www.slurry.com
P.O. BOX 981330 • WEST SACRAMENTO, CA 95798, USA • PHONE (916) 373-1500 FAX NO. (916) 373-1438 • CONTRACTOR’S LICENSE NO. 293727A
4/24/2023
Edward Nakayama, Senior Civil Engineer
39550 Liberty Street
Fremont, CA 94538
RE: 2023 Cape and Slurry Seal Project
SUBJECT: Bid Protest Response
Dear Mr. Nakayama,
VSS International, Inc. (VSSI) has received and reviewed American Pavement Systems (APS) letter dated April 24, 2023, and strongly disagrees with their position. As we will show, APS’s protest letter is factually inadequate and lacks merit. APS claims are not only categorically untrue, but they also took no steps to seek all the facts before making a frivolous protest that in turn could delay the construction project for the City of Fremont.
All the while conveniently requesting the City to make an award to them, by proxy assuming they are similarly listed as the main sub-contractor in Doolittle Construction’s bid documents as they were in Dryco Construction’s bid documents.
Contrary to the insidious accusations of APS, VSSI did acknowledge and confirmed the receipt of Addendum #1 by marking “1” next to the appropriate addendum received, signed, dated, and turned in the sealed proposal including the acknowledgement of the addendum attached to our bid prior to 2pm on the bid date. As a matter of clarification, the use of Addendum #1 is self-evident, as VSSI replaced the Bid Item Schedule with the schedule that was attached to Addendum #1. This is easily proven and found by not only comparing the bid items to the addendum issued, but it is also marked Addendum #1 in the top left corner of the bid documents that VSSI turned in on bid day prior to 2pm.
We would like to point out respectfully, that the use of “material change” as outlined in APS’s letter in our opinion is categorically untrue and completely taken out of context.
As defined by the Public Contract Code 4104.5 (b):
As used in this section, the term "material change" means a change with a substantial cost impact on the total bid as determined by the awarding agency.
Therefore, there must be a substantial cost impact to our “total” bid as outline above for this to be true. Emphasis added, VSSI would have to submit a bid on the original bid item documents for this to be true. The City can attest for itself that our bid was made using Addendum #1, our proposal was dated, signed, and sealed prior to the bid deadline and therefore no material change happened, and we are bound by the terms of the agreement.
We stand behind our bid ready to build the work for the same cost as documented in our bid, including the content in Addendum #1 our number has not changed materially.
Lastly, VSSI is extremely disappointed that APS’s Bid Protest was received by the City as a valid Bid Protest to begin with. In Section 12 Notice to Bidders, it states that any bid protest must comply fully with the protest procedures. Which would include Section 12.3 Copy to Protested Bidder. APS upon submission of its bid protest to the City did not concurrently transmit the protest to VSSI or to our knowledge any other bidder who has a reasonable chance to receive an award depending on the outcome of the protest. It goes on to state that these procedures are mandatory and the failure to comply will constitute a waiver of any right to protest.
Specifically, in section 12.6 Exclusive Remedy states:
The procedure and time limits set forth in this Section are mandatory and are the bidder’s sole and exclusive remedy in the event of bid protest. A bidder’s failure to comply with these procedures will constitute a waiver of any right to further pursue a bid protest, including filing a Government Code Claim or initiation of legal proceedings.
For this reason, we request that APS bid protest be seen as moot, and not received by the City. Furthermore, if the City does receive APS’s bid protest as valid, we request that the outcome at best, is nonmaterial and an inconsequential irregularity under its rights in Section 13 of the Notice to Bidders and award to VSSI.
VSS International, Inc. believes it is the lowest responsive bidder. We are looking forward to working with the City in the months ahead. If you have any questions or need additional information, please contact me at 916-502-4463.
Sincerely,
Rick Cross,
Estimating & Development Manager
VSS International, Inc.