CLF
COPELAND LAW FIRM, APC
19201 Sonoma Hwy., Suite 106 ofc: 424/234-9701
Sonoma, California 95476 email: [email protected]
Via U.S. Mail and Email
December 23, 2022
Mr. Craig Scott, Public Works Director/City Engineer
City of Cotati
201 West Sierra Ave.
Cotati, CA 94931-4217
[email protected]
Re: Protest of JV Lucas Paving, Inc. Bid for Downtown Civic Center Connectivity and Safety Project
Dear Mr. Scott:
This office generally represents Argonaut Constructors ("Argonaut"), the second low bidder for the above contract. Please accept this letter as formal protest by Argonaut of JV Lucas Paving, Inc. 's ("Lucas") bid to the City of Cotati ("City") for the project known as Downtown Civic Center Connectivity and Safety Project ("Contract"). Argonaut specifically requests City staff to disqualify Lucas' bid and to award the Contract to Argonaut pursuant to the bid protest provisions at Section 7 of the Contract Specifications.
Lucas' bid is non-responsive in that: 1) it fails to include the entire bid package submission filled out correctly; and 2) as of the date of this letter, Argonaut has not seen any proof Lucas timely turned in its Good Faith Effort in violation of the contract bidding terms.
First, Lucas' bid has a list of subcontractors contained on pages BB31-33 which do not match the list of subcontractors on pages BB34 or BB35 in direct contradiction of the instructions on those pages, each form being separately incomplete, and also contains inaccurate percentages listed on pages BB34-35. Lucas has failed to complete a single one of these forms 3-separate times in its bid for this Contract, which is a violation of both the California subcontractor listing law and appears to jeopardize the Federal funding for this Contract if awarded to Lucas. Specifically, there is no electrical subcontractor listed on the "List of Subcontractors" on pages BB31-33, and neither that form, or BB34 or BB35 match each other. Lucas' failures violate several mandatory terms of the bidding instructions as well as California's subcontractor listing laws. The City's bidding instructions, which were affirmed by the City in response to Bidder's Technical Question No. 7, clearly provide the following:
Bids that fail to include complete proposed subcontractor information in accordance with this form and Public Contract Code Section 4100 and following may be deemed non- responsive.
In fact, Bidder Technical Question No. 7 asks:
Proposal List of Subcontractors and Exhibit 12-B Bidder's List of Subcontractors (DBE and Non-DBE) Part I and Part II - is this required at bid time or can it be submitted with the good faith effort? [emphasis added]
And the City's response thereto mandates the following:
Both the List of Subcontractors and Exhibit 12-B Bidder's List of Subcontractors (DBE and Non-DBE) are required to be submitted with the bid package at or before bid opening. [emphasis added]
Lucas failed to comply with this mandatory requirement. While Mike Brown Electric is listed on Lucas' federal form on page BB35, it is missing from the California subcontractor listing form as well as on BB34, in violation of California's subcontractor listing laws. These three defects are not curable as Lucas is not licensed to self-perform the electrical work - Lucas has a general engineering license, which does not allow for electrical work pursuant to Business and Professions Code Section 7056.
Finally, Argonaut has not seen proof that Lucas Contractor Good Faith Efforts have been submitted as of the date of this Bid Protest, which if not received by the City pursuant to the timing stated in response to Bidder's Technical Questions Nos. 5 and 6, also renders Lucas' bid incomplete and non-responsive.
The City's instructions were clear, and Lucas failed to follow them.
Under California law, a bid is non-responsive when either of the following is present:
The irregularity in a bid gives that bidder an unfair advantage over other bids or if it gives that bidder a last look at the other bids after the bid closing date in deciding whether to honor the bid; or
Waiving the irregularity would constitute favoritism to the non-responsive bidder.
See, Valley Crest Landscape, Inc. v. Citv Council, (1996) 41 Cal.App.4'h 1432; MCM Constr. v. City & County of San Francisco, (1998) 66 Cal.App.4t* 359; Ghilotti Constr. Co. v. City of Richmond, (1996) 45 Cal.App.4'' 897; Monterey Mechanical Co. v. Sacramento Reg'l County Sanitation Dist., (1996) 44 Cal.App.4"h 1391.
In this case, the cited provisions require all bidders to timely submit properly completed Subcontractor Listing Forms and Good Faith Efforts Forms. Submission of those forms was mandatory, and Lucas' failure to do so are material failures to the Contract bid, not to mention violations of California's subcontractor listing laws. The City cannot waive those failures without giving Lucas an advantage not allowed to the other bidders prior to bid submission.
Based upon the above information, Lucas' bid is non-responsive and should be disqualified.
Argonaut is willing, able, and prepared to complete the work included in the Contract as the lowest responsive bidder.
Best regards,
COPELAND LAW FIRM, APC
Steven operand, Esq.
Cc: Mr. Al Perez
JV Lucas Paving, Inc.
PO Box 2887
Martinez, CA 94553