HomeMy WebLinkAbout2018-12-18; Municipal Water District; ; Acceptance of bids and award of contract to Raven CLI Construction, Inc. for construction of the Maerkle Reservoir Floating Cover Replacement, Project No. 5036, for an amount not to exceed $7,429,400Meeting Date:
To:
From:
Staff Contact:
Subject
Dec. 18,2018
President and Board Members
Scott Chadwick, Executive Manager
Mark Biskup, Associate Engineer
mark.bi skup@carlsbadca.gov or 760-603-7352
CAReview <fl(__
Acceptance of bids and award of contract to Raven CU Construction, Inc.
for construction of the Maerkle Reservoir Floating Cover Replacement,
Project No. 5036, for an amount not to exceed $7,429,400.
Recommended Action
Adopt a Resolution accepting bids and awarding a contract to Raven CLI Construction, Inc. in an
amount not to exceed $7,429,400 for the Maerkle Reservoir Floating Cover Replacement,
Project No. 5036.
Executive Summary
The Maerkle Reservoir floating cover has reached the end of its useful life and requires
replacement. The Maerkle Reservoir Floating Cover Replacement, Capital Improvement
Program Project No. 5036 (Project), includes replacement of the floating cover, improvements
and repairs to the reservoir liner and replacement of the outlet valves and actuators.
Miscellaneous improvements will include upgraded electrical, controls, and monitoring and
water quality sampling equipment.
Carlsbad Municipal Code subsections 3.28.080(C) and (G) require City Council, or in this case
Board of Directors, approval to award public works contracts when the value exceeds
$175,000. The bid amount for this Project is $7,429,400. Staff recommends accepting bids and
awarding a contract to Raven CLI Construction, Inc. (Raven).
Discussion
Maerkle Reservoir is an asphalt-lined earthen dam with a floating polypropylene cover and an
approximate capacity of 200 million gallons of potable water. The dam was constructed in the
early 1960's. As part of an upgrade to the storage facility in 1996, the area on the upstream
side of the dam was re-graded for installation of a porous asphalt liner and a floating
polypropylene cover. The reservoir has a maximum water depth of 60 feet and a surface area of
approximately 17 acres when full.
The Project includes removal and replacement of the existing floating cover and repair or
replacement of related components. Carlsbad Municipal Water District (CMWD) provides
regular maintenance to keep the system in good operating condition at all times. Over the
years, the cover has degraded due to exposure to the elements. Furthermore, the
December 18, 2018 Item #5 Page 1 of 10
manufacturer's 20-year warranty expired, and the cover has reached the end of its anticipated
useful life.
The Project will incorporate the latest available technology for a new floating cover. All
improvements will be compliant with and approved by the California Division of Drinking Water
(DDW). The goal of the Project is to provide a cost-effective solution for replacement of the
floating cover, which protects and preserves potable water quality and meets regulatory
requirements.
On July 10, 2018, CMWD Board Resolution No. 1599 approved plans and specifications and
authorized the secretary to the Board to advertise and receive bids for the Project. The
engineer's estimate for construction was $8,432,000.
On Oct. 2, 2018, two sealed bids were received for construction of the Project as shown in the
following table:
MAERKLE RESERVOIR FLOATING COVER REPLACEMENT1 CIP PROJECT NO~ 5036
CONTRACTOR .·. TOTAL BID
1. Raven CU Construction, Inc. $7,429,400
2. Layfield Environmental Systems Corporation $8,037,360
Raven CU Construction, Inc. (Raven) was the apparent low bidder. On Oct. 5, 2018, one bid
protest letter was received (Exhibit 3) from Finch, Thornton, Baird Attorneys at Law
representing Layfield Environmental Systems Corporation (Layfield), the second lowest bidder.
The letter stated several objections, including an objection to the subcontractor listed in
Raven's bid for bid item 18, provide and install electrical improvements. Layfield argues that an
electrical contractor license, C-10 is required. The subcontractor in question has a Class A
General Engineering contractor's license, but not a C-10.
Staff has reviewed Layfield's bid protest and researched the issue. Under Business and
Professions Code 7056, a Class A General Engineering contractor can perform fixed works
requiring specialized engineering knowledge and skill, including water supply and hydroelectric
projects and any of the trades subsumed within these categories. Layfield does not dispute that
the listed subcontractor could do bid item 18 if it was the prime contractor, they just state that
the listed subcontractor cannot do the work as a subcontractor. In the case of Pacific Caisson
and Shoring, Inc. v Bernards Brothers, Inc. 194 Cal App 4th 681, a similar argument was made.
The court held that a Class A General Engineering contractor's license was sufficient to do
specialty work when a C-12 license was required by the prime contract. This situation is
somewhat analogous in that Raven is proposing a Class A licensed subcontractor for specialty
electrical work. In addition, bid item 18 involves more than electrical work. For example,
trenching is required and that work cannot be done by a contractor with only a C-10 license.
Staff has determined that a Class A General Engineering contractor's license is appropriate for
this bid item. Business and Professions Code Section 7059 provides in part that in public works
contracts the awarding authority shall determine the license classification necessary to bid and
perform the project. The bid documents did not require a C-10 license and staff has determined
December 18, 2018 Item #5 Page 2 of 10
a Class A General Engineering License is appropriate. Staff has determined that Raven's bid is
responsive, recommends award of the contract to Raven as the lowest responsive bidder and
that the CMWD Board of Directors deny the bid protest of the second lowest bidder.
The construction contract contains general performance standards and references technical
specifications. In addition to the contract's one-year performance warranty, a manufacturer's
30-year material warranty for the geomembrane floating cover is included as part of the
Project. The construction contract specifies 200 working days to complete the work and
includes liquidated damages which may be assessed in the amount of $3,000 per day for each
day in excess of the time specified for completion of the work. A five percent retention will be
withheld from each progress payment until final acceptance of the Project.
Fiscal Analysis
The total estimated cost to complete the Project is $9,110,876 and includes the following:
construction contract, contingency for change order management, construction management
and inspection, engineering support for contractor shop drawings, requests for information and
meetings, and community outreach. A summary of the available funds and estimated
construction costs are shown in the table below:
MAERKLE RESERVOIR FLOATING COVER REPLACEMENT, CIP PROJECT NO. 5036
Current Appropriation $13,055,000
Current Expenditures/Encumbrances $715,762
TOTAL AVAILABLE MAERKLE RESERVO IR FLOATING COVER REPLACEMENT, $12,339,238
CIP PROJECT NO. 5036
MAERKLE RESERVOIR FLOATING COVER REPLACEMENT, CIP PROJECT NO. 5036
Construction Contract (Raven CU Construction, Inc.) $7,429,400
Construction Contingency $743,000
Construction Management, Inspection, and Material Testing (consulting $838,476
service)
Engineering and Administrative Support during construction (estimated) $100,000
TOTAL ESTIMATED CONSTRUCTION COSTS $9,110,876
. REMAINING BALANCE AFTER CIP PROJECT NO. 5036 $3,228,362
ADDITIONAL APPROPRIATION NEEDED $0
Next Steps
Once contract documents are fully executed and a purchase order is issued, staff will schedule a
pre-construction meeting with Raven and a Notice-to-Proceed will be issued. The duration of
the construction contract is 200 working days, exclusive of rain days and change orders that
may extend the contract duration. Upon successful completion of the Project, a Notice of
Completion to release bonds will be recorded.
December 18, 2018 Item #5 Page 3 of 10
Environmental Evaluation (CEQA)
The Project is exempt from the California Environmental Quality Act (CEQA) per State CEQA
Guidelines Section 15301(d) -restoration or rehabilitation of existing deteriorated or damaged
structures to meet current standards of public health and safety that involve negligible or no
expansion.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date. Prior to the start of
construction, the public will be notified of the construction activities using media methods such
as signage, email, website and other city communication channels. The construction contractor
will also be required to notify the public of construction activities via changeable message signs,
door hangers, letters to property owners, and/or "NO PARKING" signs, as applicable.
Exhibits
1. CMWD Board Resolution.
2. Location Map.
3. Bid Protest Letter.
December 18, 2018 Item #5 Page 4 of 10
RESOLUTION NO. 1610
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT BOARD (CMWD) OF THE CITY OF CARLSBAD,
CALIFORNIA ACCEPTING BIDS AND AWARDING A CONTRACT TO RAVEN CU
CONSTRUCTION, INC. IN AN AMOUNT NOT TO EXCEED $7,429,400 FOR THE
MAERKLE RESERVOIR FLOATING COVER REPLACEMENT, CAPITAL
IMPROVEMENT PROGRAM (CIP) PROJECT NO. 5036.
EXHIBIT 1
WHEREAS, the Carlsbad Municipal Water District (CMWD) Board of Directors (Board) ofthe City
of Carlsbad, California has determined it necessary, desirable, and in the public interest to replace the
Maerkle Reservoir floating cover, which is part of the existing CMWD water distribution system; and
WHEREAS, this Project is exempt from the California Environmental Quality Act (CEQA) per
State CEQA Guidelines Section 15301(d)-restoration or rehabilitation of existing deteriorated or
damaged structures to meet current standards of public health and safety that involve negligible or no
expansion; and
w·HEREAS, on July 10, 2018, CMWD Board Resolution No. 1599 approved plans and
specifications, and authorized the secretary to the Board to advertise and receive bids for construction
of the Maerkle Reservoir Floating Cover Replacement, CIP Project No. 5036 (Project); and
WHEREAS, on Oct. 2, 2018, two sealed bids were received by CMWD for construction of the
Project; and
WHEREAS, the lowest responsible bid was submitted by Raven CU Construction, Inc. (Raven) in
the amount of $7,429,400; and
WHEREAS, the second lowest bidder has filed a bid protest alleging the listed subcontractor in
Raven's for bid item is not qualified to perform the work because it does not have a C-10 electrical
license; and
WHEREAS, staff has reviewed the bid protest and the subcontractor's license. The
subcontractor has a Class A General Engineering contractor's license and is qualified to perform the
work in bid item 18 under Business and Professions Code § 7056 and the case of Pacific Caisson and
Shoring, Inc. v. Bernards Bothers, Inc. 194 Cal. App. 681; and
WHEREAS, Business and Professions Code § 7059 provides that in public works contracts the
awarding authority determines the license classification necessary to bid and perform the project; and
WHEREAS, staff recommends that the bid protest by the second lowest bidder be denied; and
December 18, 2018 Item #5 Page 5 of 10
WHEREAS, sufficient funds exist for the completion of this Project in the Maerkle Reservoir
Floating Cover Replacement Project, CIP Project No. 5036; and
WHEREAS, subsection 3.28.040(C)(5) of the Carlsbad Municipal Code authorizes the executive
manager to approve change orders in the amount equal to the contingency set at the time of project
award.
NOW, THEREFORE, BE IT RESOLVED by the CMWD Board of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. The bid protest by the second low bidder is denied.
3. That the bid in the amount of $7,429,400 submitted by Raven CU Construction, Inc. for
construction of the Maerkle Reservoir Floating Cover Replacement, CIP Project No. 5036, is accepted
and the president of the Board is hereby authorized to execute a contract with Raven CU Construction,
Inc.
4. That the executive manager or designee is hereby authorized to approve construction
change orders up to $743,000.
5. That the award of this contract is contingent upon the bidder submitting the lowest
responsible bid, executing the required contract and submitting the required bonds and insurance
policies, as described in the contract, within 20 days of adoption of this Resolution. The executive
manager may grant reasonable extensions of time.
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District Board of Directors of the City of Carlsbad on the 18th day of December, 2018, by the following
vote, to wit:
AYES:
NOES:
ABSENT:
M. Hall, K. Blackburn, P. Bhat-Patel, C. Schumacher, B. Hamilton.
None.
None.
(SEAL)
December 18, 2018 Item #5 Page 6 of 10
NOT TO SCALE
PROJECT NAME
LOCATION MAP
CITY OF OCEANSIDE
CITY OF CARLSBAD
MAERKLE RESERVOIR FLOATING COVER
REPLACEMENT
PLOTIED BY: SCOTT EVANS PLOT DATE:4/13/17 PATH:D: \UTILITIES DEPAR1MENT\LOCATION MAPS\AUTOCAD\5536.DWG
PROJECT
NUMBER
5036
EXHIBIT
2
December 18, 2018 Item #5 Page 7 of 10
FINCH 0 THORNTON ° BAIRD'"
ATTORNEYS AT LAW
October 5, 2018
Mr. Graham Jordan
Contract Administrator
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, California 92008
graham.jordan@carlsbadca.gov
URGENT BID PROTEST
Re: Urgent Bid Protest-Contract No. 5036
Project: Maerkle Reservior Floating Cover Replacement
Contract No.: 5036
Bid No.: PWS19-511UTIL
Protesting Bidder: Layfield Environmental Systems Corporation
Dear Mr. Jordan:
I . Introduction
EXHIBIT 3
Thomns F. Feel'ickJI'.
tfeerick@ftblaw.com
File 791.001
We represent Layfield Environmental Systems Corporation ("Layfield"), with respect to the above
project ("Project"). This is Layfield's protest of award of the Project to Raven CLI Construction, Inc.
("Raven"). As detailed below, Raven listed a class A General Engineering Contractor to perform all
electrical work for Bid Item 18. Raven's class A licensed subcontractor does not hold a C-10 electrical
specialty license. Thus, Raven's subcontractor will very likely subcontract out its scope to a C-10 licensee
in violation of Public Contract Code section 4105. Raven's subcontract listing is nonresponsive and
stands in contradiction to the legislative intent of the Subletting and Subcontracting Fair Practices Act.
Carlsbad Municipal Water District (the "District"), should reject the nonresponsive bid of Raven and
award to the lowest responsive and responsible bidder: Layfield.
2. CSLB Licensing Classifications
"A licensee classified as a general engineering contractor shall operate only within those areas
defined in Section 7056 of the Code." (Cal. Code Regs., tit. 16, §834, subd. (a).) In contrast to class A
general engineering contractors, "Specialty contractors shall perform their trade using the art, experience,
science and skill necessary to satisfactorily organize, administer, construct and complete projects under
their classification, in accordance with the standards of their trade. They are classified into the following
subclassifications ... Electrical C-10." (Cal. Code Regs., tit. 16, §832.)
3. Raven's Subcontractor Listing And Classification
Raven holds a class A general engineering contractor license. Raven listed CW Crosser
Construction, Inc. ("CW") as performing I 00 percent of electrical work under Bid Item 18 for
Pinch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 'f 858.737.3100 F 858.737.3101 ftblaw.cam
t/3 December 18, 2018 Item #5 Page 8 of 10
Mr. Graham Jordan
October 5, 2018
Page 2 of 3
$658,000.00. However, CW does not hold a C~ 10 electrical specialty license, it only holds an A general
engineering contractor license. In other words, CW committed to performing $658,000.00 in electrical
work without a specialty license. Very likely, CW will subcontract out a vast majority, if not all, of the
electrical work to specialty subcontractors who can actually perform the work. This action violates
California law.
4. Public Contract Code Section 4105
Raven's subcontractor listing stands in contrast to the Subletting and Subcontracting Fair Practices
Act. "[T]he practices of bid shopping and bid peddling in connection with the construction, alteration, and
repair of public improvements often result in poor qualhy of material and worlGnanshlp to the detriment of
the public, deprive the public of the full benefits of fair competition among prime contractms and
subcontractors, and lead to insolvencies, loss of wages to employees, and other evils." (Pub. Contract
Code,§ 4101.) "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." (Pub. Contract Code, § 4105, emphasis added.)
Here, Raven listed another A general engineering contractor, CW, to perform the electrical work.
CW will in turn subcontract out the electrical work to a specialty contractor who is properly licensed and
can actually perform the work. This practice, listing a general contractor in the subcontractor listing who
will then subcontract his work, post-bid, is in direct violation of Public Contract Code section 4105.
Fmther, it provides CW the opportunity to bid shop, post-bid, to secure lower prices from lower tiers.
Such an action violates the Subletting and Subcontracting Fair Practices Act.
Raven's listing also gives it an 1.mallowable advantage not afforded other bidders. "It is fmther
well established that a bid which substantially conforms to a call for bids may, though it is not strictly
responsive, be accepted if the variance cannot have ... given the bidder an advantage or benefit not allowed
other b;dders .... " (Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1440-1441,
emphasis in original.) Raven's listing allows CW to subcontract out the electrical work post-bid. CW will
procure, coordinate, and manage the subcontractors, not Raven. By its listing, Raven has afforded itself
the advantage of coordinating and procuring less subcontractors on bid day. Rather, Raven simply listed
CW, a general contractor, in its subcontractor listing and delegated subcontract coordination to CW as CW
likely cannot perform its listed work. This afforded Raven more time to prepare its bid over other bidders
like Layfield who took the time to procure the requisite subcontractors. This was an advantage not
afforded to Layfield. Accordingly, the District should reject Raven's bid as nomesponsive and award the
project to Layfield.
5. Conclusion
Electrical work is a specialty trade under the California licensing law. Raven's listed electrical
subcontractor, CW, is not a specialty contractor. To compensate, CW will very likely subcontract out the
electrical work, $685,000.00, to a lower tier. This is in violation of Public Contract Code section 4105.
Raven's listing also gave it an unallowable advantage in that it delegated subcontractor procurement to
Finch, Thornton & Baird, LLP 4747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 F 858.737.3101 ftblaw.com
December 18, 2018 Item #5 Page 9 of 10
Mr. Graham Jordan
October 5, 2018
Page 3 of3
CW, saving time on bid day. This advantage was not afforded to Layfield. The District should not reward
Raven's defective listing and delegation to CW to bid shop to lower tiers. Instead, the District should
reject Raven's bid as nonresponsive and award to the lowest responsive and responsible bidder, Layfield.
TFF:kam/3DV6930
Very truly yours,
~-~~
Thomas F. Feerick Jr.,
Attorney
Finch, Thornton & Baird, LLP ,;747 Executive Drive, Suite 700 San Diego, CA 92121 T 858.737.3100 ll 858.737.3101 ftblaw.com
December 18, 2018 Item #5 Page 10 of 10