejected if they are not responsive to the invitation and specifications or if a bid-
der is not responsible to perform the work. An awarding agency has a high degree
of discretion in determining the responsiveness of a bid or the responsibility of
a bidder. Moreover, the awarding agency always has the discretion to reject all
bids and readvertise or to abandon the project.81 Practical considerations, such
as delay to the project and the cost of rebidding, may be among the many fac-
tors considered in determining whether to reject all bids and rebid the project.
VI] Bid Responsiveness
To be responsive, a bid must conform to the material terms of the bid pack -
age.82 Usually, whether a bid is responsive can be determined from the face of
the bid without outside investigation or information.83 Properly worded perfor-
mance specifications, however, permit the agency to exercise discretion in deter-
mining whether a bid meets the specifications. An agency may require the bidder
to demonstrate proposed systems or submit additional information in order to
determine whether the bid meets the specifications.84 A bid that varies materially
77 See A &A Elec., Inc. v. City of King, 54 Cal. App. 3d 457 (1976).
78 See Lemorge Elec. v. County of San Mateo, 46 Cal. 2d 659 (1956).
79 Ballret Bros. Constr. v. Regents of the Univ. of Cal., 80 Cal. App. 3d 321 (1978).
80 Cal. Pub. Cont. Code §§ 5101, 5102.
81 Charles L. Harney, Inc. v. Durkee, 107 Cal. App. 2d 803 (1962).
82 Menefee v. County of Fresno, 163 Cal. App. 3d 1175 (1985); Southern Check Exch. v. San
Diego, 5 Cal. App. 3d 81 (1970).
83 MCM Constr., Inc. v. City & County of S.F., 66 Cal. App. 4th 359 (1998), req. for depubli-
cation denied.
84 See, e.g., National Identification Sys., Inc. v. State Bd. of Control, 11 Cal. App. 4th 1446
(1992).
86
•
I
WilliftlioNLIpted
BIDDING PRIVATE AND PUBLIC WORK § 2.02[E]
bid or refrain from bidding, that the bidder has made no agreements for price fix-
ing or payment of fees in connection with the bid, and that all statements con-
tained in the bid are true.72
[4] Affirmative Action Forms
If the project is subject to one of the affirmative action programs discussed
in more detail in § 2.02[F][3], bidders will be required to submit certain docu-
mentation relating to participation levels of and good -faith outreach efforts to
disadvantaged business enterprises or other designated classifications. Failure to
submit the required documents will render a bid nonresponsive.
[E] Bid Withdrawal and Mistake
A bidder may withdraw its bid upon written request submitted to the pub-
lic entity before the deadline for bid submissions. A bidder who has withdrawn
a bid may submit a new bid if the bid submission deadline has not already
passed.73 Once the bid is submitted, the bidder has made a binding offer for the
contract work, which the public entity can accept upon bid opening.
A bidder who discovers that it has made a mistake in its bid after the bids
have been opened may seek relief from its mistake under certain circumstances.74
Historically, the only remedy available to a contractor seeking to withdraw a bid
because of a mistake was to sue for rescission.75 In 1 97 1 the legislature codified
the grounds for obtaining relief for mistakes in bids and eliminated the remedy
of rescission for agencies bound by the California Public Contract Code. In order
to be relieved from its bid, the bidder must establish:
1. a mistake was made;
2. the contractor gave the public entity written notice of the mistake
within five days after the opening bids, specifying in the notice in detail
how the mistake occurred;
3. the mistake made the bid materially different than the bidder intended
it to be; and
4. the mistake was made in filling out the bid and not due to error in judg-
ment or to carelessness in inspecting the site of the work, or in read-
ing the plans or specifications.76
72 Cal. Pub. Cont. Code § 7106.
73 See, e.g., Cal. Pub. Cont. Code § 10167.
74 Id. § 5101.
75 M. F. Kemper Constr. Co. v. City of L.A., 37 Cal. 2d 696 (1951); Elsinore Union Sch. Dist.
v. Kastorf, 54 Cal. 2d 380 (1960).
76 Cal. Pub. Cont. Code § 5103.
85