City of Hercules
111 Civic Drive, Hercules, California 94547
(510) 799-8200 www.ci.Hercules.ca.us
OFFICE OF THE CITY MANAGER
Michael Roberts, Public Works Director/City Engineer
Sent via Regular Mail
April 14, 2022
Mr. David D. McNabb
McNabb Construction, Inc.
dba DK Environmental
3527 Mt. Diablo Blvd. #306
Lafayette, CA 94549-2035
Re: Baywood Tree Replacement Project | Project No. 63052
Dear Mr. McNabb,
On April 5, 2022 the City of Hercules (“City”) received and opened bids for the above- referenced project (“Project”). Desert Parks Landscaping, Inc. (“DPL”) is the apparent low bidder. This letter responds to the bid protest received on behalf of your company, McNabb Construction, Inc., dba DK Environmental (“McNabb”), dated April 6, 2022.
The protest alleges that the bid submitted by DPL is nonresponsive based on DPL’s failure to strictly comply with the corporate signature requirements in Section 3 of the Instructions to Bidders by having the second signature on its bid form provided by an officer of the corporation.
While this minor deviation from strict compliance with Section 3 of the Instructions to Bidders may constitute a minor technical irregularity in DPL’s bid, under well-established California law the City may elect to waive such “inconsequential” irregularities:
“[I]t 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 the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential” (Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1188 (“Bay Cities”).)
DPL’s bid is guaranteed by its bid security. Legal counsel for the City has advised that the bid security is binding and enforceable regardless of DPL’s failure to strictly conform with the requirements of the Instructions to Bidders on its bid form. Moreover, this inconsequential irregularity does not affect the amount of DPL’s bid and does not give DPL a benefit not allowed other bidders.
In addition, allegations of nonresponsiveness must be evaluated from a practical rather than hypertechnical perspective and based on the public interest:
“They must also be viewed in light of the public interest, rather than the private interest of a disappointed bidder. It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal...of the low bidder after the fact, [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy.” (Bay Cities, supra, at 1189; internal quotation marks omitted.)
Based on the foregoing, the City’s legal counsel has determined that the City may elect to waive the inconsequential irregularity in DPL’s bid and award the contract for the Project to DPL as the lowest responsible bidder.
The City appreciates your interest in the Project and wishes you success in future bids.
Sincerely,
Michael Roberts
Public Works Director/City Engineer
c: Desert Parks Landscaping, Inc.
City Manager
City Attorney