HomeMy WebLinkAbout10-1-2009 Council Agenda Item 1-ECity Of
IlcldlCAn��
rRC����►� REPORT TO THE CITYCOUNCIL
October 1, 2009
FROM: KENNETH A. NERLAND, Director
General Services Department
BY: KELLY S. RIDDLE, Manager-�..._.
GSD/Facilities and Major Projects Division
AGENDA ITEM NO.
COUNCIL MEETING 10/1/09
APPROVED BY
DEPARTMENT DIRECTOR
CITY MANAGER
MARK M. JOHNSON, Senior Project Manager
GSD/Facilities and Major Projects Division
SUBJECT: REJECT ALL BIDS TO RE -ROOF FRESNO ART MUSEUM (BID FILE NO. 2971)
RECOMMENDATIONS
Staff recommends the City Council reject all bids to re -roof the Fresno Art Museum (FAM) building and direct
staff to re -bid the project in the spring of 2010 during favorable weather conditions. The rejection of all bids is
based on a decision that the project will be awarded too late in the winter, exposing the FAM building and
contents to inclement weather during construction.
EXECUTIVE SUMMARY
The roof system at the FAM is original to the building and has exceeded its life expectancy. The Facilities and
Major Projects Division of the General Services Department is proposing to remove and replace the roof
system at the FAM building.
Fryer Roofing Co., Inc. of Fresno, CA (Fryer) was initially determined to be the lowest responsive and
responsible bidder. During the bid evaluation period, Fryer was determined to be non-responsive. Staff
proposed to bypass Fryer and recommend the contract be awarded to Fresno Roofing Company, Inc. of
Fresno, CA (Fresno Roofing) as the next lowest responsive and responsible bidder. Fryer filed an appeal
based on the original staff determination to bypass their apparent low bid as non responsive. An appeals
hearing was heard on September 21, 2009. The Hearing Officer concludes that Fryer submitted a responsive
bid.
The bid appeals process has delayed the award of the contract and has pushed the construction start date
later into the winter months. The delay of construction may expose the FAM building and contents to damage
during construction in inclement weather. Staff recommends the City Council reject all bids to re -roof the FAM
building and direct staff to re -bid the project in the spring of 2010 during favorable weather conditions. Facilities
and Major Projects is prepared to mitigate and weather proof the roof at the FAM for the winter months prior to
the project being re -bid in the spring of 2010.
BACKGROUND
The roof system at the FAM is original to the building and has exceeded its life expectancy. The roof system
leaks during the rainy season and needs to be replaced. The scope of work includes removal of existing
asphaltic built-up roofing, insulation, base flashings, patches, mastic, damaged roof sheathing, and related
flashings down to wall and deck substrates on all twenty-one (21) roof surfaces at the FAM, and furnishing and
installing a new thermoplastic roof system over a 1 %2" thickness roof insulation and '/4" gypsum cover board
REPORT TO THE CITY COUNCIL
Reject all Bids for the Fresno Art Museum Re -Roof
October 1, 2009
Page 2
and related elements on all twenty-one (21) roof surfaces. Contract provisions provide for a twenty (20) year
warranty of the new roof system.
The roof will be Title 24 compliant and meet "cool roof" requirements. The State of California's Title 24 Energy
Efficiency Standards for Residential and Nonresidential Buildings were established in 1978 in response to a
legislative mandate to reduce California's energy consumption.
Specifications were prepared by Troy Brooks and Associates to remove and replace all twenty-one (21) roof
surfaces of the FAM. A Notice Inviting Bids was published on August 7, 2009. Specifications were distributed
to ten Building Exchanges via Fax Notice Inviting Bids and distributed to ten prospective bidders. Six sealed
bid proposals were received and opened in a public bid opening on September 3, 2009. The six bids were
received from Williamson Roofing Inc., dba Williamson Construction Group of Fresno, CA; Fresno Roofing
Company, Inc. of Fresno, CA; Fryer Roofing Co., Inc. of Fresno, CA; Graham Prewett, Inc., of Fresno, CA;
Roof Systems, Inc., dba Nations Roof West of Fresno, CA; and AAA Roofing By Gene, Inc., of Riverside, CA.
Based on the sealed bids, Fryer was initially determined to be the lowest responsive and responsible bidder
with a base bid of $253,266.00. During the bid evaluation period, Fryer was determined to be non-responsive
as they did not comply with the requirements of the contract documents to submit a completed Bid Proposal.
Staff proposed to bypass Fryer and recommend the contract be awarded to Fresno Roofing as the next lowest
responsive and responsible bidder with a base bid of $283,000.00. Fryer was notified on September 4, 2009 of
this determination and given the opportunity to appeal pursuant to Council Resolution 2003-129. Fryer filed an
appeal based on the original staff determination to bypass their apparent low bid as non responsive. An
appeal hearing was heard by the Honorable Alan Yengoyan, Appeal Hearing Officer, on September 21, 2009.
The Hearing Officer concludes that upon arguments presented by the City, Fryer submitted a responsive bid.
Staff recommends the City Council reject all bids to re -roof the FAM building and direct staff to re -bid the
project in the spring of 2010 during favorable weather conditions. The bid appeals process has delayed the
award of the contract and has pushed the construction start date later into the winter months. This delay of
construction may expose the FAM building and contents to damage during construction in inclement weather.
Facilities and Major Projects is prepared to mitigate and weather proof the roof at the FAM for the winter
months prior to the project being re -bid in the spring of 2010.
FISCAL IMPACT
None
Attachments: Bid Evaluation Proposal
Respondent's Brief, September 14, 2009
Record of Decision, Alan Yengoyan, Appeal Hearing Officer, September 21, 2009
Fresno Art Roof 10-1-09
N
jW911100j, 04im
FOR: RE -ROOF FRESNO ART MUSEUM
Page I
Bid File No, 2971
Bid 2p��njn : September 3, 2009
BIDDER'S NAME TOTAL NET BID AMOUNT
1. Fryer Roofing Co., Inc, Total Net Base Bid Amount $253,266,00
4877 W Jennifer, Ste 105 Add Alternate No, 1 $6,614.00
Fresno CA 93722 Add Alternate No, 2 $104.00
Add Alternate No. 3 $500.00
2. Fresno Roofing Company, Inc. Total Net Base Bid Amount $283,000.00
5950 E Olive Avenue Add Alternate No. 1 $4,900.00
Fresno CA 93727 Add Alternate No. 2 $156.00
Add Alternate No. 3 $750.00
3. Williamson Roofing, Inc, dba Total Net Base Bid Amount $293,458.00
Williamson Construction Group Add Alternate No. 1 $5,000,00
5627 E Kings Canyon #102-156 Add Alternate No. 2 $192,00
Fresno CA 93727 Add Alternate No. 3 $1,000.00
4. Graham Prewett, Inc, Total Net Base Bid Amount $326,000.00
2773 N Business Park Ave #102 Add Alternate No. 1 $12,600.00
Fresno CA 93727 Add Alternate No. 2 $125,00
Add Alternate No, 3 $1,200.00
5, Roof Systems, Inc. dba Total Not Base Bid Amount $368,800.00
Nations Roof West Add Alternate No. 1 $393,480,00
5463 E Hedges Avenue Add Alternate No. 2 $74,71
Fresno CA 93727 Add Alternate No. 3 $664.10
6. AAA Roofing By Gene, Inc. Total Net Base Bid Amount $380,845,00
2685 Avalon Street Add Alternate No. 1 $9,800.00
Riverside CA 92509 Add Alternate No, 2 $128,00
Add Alternate No. 3 $750,00
KftCOMMONTVALUATIONS 8, RKAM2971 Reroof Art Muse(jyn avjjuatjonf0rMpW_GSDFij1ed InADc.
EVAL2A-Q1ON OF BID PROPOSALS
Page 2
Bid File No. 2971
Bir, pening: September 3, ?Q09
Each bidder has agreed to allow the City sixty-four (64) days from date bids are opened to accept or
reject their bid proposal. Purchasing requests that you complete the following sections and return this
bid evaluation to the Purchasing Division at the laiggbyda Yednes
Wedne ygptembe(30,2009,5,.QOP.M�
The Engineer's Estimate for this expenditure Is $515,000.00, The contract price is 60% below the
Engineer's Estimate. If the overage is greater than 10% or only one bid was received, give explanation:
BACKGROUND OF PROJECT (To be completed by Evaluating Departimrit/
Division. Explain need for project/equipment):
The roof system at the Fresno Art Museum is original to the building and has reached the end of its
useful economic life. The roof leaks during times of inclement weather and is in need of replacement.
The new roof system will meet or exceed the State of California Title 24 Energy Conservation Standards
and will meet "cool roof' requirements,
2LP—&RTkC-N-[-QQNQLU8 IONS ADBECOMMENDATION:
L] Award a contract in the amount of
to
as the lowest responsive and responsible bidder,
Remarks:
M Reject all bids. Reason:
K;%GOMMON\EVALUATiONS & RECAPSV971 ReroOf Art Museurn ova luationform PVV-GSD-F Ifled hdoo
EVALUATION OF BID PROPOSALS
FOR: RE -ROOF FRESNO ART MUSEUM
Division Head Approval
qcj A, i t.c
Y
Title --'W jL-�_(, &Q C- =_
Date glzjoq
Department Head Approval
Title (" %,- Aq V
Date 9
KApprove Dept. Recommendation L,j
Lj Disapprove Lj
[_j See Attachment
GENERAL SERVICES DEPARTMENT
u hasing Manager at
Director Date
Page 3
Bid File No. 2971
Bid Opening: September 3 2009
Approve GSD/Purchasing Recommendation
Disapprove
CITY MANAGER
I �Manager or Designee Date
KXOMMONEVALUATIONS & RECAPS52971 Reroot Art Museum evaluationformPW-GSD•Filled In.doc
Our File No.
3824-IODVT
Via hand delivery and faeshnile
Jason MacDonald, Purchasing Manager
City of Fresno
2101 "G" Street, Building A
Fresno, California 93706
Re: Appeal of Fryer Roofing Co., hie. from staff determination to by-pass
Fryer Roofing bid as non-responsive regarding the re -roofing
of the Fresno Art Museum Project (Bid File No. 2971); Project ID PM -139
Dear Mr. MacDonald:
This firin represents Fryer Roofing Co., Inc. ("Fryer Roofing") and I am submitting
this appeal pursuant to Resolution 2003-129 from the City's tentative finding that Fryer Roofing's
bid has been determined to be non-responsive to the specifications for the above project.
1. S UMMARY
Fryer Roofing's bid which was $30,000 lower than the second bidder, was, in fact,
responsive and furnished the City with the precise dollar amount that Fryer Roofing agreed to
perforin the project. If there were any irregularity in the Fryer Roofing bid, it was only a minor
irregularity and an inconsequential deviation which the City should waive. Moreover, Fryer
Roofing should not be punished for submitting a bid on a City generated bid form that was
ambiguous at best and misleading at worst.
II. FACTS
On September 3, 2009, Fryer Roofing submitted a timely bid on the project, the
pertinent portion of which is attached hereto as Exhibit "A" and incorporated herein (referred to
as the "bid form"). Fryer Roofing's total bid was $253,266.00 which was approximately
$30,000.00 lower than the second bidder. As set forth in the bid form, items 1 ($4,000.00 for
mobilization) and 3 ($1,000.00 for a mediator) were pre -designated lump sum items leaving only
one item (item 2 to remove and replace roof) for a bidder to fill in.
(00008613)
PERKINS, MANN & EVERETT
JAN T. PERKINS
JERRY H. MANN
A PROFESSIONAL CORPORATION' _'°; ^ ;m '
REID H. EVERETT
ATTORNEYS AT LAW CONFERENCE OFFICE:
CURTIS D. RINDLISBACHER
�}�,�O�10 0 450 South Cabrillo Highway, Suite 100
2222 WEST SHAW AVENU I Ft► �t�'
DOUGLAS V. THORNTON
FRESNO, CALIFORNIA 9� -b7 Half Moon Bay, California 94019
ROBERT W. BRANCH
RAY S. POOL
TELEPHONE (559) 447-5Ipj t v, .t ' ;) € U t v i S I c�
FACSIMILE (559) 447-56OCCITY OF h iiLS1i0
JAMES A. MCKELVEY
OF COUNSEL
September 14, 2009
Our File No.
3824-IODVT
Via hand delivery and faeshnile
Jason MacDonald, Purchasing Manager
City of Fresno
2101 "G" Street, Building A
Fresno, California 93706
Re: Appeal of Fryer Roofing Co., hie. from staff determination to by-pass
Fryer Roofing bid as non-responsive regarding the re -roofing
of the Fresno Art Museum Project (Bid File No. 2971); Project ID PM -139
Dear Mr. MacDonald:
This firin represents Fryer Roofing Co., Inc. ("Fryer Roofing") and I am submitting
this appeal pursuant to Resolution 2003-129 from the City's tentative finding that Fryer Roofing's
bid has been determined to be non-responsive to the specifications for the above project.
1. S UMMARY
Fryer Roofing's bid which was $30,000 lower than the second bidder, was, in fact,
responsive and furnished the City with the precise dollar amount that Fryer Roofing agreed to
perforin the project. If there were any irregularity in the Fryer Roofing bid, it was only a minor
irregularity and an inconsequential deviation which the City should waive. Moreover, Fryer
Roofing should not be punished for submitting a bid on a City generated bid form that was
ambiguous at best and misleading at worst.
II. FACTS
On September 3, 2009, Fryer Roofing submitted a timely bid on the project, the
pertinent portion of which is attached hereto as Exhibit "A" and incorporated herein (referred to
as the "bid form"). Fryer Roofing's total bid was $253,266.00 which was approximately
$30,000.00 lower than the second bidder. As set forth in the bid form, items 1 ($4,000.00 for
mobilization) and 3 ($1,000.00 for a mediator) were pre -designated lump sum items leaving only
one item (item 2 to remove and replace roof) for a bidder to fill in.
(00008613)
PERKINS, MANN & EVERETT
Jason MacDonald, Purchasing Manager
September 14, 2009
Page 2
Bid items 1 through 3 were addressed in the specifications, at page 6-1, a true and
correct copy of which is attached hereto as Exhibit "B." The bid item for the mediator (item 3)
made reference to page 2.17 of the specifications which noted in pertinent part that: "This bid
item may be increased, decreased, or deleted in its entirety and is not to be construed as
additional money owed to the Contractor. If no Change Order is issued against this bid item, the
Contract Price shall be reduced by the full amount of the bid item included in the Bid Proposal
for the Mediator."
Specifications page 1.4 discuss "minor irregularities" and provides:
"The City reserves the right to waive any informality or minor irregularity
that does not have a monetary consideration when it is in the best interests
of the public and of the City to do so. A discrepancy that offers a Bidder an
unfair advantage will cause the bid to be nonresponsive."
At the bid opening, the City stated the bid of Fryer Roofing was the apparent low
bidder and its bid amount of $253,266.00 was read by the City's representative.
Despite being approximately $30,000.00 lower than the next bidder, the Purchasing
Department has tentatively found the Fryer Roofing bid to be nonresponsive on the basis that
Fryer Roofing failed to bid item 2 on the bid proposal "as required in the bid proposal
specifications. In evaluating bids a critical factor was that in order to be responsive, a bidder had
to fully fill in all items on the bid proposal page." (City of Fresno letter to Fryer Roofing dated
September 8, 2009.)
As noted, the bid form (Exhibit "A"), refers to the "Total Net Base Bid Amount."
The City had already preprinted the amounts for items 1 and 3 in the bid form.
Neither the bid form nor the specifications define the term "net base bid" nor is any
indication given of what this number is net of. This reference to "net base bid" is confusing at
best.
Fryer Roofing's $253,266.00 bid is its total bid and the amount for which it has agreed
to perform the work to construct the subject project. This amount includes everything in the
scope of work including items 1 and 3 for mobilization and the mediator.
The bid forn specifically provides that "the lowest bid shall be determined by the
lowest bid price on the Total Net Base Bid Amount, ..." While Fryer Roofing did not fill in item
2, it did fill in an amount ($253,266.00) for the "Total Net Base Bid Amount" as the bid form
required. Thus, it is undisputed the City knows the total amount of Fryer Roofing's bid
regardless of whether item 2 was left blank.
(00008613)
PERKINS, MANN & EVERETT
Jason MacDonald, Purchasing Manager
September 14, 2009
Page 3
III. DISCUSSION
The purchasing manager has taken the position that because Fryer Roofing did not fill
in the blank in item 2 for removing and replacing the roof, its bid was nonresponsive. Fryer
Roofing disagrees.
A. Fryer Roofing's Bid Furnishes the City With the Total Amount of Its Bid.
At the outset, the City knows the amount of Fryer Roofing's "Total Net Base Bid
Amount" -- $253,266.00. The critical part of the form is complete. The only blank was item 2
and this did not need to be filled in because it is obvious the amount of Fryer Roofing's bid
covers all items. (Items 1 and 3 were already filled in the bid form [a total of $5,000.00] so by
process of elimination only item 2 remained and the total figure bid [snore than $5,000.00] was
obviously the bid for the entire project.
Assuming that the failure to insert an amount in item 2 was an irregularity it was
so minor as to be waivable as follows.
B. The Standards for Evaluation for Alleged Irregularities in a Bid.
At the outset, the City's own specifications (p. 1.4 quoted above) recognize that
there can be irregularities in a bid. To the extent that the failure to include an amount in item
number 2 constitutes an irregularity, the question is whether this is the type of irregularity that
can be waived. The answer is yes.
In making that determination, California courts have held that a bid which is not
strictly responsive but which substantially conforms to the advertisement, may be accepted "if
the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit
not allowed other bidders or, in other words, if the variance is inconsequential." (Konica
Business Machines USA, Inc. v. Regents of University of California (1988) 206 Ca1.App.3" 449,
454; 47 Ops.Cal.Attomey General 129, 130 (1966).) The relevant inquiry is whether the bid
deviation facilitates "corruption or extravagance" or is likely to affect the amount of bids or the
response of potential bidders. (MCM Construction, Inc. v. City and County of San Francisco
(1998) 66 Cal.App.4"' 359, 370.)
Further, "... [a] public entity may waive inconsequential deviations from
contract specifications in a public contract bid. To be considered inconsequential, a deviation
must neither give the bidder an unfair competitive advantage nor otherwise defeat the goals of
insuring economy and preventing corruption in the public contracting process." (Ghilotti
Construction Co. v. City of Richmond (1996) 45 Cal App.4"' 897, 900.)
(000086 ] 3)
PERKINS, MANN R EVERETT
Jason MacDonald, Purchasing Manager
September 14, 2009
Page 4
C. Fryer Roofing's Bid Was Responsive and There Was Only an Insignificant
and Minor Irregularity
As a practical matter, the failure to fill in item number 2 was at most an
inconsequential error. As noted in the bid form, items 1 and 3 for mobilization and
mediation were already set forth in the bid form by the City. Thus, the fact that Fryer Roofing
failed to fill in item number 2 and left it blank is of no consequence because it gave a total
amount of its base bid, i.e. the amount that Fryer Roofing has agreed to perform the work.
The City's purchasing agent's analysis and conclusion might make some sense if
there were numerous items that a bidder left blank. For example, let us assume this were a street
project and a bidder had left blank the items for sidewalks, street lights, and landscaping, but
only filled in the item for asphalt paving and then gave a total price. Under this example where a
bidder left numerous items blank, the City might reasonably wonder- whether the bidder- was in
fact agreeing to perform all items that were called for in the bid. The City could justifiably find
the bid nonresponsive. However, that is not the case in this situation.
On the contrary, there were three items on which bidders were asked to bid, two
of which were already set forth by the City. There is no ambiguity or confusion as to whether
Fryer Roofing has agreed to perform the work described in the specification (remove and replace
the roof) because the bid amount of $253,266.00 obviously includes items 1 and 3 leading to the
inescapable conclusion that Fryer Roofing is offering to perform the work and had in fact bid the
job for $253,266.00. There is no question that Fryer Roofing was intending to perform all the
items as there was really only one item blank to fill in which the bidder unfortunately failed to
do. However, this failure is of no consequence because the City has the total bid amount and
there can be no question that the bidder intends to perforin all of the work called for in the
contract and specifications for that amount.
Under the legal standards and City specifications quoted above, there was at most
a minor irregularity for the failure to fill in item number 2. Fryer Roofing is not getting any type
of competitive advantage over the second bidder inasmuch as Fryer Roofing's bid was $30,000
lower than the next bidder. Thus, the failure to fill in item number 2 is of no monetary
consequence. A finding of a minor irregularity would also promote the salutary effect of public
works contracts and competitive bidding and insures economy (Gh.ilotti Construction. Co. v. City
of Richniond, supra, 45 Cal.App.4"' 897, 900) because Fryer Roofing's bid is lower than the
second bidder by tens of thousands of dollars.
(00008613)
PERKINS, MANN & EVERETT
Jason MacDonald, Purchasing Manager
September 14, 2009
Page 5
Next, there would certainly be no corruption for finding a minor irregularity
under these circumstances. Fryer Roofing would not be given a competitive advantage by
finding a minor irregularity.
If anything, the Fryer Roofing's bid arguably caused itself a competitive
disadvantage when compared to other bidders. That is, had Fryer Roofing filled in item number
2 and then added all three items together, its bid would in fact have been $5,000.00 higher,
therefore costing the City even more money. Instead, the City is getting a significant break here.
The variance also did not affect the amount of the bid (except to Fryer Roofing's
disadvantage) snaking the variation inconsequential. (Konica .Business Machines USA, Inc. v.
Regents of University of California, supra, 206 Ca1.App.3'a 449, 454.)
No other bidder would be disadvantaged by finding a material variance under
these circumstances.
It should also be mentioned that the bid form is less than perfect in this case. The
bid form refers to the "net" base bid amount but nowhere is net defined. This only created
confusion because if there were a net amount, the person arriving at the net amount should have
been able to determine from the documents or the transaction what the factors were to detennine
the net. No factors were, however, given.
This bid fonn only created confusion in teens of setting forth a net number. It
would be grossly unfair to punish Fryer Roofing for an arguably misleading fom1.
IV. CONCLUSION
There is no factual or legal basis to find Fryer Roofing's bid nonresponsive. Fryer
Roofing has submitted a bid for $253,266.00 which is approximately $30,000.00 below the next
bidder to perfo>n-i the work.
At a time when public agency budgets are strapped and every dollar counts, it would
only promote and insure "economy" by finding Fryer Roofing's bid responsive. (Ghilotti
Construction Co., supra, 45 Cal.App.4"' 897, 900.)
(00008613)
PERKINS, MANN & EVERETT
Jason MacDonald, Purchasing Manager
September 14, 2009
Page 6
Fryer Roofing asks that the hearing panel reverse the purchasing manager's decision,
find the bid responsive and authorize the award to Fryer Roofing. Fryer Roofing and the
undersigned would request notice of any hearing and the opportunity to be heard.
JHM:dl
Enclosures
cc: Fryer Roofing Co., Inc.
(00008613)
Respectfully Submitted,
EXHIBIT "A"
(REVISED) BID PROPOSAL r-\,,
�
BIDDER'S NAM e-�-�OLnn (e,
TO: THE PURCHASING MANAGER OF THE CITY OF FRESNO:
The undersigned Bidder, having carefully examined the location of the hereinafter described work, plans
and/or specifications therefore, hereby proposes to furnish, all, in strict accordance with said plans and/or
specifications, the materials, labor, and equipment necessary to complete the project for the prices set
forth in the following bid items:
BASE BID
ITEM QUANTITY DESCRIPTION OF WORK UNIT PRICE TOTAL PRICE
1. Lump Sum Mobilization Lump Sum $*4,000.00
2. Lump Sum Remove & Replace Roof Lump Sum $
3. Lump Sum Mediator Lump Sum $1000.00
(Owner's 50% share, see
page 2.17 of General Conditions)
TOTAL NET BASE BIID, /AMOUNT $ JZA, �In�La . Dp
The To�tal t/Base Bid ou t is 1 ccJ1l /V�uoln' �� T� 7"ll a cc_Ld_.,��
` ,,, N� .e./>/, 'ZIM'I Dollars and -f -- Cents.
*This item has been determined to L $4,000.00 as noted in the "Explanation of Bid Items," page 6.1.
The Bid Prices set forth herein shall include any and all applicable taxes.
ADD ALTERNATE NO, 1 UNIT PRICE TOTAL PRICE
1. Alternate 1 ''/z" roof system Lump Sum $
TOTAL AMOUNT ADD ALTERNATE NO. 1 $ L 6 l4. Db
ADD ALTERNATE NO. 2
1. Plywood Roof Sheathing (unit price as defined per sheet 6.1) Each $ �� D
TOTAL AMOUNT ADD ALTERNATE NO. 2 $ /U 4. DU
ADD ALTERNATE NO. 3
1. Roof Drain (unit price as defined per sheet 6.1) Each $ �Do,oD
TOTAL AMOUNT ADD ALTERNATE NO. 3 $
The Base Bid and all Add Alternate Prices set forth herein shall include any and all applicable taxes.
Bidders must bid all Bid Items including Add Alternates. Bids that are not fully filled in will be considered
incomplete and non-responsive.
The Council may award a contract to the lowest responsive and responsible bidder. The lowest
bid shall be determined by the lowest bid price on the TOTAL NET BASE BID AMOUNT, without
consideration of the price of any Add Alternates.
The City reserves the right to award the Total Net Bid Amount with or without any Add Alternates.
1.2 Revised (Add.4)
EXHIBIT "B"
TECHNICAL SPECIFICATIONS
Explanation of Bid Items
The unit price bid per unit measure of work shall include all costs of labor, equipment, and materials
necessary for the furnishing and constructing complete in place and operating in accordance with the
Plans and Specifications for the City of Fresno for all work listed in the bid items.
BASE BID
Bid Item No. 1 - Mobilization
This item shall be bid a lump sum and shall conform to the provisions of Section 11 of the Caltrans
Standard Specifications and these Specifications.
This item shall consist of covering the Contractor's cost for contract documents and for the moving of
personnel, equipment, supplies and incidentals to the project site.
The lump sum price for this item has been determined to be $4,000 and shall not exceed that amount. No
additional payment will be made for this item.
Bid Item No. 2 — Remove & Replace Roof:
For the performance of all Work on the areas specified on the project drawings including removal of all
existing roofing related items, and wood elements where indicated and installation of a new thermoplastic
roof system over layer of V thickness polyisocyanate roof insulation and 1/" gypsum cover board and
related elements on the areas indicated on the project drawings. Bid Includes manufacturer 20 Year NDL
warranty. Includes removal and replacement of damaged roof sheathing as approved.
Bid Item No. 3- Mediator
This bid item shall be bid lump sum for Mediator. Reference is made to "Mediator", on page 2.17 of the
General Conditions.
This work shall consist of paying the City's share of the costs of the Mediation, in conformance with the
provisions in the Specifications, and as directed by the Engineer.
The dollar amount listed on the Bid Proposal form is an estimate only and will be included in each bidder's
Bid Proposal.
ADD ALTERNATES
Bid Item No. 4 — Alternate System:
Bid to install 1-1/2" thickness polyisocyanurate roof system in lieu of 1" thickness insulation, with specified scope
of work per Base Bid.
Bid Item No. 5 — Plywood Roof Sheathing:
For removal and disposal of one (1) 4'x 8' sheet of plywood roof sheathing (in addition to those
included in Base Bid) and installation of new replacement plywood panel of matching thickness,
including nailing per specifications.
Bid Item No. 6 -- Remove & Replace Roof Drain:
For removal and replacement of one (1) existing roof drain with new cast-iron drain, including
installation, per specifications.
The Building Owner reserves the right to select all or any of the above bid proposals
GSDConslructionTechnica)Specifications 6.1 rev. 07-09
City of
■ ■ ■ ■ +ice
Office of the Independent
Administrative Hearinq Officer
DATE: September 21, 2009 (revised for typographical errors on 09/22/09)
TO: ANDREW T. SOUZA, Fresno City Manager
FROM: ALAN YENGOYAN, Administrative Appeal Hearing Officer
SUBJECT: FINDINGS AND RECOMMENDATIONS FROM THE APPEAL BY
FRYER ROOFING CO., INC. REGARDING BID FILE NO. 2971
(FRESNO ART MUSEUM PROJECT)
An appeal hearing was held on September 21, 2009 on the appeal filed by Fryer
Roofing Co., Inc. (hereinafter, "Fryer"), the lowest bidder on the subject bid proposal, in
regard to the Purchasing Division of the General Services Department's (hereinafter,
"Purchasing") staff determination that Fryer was not a responsive bidder and its
determination therefore to award the subject bid contract to Fresno Roofing Co., Inc. as
the next lowest responsive and responsible bidder.
This written decision is a supplement to the bench decision made at the hearing
wherein the decision by this hearing officer was made that Fryer was the lowest
responsive bidder and was recommended that Fryer be awarded the subject bid
contract.
The City was represented by: Nancy A. Algier, Senior Deputy City Attorney and
Jason MacDonald, City Purchasing Manager.
Representing the Appellant Fryer was attorney Jerry H. Mann of Perkins, Mann &
Everett, Attorneys at Law, and Leigh Ann Fryer, President of Fryer and Bruce Fryer,
CEO of Fryer.
Testimony was also provided from Edward Duarte, President of Fresno Roofing
Co., Inc.
No other bidders on this subject bid were present at the hearing nor were any
written statement of position or evidence presented from such bidders for consideration,
pursuant to provisions of City Resolution No. 2003-129
Statement of Relevant Facts:
The relevant facts are rather simple and straightforward in this case. Fryer
presented a revised bid proposal as did all other bidders. Its bid proposal (Exhibit #2)
stated a Total Net Base Amount of $253,266.00 which was to be the sum of Items #1
(Mobilization), #2 (Remove and Replace Roof) and #3 (Mediator). Items #1 and #3
City Hall • 2600 Fresno Street • Fresno, California 93721-3601 •559-621-7766 • FAX 559-621-7766 • www.fresno.gov
were amounts pre-set by the City at $4000.00 and $1000.00 respectively. Fryer failed
to enter any amount for Item #2, but its Total Net Base Amount was approximately
$30,000 less than the second lowest bid amount by Fresno Roofing (Exhibit #3).
Fryer's stated reason for the failure to enter any amount for Item #2 was that it was an
oversight on their part, but that that amount could readily be determined by subtracting
$5000.00 from their total net base amount. Everything else upon Fryer's bid proposal
was properly completed.
City's Position:
The City has argued that the Bid Proposal language specifically stated that
"Bidders must bid all Bid Items including Add Alternates. Bids that are not fully filled in
will be considered incomplete and non-responsive." By this language, the City argues
that it must reject Fryer's bid proposal as non-responsive because it was incomplete in
that one particular. The City argues that the integrity of the bidding process require total
completeness in the preparation of bid proposals pursuant to the bid specification
language demanded. The City presented no evidence nor did it argue that the failure to
state an amount for Item #2 gave Fryer any competitive monetary advantage or benefit
to the detriment of the other bidders.
Fryer's Position:
Fryer argues simple inadvertent and harmless error was committed by its failure
to state the amount in Item #2 and that amount could readily be determined by
subtracting $5000.00 from the total net base amount. Fryer further argues that the error
provided no monetary advantage or benefit to itself over other bidders and that the
same bid proposal language states "Mhe lowest bid shall be determined by the lowest
bid price on the TOTAL NET BASE AMOUNT, without consideration of the price of Add
Alternates" which it did state and which amount was the lowest.
Findings:
By the evidence presented by documents and testimony at the hearing, the
following findings are made:
There was no monetary advantage or benefit gained by Fryer over other bidders
for its failure to state an amount for Item #2.
Fryer stated the lowest total net base amount of all the bidders and is a
responsible bidder.
Fryer did not complete Item #2 as requested, but that error was minor and of no
consequence to the integrity of the bid process in this case.
Discussion:
Since Fryer stated its Total Net Base Amount, simple subtraction would provide
the Purchasing Division with the amount for removal and replacement of the roof (Item
City Hall • 2600 Fresno Street • Fresno, California 93721-3601 •559-621-7766 • FAX 559-621-7766 • www.kesno.gov
#2). If there were multiple other items (two or more) required to be provided in this bid
proposal which Fryer had left blank so that it would be uncertain how much would be
attributable to each, that would be a different matter, but in this bid proposal it was
obvious that $248,266.00 was the lump sum attributable to removal and replacing of the
roof.
The total net base amount Fryer provided as required by the bid proposal was
also in conformance to Fresno Municipal Code section 4-103 (c)(1).
The integrity of the bidding process is of paramount importance, but rigidity to a
process with a blind eye to readily ascertainable facts and common sense can itself be
cause for concern for the integrity of the process. -In this regard, the case of Konica
Business Machines v. Regents of the University of Califomia (1988) 206 Cal. App. 3`d
449 is directly on point where it held "[A] basic rule of competitive bidding is that bids
must conform to specifications, and that if a bid does not so conform, it may not be
accepted. However, it is further well established that a bid which substantially conforms
to a call for bids may, though it is not strictly responsive, be accepted if they rian
ce
cannot have affected the amount of the bid or given a bidder an advantage or benefit
not allowed other bidders or, other words, if the variance is inconsequential.°(underlining
add for emphasis)
The bid proposal (page 1.4) states: "The City reserves the right to waive any
informality or minor irregularity that does not have a monetary consideration when it is in
the best interest of the public and of the City to do so. A discrepancy that offers a
Bidder an unfair advantage will cause the bid to be nonresponsive." If the City can
reserve this right, which it can, that right must be used fairly, honestly, not arbitrarily nor
capriciously and only in the best interest of the public and the City in judging submitted
bids for what is or is not a minor irregularity, or in this case in particular, an omission of
no real consequence.
Decision:
Council Resolution No. 2003-129 states that the hearing officer shall decide
whether the bidder is responsive and responsible, or is non-responsive or not
responsible due to an irregularity in the bid proposal and whether such irregularity is
minor and should be waived, or whether the City should reject any or all bids presented.
It is this hearing officer's finding that Fryer was the lowest responsive and
responsible bidder and as such recommends that Fryer be awarded this subject bid.
Dated 54L�&, �,O— �
Alan Yengoyan,
Appeal Hearing OIcer
City Hall • 2600 Fresno Street • Fresno, California 93721-3601 •559-621-7766 • FAX 559-621-7766 • www.fresno.gov