SJECCD Board of Trustees   February 12, 2013     Item B.1.c – SJCC Jaguar Gym Roof  

In March 2012 San Jose City College (SJCC) approached the Program Manager about replacing the roof of the Jaguar Gymnasium that was built in the 1950s. In turn a design firm was contacted to create the bidding documents for the project.

In April of 2012, the design contract for the San Jose City College Jaguar Gymnasium Roof

Replacement Project with Simpson Gumpertz and Heger, Inc. was fully executed. In December 2012, following completion of the design, the District invited bids from roofing and general contractors for the San Jose City College Jaguar Gymnasium Roof Replacement Project.

The San Jose City College Jaguar Gymnasium Roof Replacement Project was advertised in

local papers on December 19th and 26th and January 2nd and 9th. During this period the project team contacted over 15 contractors notifying them of the upcoming project. The notification of the San Jose City College Jaguar Gymnasium Roof Replacement Project included local businesses, minority owned businesses and women owned businesses. In addition, the Santa Clara & San Benito County Building and Construction Trades Council notified various union affiliated painting and general contractors in the area of the pending project. We’ve estimated that over 30 contractors were notified of the project during the bidding process by these combined outreach efforts.

A mandatory pre-bid walk took place on January 10, 2013. Addendums were issued on

January 18th and bids were opened at 3pm on January 24, 2013. Bids received are listed at the end of this item.

The apparent low bidder was Waterproofing Associates, Inc. with a bid amount of $966,218. Their bid was submitted without the signed Construction Careers Program Agreement Document. The required documentation was received on January 25th. The San Jose Evergreen Community College District Purchasing Department published the Notice of Intent to Award on January 29, 2013. Alcal Specialty Contracting, Inc. protested the Notice of Intent to Award shortly thereafter on the grounds that failure to include Construction Careers Program Agreement Document created unfair bidding advantage to Waterproofing Associates, Inc. Under the advisement of San Jose Evergreen Community College District Legal Counsel the San Jose Evergreen Community College Purchasing Department rejected the protest of Alcal Specialty Contracting, Inc.. on January 30, 2013

Bid Results – SJCC Jaguar Gym Roof  

Measure G-2010 San Jose City College Jaguar Gymnasium Roof Replacement Project

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January 30, 2013 Alcal Specialty Contracting, Inc. Attn: David Hoerner 42950 Osgood Road Fremont, CA 94539 RE: Bid Document G2010.0039 San Jose City College Jaguar Gymnasium Roof Replacement Project Dear Mr. Hoerner: I am responding to the Alcal Specialty Contracting, Inc. bid protest letter dated January 28, 2013. The apparent lowest responsive and responsible bidder for Bid Document G2010.0039 is Waterproofing Associates, Inc. Waterproofing Associates, Inc. did not submit its signed Appendix A and Appendix B of the District’s Construction Careers Agreement with its bid. Therefore, the Alcal Specialty Contracting, Inc. protest letter asserts “Failure to include said documents creates unfair bidding advantage” and made the bid non-responsive. Prior to 12:00 PM on the following day January 25, 2013, Waterproofing Associates, Inc. promptly submitted the Construction Careers Agreement with the signed Appendixes to the District’s Purchasing Department (see attached). The Purchasing Department has consulted with the District’s legal counsel regarding the Alcal Specialty Contracting, Inc. bid protest letter and Waterproofing Associates, Inc. oversight. It is the opinion of the District’s legal counsel, Mr. Phillip Jaret, that “the failure of Waterproofing Associates, Inc. to include the requisite signed Construction Careers Agreement documents with its bid, but a later curing of that shortly thereafter by Waterproofing Associates, Inc. with the executed documents, is a minor irregularity that can and should be waived by the District. It did not provide Waterproofing Associates, Inc. with a competitive advantage over the other bidders. In fact, there appears to be no dispute as to scope or price.” Additionally, Mr. Jaret does not agree with the Alcal Specialty Contracting, Inc. contention that “failure to include said document creates unfair bidding advantage,” especially since the oversight was immediately cured. The District concurs with Mr. Jaret's recommendation. The controlling law is as follows:

1. A defect in a bid cannot be waived if the defect would have given the bidder the right to withdraw its bid due to mistake. (Valley Crest Landscaping Inc. v. City Council (1996) 41 Cal.App.4th 1432.)

Measure G-2010 San Jose City College Jaguar Gymnasium Roof Replacement Project

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2. A defect in a bid cannot be waived if the defect affects the amount of the bid by giving the bidder an advantage not enjoyed by other bidders (Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897.)

3. Waiver of a minor defect in a bid is up to District’s discretion. (MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359.)

Therefore, I will submit an agenda item to the Board of Trustees for action at its meeting on February 12, 2013. The agenda item will recommend that the Board waive the minor irregularity in the Waterproofing Associates, Inc. bid response, deny the bid protest submitted by Alcal Specialty Contracting, Inc., and authorize award of a contract pursuant to Bid Document G2010.0039 San Jose City College Jaguar Gymnasium Roof Replacement Project in the amount of $966,218.00 to Waterproofing Associates, Inc. Pursuant to Document 00 21 13 – Instruction to Bidders, Paragraph 25, action by the District’s Board of Trustees relative to a bid protest shall be final and not subject to appeal or reconsideration by the District, any employee or officer of the District, or the District’s Board of Trustees. Thank you for bringing your concerns to our attention. We encourage Alcal Specialty Contracting, Inc. to participate in future bid opportunities at San Jose Evergreen Community College District. Sincerely, Carlos Marques Purchasing Agent San Jose Evergreen Community College District (408) 270-6431 carlos.marques@sjeccd.edu

Encl. Executed Construction Careers Appendix A & B

cc: Mr. Phil Jaret

Mr. Alex Munro

Mr. Scott Jewell

Mr. Greg Nelson

Mr. Anthony Oum

Mr. Peter Fitzsimmons