Brothers Smith up
Attorneys at Law
Reply to:
Mark J. Hilliard
[email protected]
January 4, 2023
VIA ELECTRONIC MAIL AND U.S. MAIL
Mr. Craig Scott
[email protected]
Public Works Director & City Engineer
CITY OF COTATI
201 West Sierra Avenue
Cotati, California 94931-4217
Re: Response by J.V. Lucas Paving, Inc. to "Protest" by Argonaut Constructors, Inc., related to Downtown Civie Center Connectivity and Safety Project Our File No.: 60849.001
Dear Mr. Scott:
This office represents J.V. Lucas Paving, Inc. ("JVL"). We are in receipt of correspondence dated December 23, 2022 from the Copeland Law Firm, on Argonaut Constructors, Inc.'s ("Argonaut" or "Argonaut's") behalf (the "Letter"), objecting to JVL's bid on the above- referenced "Downtown Civic Center Connectivity and Safety Project" (the "Project"). Please allow this correspondence to serve as JV's response to the Letter.
Generally, Argonaut makes two (2) contentions: first, the Letter contends that JVL's bid on the Project—which the City of Cotati (the "City") has acknowledged was the lowest bid fails to comply with certain technical requirements of the bidding process at-large; and second, the Letter contends that JVL failed to submit a portion of the bid pertaining to "Disadvantaged Business Enterprises" ("DBEs").
We have reviewed and considered the points raised in the Letter, and as explained below, we have found them to be wholly without substantive merit. Accordingly, the City should decline to acquiesce to Argonaut's unilateral demand as set forth in the Letter, that the City "disqualify" JV's bid, and "award the Contract to Argonaut pursuant to the bid protest provisions". Indeed, such a demand is entirely unsupported by the facts related to JVL's properly submitted bid.
Concerning Argonaut's initial objection-that JVL failed to comply with the terms of the bidding process by failing to identically cut-and-paste the identities of all subcontractors in two (2) separate portions of the bidJVL's bid is in substantial compliance with the requirements of the bidding process. Specifically, each and every prospective subcontractor that .JVL intends to retain with respect to the Project was identified in the bid. While perhaps it is technically true that 2033 N. Main Street, Suite 720 | Walnut Creek, California 94596 | T 925 944 9700 | F 925 944 9701 www.brotherssmithlaw.com
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a subcontractor appears on one (1) of the lists (i.e., pages BB-31 and BB-32), but not in the other list (i.e., BB-34 and BB-35) (or vice versa), importantly, the fact remains that JVL has identified all of the subcontractors that JVL intends to retain for the Project; and, that JVL has done so to the City's satisfaction, as evidenced by the fact that the City has already confirmed that JVL's bid was the lowest among the bids submitted. Indeed, JVL even disclosed subcontractors that it was not required to disclose (e.g., Aliquot Associates Inc., which is a land surveyor subcontractor, is identified on BB-32 as receiving the sum of Five Thousand and 00/100 Dollars ($5,000.00), which is less than one half of one percent (> .05) of the bid total). Additionally, JVL identified certain trucking and transportation carriers on BB-34 and BB-35, which, as transportation carriers, JVL was not required to identify). This fact underscores JVL's commitment to providing a clear and complete bid, which it did here with respect to the Project.
JVL's bid, therefore, is entirely transparent. JVL's bid neither provides JVL with "an unfair advantage over other bids", nor would "waiving the irregularity [] constitute favoritism to the non- responsive bidder" " especially here where Argonaut's above-stated concern is frankly hyper- technical. Indeed, to the extent that one (1) subcontractor appears on one (1) of the lists, but not the other, this oversight was simply a product of providing a timely, yet comprehensive bid, for the City's review and approval.
Moreover, as the Letter correctly points out, the City's bidding instructions state that "Bids that fail to include complete proposed subcontractor information.:. may be deemed non- responsive." (See, Letter, end of page 1, beginning of page 2.) Here, not only did JVL include complete proposed subcontractor information, but additionally, the instructions do not state that the failure to do so "will" invalidate the bid; instead, the City chose the word "may". And here, as set forth above, the City, in determining that JVL's bid was the lowest, has already found JVL's bid to comply with the City's requirements for bidding the Project, even in light of the de minimis technicalities raised in the Letter. Thus, JVL's bid is in substantial compliance with the requirements of the bidding process, and Argonaut's concerns, which again are entirely pedantic, should be dismissed without more.
Turning then to Argonaut's second (2nd) concern regarding whether JVL submitted the "Good Faith Efforts" regarding DBEs required by the bid, we note that, on the one hand, Argonaut argues that it "has not seen proof" of these submissions, but on the other hand, argues that JVL failed to properly submit such forms. However, if Argonaut has not seen JVL's submission, how is able to conclude, as it does in the Letter, that it know that JVL failed to submit the same? Simply put, Argonaut's concern regarding JVL's submission of its Good Faith Efforts is speculative and entirely misplaced.
To begin, JVL is not obligated, legally or otherwise, to serve upon Argonaut, its Good Faith Efforts related to DBEs. Secondly, though, and perhaps most importantly, JVL served its Good Faith Efforts to the City not once but twice: JVL served its statement of Good Faith Efforts to the City, first by electronic mail dated December 26, 2022, and second by United States Certified Mail 60849.001/692776.3
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on December 27, 2022 (once the postal service resumed following the recent holiday break). If Argonaut wishes to obtain a copy of JVL's submissions, or if Argonaut simply wishes to verify this for itself, it may contact the City in order to obtain the same.
In closing, to the extent that any of Argonaut's concerns are factually correct, all such concerns appear predicated solely on technicalities that have not, in any manner, impacted the fairness or propriety of the City's bidding process. JVL, as the lowest bidder, did not submit a faulty, non- responsive, unclear, non-compliant or otherwise disqualifying bid. Rather, JVL provided complete information to the City, for the City's expert review and consideration. After the City knowledgeably and thoroughly reviewed all of the bids that were submitted, including all of the detailed information contained in each of the bids that were submitted, the City determined that JVL's bid was the lowest. Against such an undisputable factual backdrop, the Letter appears to simply be sour grapes. JVI
forth in the leer, apes hat the hit pre, ni s. to hat the diy isis the alleged concerns set.
On behalf of JVL, this office is available at the City's convenience, should the City wish to discuss all, or any part of the foregoing.
Respectfully,
BROTHERS SMITH LLP
Mark J. Hilliard
Partner
MJH
CC: Steven B. Copeland, Esq.
Copeland Law Firm, APC
(by email only, at [email protected])
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