City Response Letter to J&A Bid Protest Page 1 of 2 Project #E1268-22C
CITY OF MANHATTAN BEACH PUBLIC WORKS
ENGINEERING DIVISION
3621 Bell Avenue, Manhattan Beach, CA 90266
WEBSITE: www.manhattanbeach.gov PHONE: (310) 802-5353 FAX: (310) 802-5351 TDD: (310) 546-3501
November 10, 2022 Via Electronic Mail
Miguel Miranda, President
J&A Engineering, Corp. (dba J&A Fence)
824 N Todd Ave
Azusa, CA 91702
Re: City of Manhattan Beach Response to Bid Protest Letter dated 11-02-202 (Bid No. E1268-22C)
Dear Mr. Miranda,
The City of Manhattan Beach (City) received a letter dated November 2, 2022 on behalf of J&A Engineering Corp. dba J&A Fence (J&A) protesting the bid submitted by the apparent low bidder Applied Restoration, Inc. (API) for the Pier Railing Replacement Project (Bid No. E1268-22C).
The protest alleges that API “was unlicensed at the time of bid and is therefore unresponsive.” J&A’s protest contends that API’s ”bid is void and its bid must be rejected.”
City staff notified API of the bid protest and received a formal response from API on November 7, 2022. API asserts the underlying issue was the result of the Contractor State License Board’s (CSLB) delay in updating its website. J&A was provided a copy of that response, and submitted a supplemental response on November 9, 2022, maintaining its position that API was not licensed at the time of its bid submission and renewed its request that API’s bid be rejected.
The City has determined that API has an active license issue date of September 17, 2021 and a contractor’s bond effective date of October 19, 2022 as confirmed in API’s response letter, and as verified on the CSLB’s website. Furthermore, the City deemed the CSLB’s temporary contractor’s bond suspension note as an immaterial minor deviation because the CSLB website shows API had an active license and contractor’s bond as of October 19, 2022, predating its bid package submission on October 31, 2022. The deviation does not affect the bid amount, did not limit or change the terms of the contract, and did not provide the bidder with an unfair advantage. It is, therefore, within the City’s discretion to waive the immaterial deviation.
City Response Letter to J&A Bid Protest Page 2 of 2 Project #E1268-22C Based on the above, the City found that the protest by J&A was without merit and per the Notice Inviting Bids, the City reserves the right to waive any irregularities or informalities in any bid or in the bidding process, as deemed to be in the best interest of the City.
The City of Manhattan Beach thanks J&A Engineering Corp. for its interest in bidding on City projects.
The City looks forward to J&A’s continued interest in its projects. Should you have any questions or need additional information, please contact me at [email protected] or at (310) 802- 5356.
Regards,
Gilbert Gamboa
Principal Civil Engineer
Enclosures:
Bid protest letter dated 11/2/2022
Applied Restoration, Inc. response letter dated 11/7/2022 J&A Engineering Corp. supplemental response email dated 11/9/2022 CSLB Contractor’s License Detail for Applied Restoration, Inc.
301 North Lake Avenue, 7th Floor • Pasadena, CA 91101-1807 • Voice: (626) 440-5200 • Fax: (626) 796-0107 • www.huntortmann.com LAURENCE P. LUBKA
Senior Counsel
E-mail: [email protected]
7742.002
November 2, 2022
VIA FEDEX
Katherine Doherty
City Engineer
City of Manhattan Beach Public Works -
Engineering Division
3621 Bell Avenue
Manhattan Beach, CA 90266
Re: Pier Railing Replacement Bid
Project Number D-929, Bid Number E1268-22C
Dear Ms. Doherty:
I represent J & A Engineering Corp., the second low bidder on the subject solicitation. The apparent low bidder on the Solicitation was Applied Restoration. The low bidder by $7,010 was unlicensed at the time of bid and is therefore unresponsive. As a result, Applied Restoration's bid is void and its bid must be rejected.
The City of Manhattan Beach's (hereinafter the "City") states in the subject solicitation under LICENSES "Each Bidder shall possess a valid Class A Contractor's license issued by the California State Contractors License Board at the time of the Bid submission , …" (Emphasis added.) Applied Restoration's license was suspended at the time of its bid. The solicitation requirement is enforceable as set forth in the solicitation. It creates a requirement to which bidders must be responsive.
The bid deadline was 11 am Monday October 31, 2022. Mike Miranda of J & A Engineering Corp. confirmed on that date that the CSLB listing showed Applied Restoration's license was suspended on bid day. I have today, one day later, printed out a copy of the entry for Applied Restoration, which is attached as Exhibit "A". Applied Restoration was not licensed at the time of its bid submission. Applied Restoration's bid must be rejected. Its bid was non- responsive.
See Business and Professions Code § 7071.6 stating "The board shall require as a condition precedent to the issuance, reinstatement, reactivation, renewal, or continued maintenance of a license, that the applicant or licensee file or have on file a contractor's bond in the sum of fifteen City of Manhattan Beach
Bid Protest
thousand dollars ($15,000). The CSLB website shows that Applied Restoration was suspended on October 31, 2022.
The bid requirement is clear and cannot be waived as a minor irregularity, as doing so would give Applied Restoration with the ability to assert its lack of licensure to avoid its bid or claim that it is entitled to an award. Under Valley Crest Landscape, Inc. v. City Council of Davis, 41 Cal.App.4th 1432 (1996) such an irregularity cannot be waived.
Although the suspension notation in the CSLB's notation of a suspension, makes note of a possible retroactive lifting of the suspension, what will happen in the future is speculative and not relevant to this protest. What is not speculative is that Applied Restoration was not properly licensed at the time of its Bid, October 31, 2022.
The City's solicitation does not include a bid protest procedure. This bid protest will have been served on the City within 3 days of the bid, which is a prompt protest by any measure.
J & A Engineering Corp. is prepared to provide whatever additional information the City requires to consider this bid protest. J & A Engineering is prepared to obtain a certified record of the suspension, but notes that it could take several days to obtain a certified record to confirm that suspension.
J & A Engineering requests a written response to this bid protest.
In the event the City does not reject the Applied Restoration bid, J & A Engineering Corp. requests that the City inform my office on the date, time and location when award is contemplated, as Applied Restoration will in that event, appear before the City Council to present its position.
I thank you in advance for your full consideration of this bid protest.
Very truly yours,
LAURENCE P. LUBKA, ESQ.
LPL:lpl
Enclosure: CSLB License Listing for Applied Restoration
cc: J & A Engineering Corp.
Applied Restoration (Via FedEx)
EXHIBIT A
irCONTRACTORS STATE LICENSE BOARI • F
OContractor's License Detail for License #
1081367
DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations.
• CSLB complaint disclosure is restricted by law (B&P 7124.6) If this entity is subject to public complaint disclosure click on link that will appear below for more information. Click here for a definition of disclosable actions.
Only construction related civil judgments reported to CSLB are disclosed (B&P 7071.17), Arbitrations are not listed unless the contractor fails to comply with the terms. • Due to workload, there may be relevant information that has not yet been entered into the board's license database.
Data current as of 11/1/2022 1:40:08 PM
Business Information
APPLIED RESTORATION INC
1965 GILLESPIE WAY STE 104
EL CAJON, CA 92020
Business Phone Number:(619) 433-4701
Entity Corporation
Issue Date 09/17/2021
Expire Date 09/30/2023
License Status
License is under suspension for the following reasons:
o License is under Contractors Bond Suspension. A contractor's bond may have been received by the Board but not yet processed. Once the bond is processed the suspension will be lifted retroactively to the effective date of the bond. Ask the contractor for proof of a contractor's bond and contact the bonding company to verify bond status.
Classifications
P A- GENERAL ENGINEERING
B- GENERAL BUILDING
▪ 03 - PAINTING AND DECORATING
o 09 - ROOFING
Bonding Information
Contractor's Bond
This license filed a Contractor's Bond with SURETEC INSURANCE COMPANY.
Bond Number: 147391
Bond Amount: $15,000
Effective Date: 00/19/2021
Cancellation Date: 10/19/2022
Bond of Qualifying Individual
The qualifying individual LARRY MICHAEL WHITE certified that he/she owns 10 percent or more of the voting stock/membership interest of this company; therefore, the Bond of Qualifying Individual is not required.
Effective Date: 09/17/2021
Workers' Compensation
Upon request of the City, the Bidder shall furnish evidence showing a notarized financial statement, financial data, construction experience, or other additional information.
Failure to provide truthful answers to the questions above or in the following References Form may result in the Bid being deemed non-responsive.
Urban Runoff Certification. The Bidder certifies to the City that he/sne has trained his/her employees and Subcontractors, if any, for Urban Runoff management and has included sufficient sums in the Bid Price to cover such costs of training as stipulated in the most current Regional Water Quality Control Board requirements, including the Municipal Separate Storm Sewer System National Pollutant Discharge Elimination System (NPDES) Permit. The Contractor is responsible for all clean up and payment of all fines levied as a result of any illegal di charge (as defined in NPDES permit) occurring as a result of the Contractor's Work and/or operations.
I, the undersigned, certify and declare that I have read all the foregoing answers to the Bidder's Proposal — Contractor's Statement and know their contents. The matters stated in the Bidder's Proposal — Contractor's Statement answers are true of my own knowledge and belief, except as to those matters stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is correct.
Company
Signature: PliGmel Yh.iva►4o.
Name: Miguel Miranda
Title: Owner
Date: 10/31/22
Signature:
Name:
Title:
Date:
12100-000112654178v1-cloc
City of MB Form
B-17
wurKers compensation insurance with the INSURANCE COMPANY OF THE WEST Policy Number:WSD505321102
Effective Date: 01/10/2022
Expire Date: 01/10/2023
Workers' Compensation History
Other
1, Personnel listed on this license (current or disassociated) are listed on other licenses.
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Accessibility Certification
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Conditions of Use
Accessibility
www.appliedrestoration.com
Building Envelope Systems•Exterior Restoration•Plaster and EIFS Systems Waterproofing•Caulking•Coatings•Structural Restoration•Concrete Polishing CA License #: 1081367
San Diego Office
1965 Gillespie Way Suite 104
El Cajon, CA 92020
Tel: 619.433.4701
Fax: 619.499.7572
CONFIDENTIAL
Attn:
From: Date: 11/07/2022
1965 Gillespie Way Suite 104
El Cajon, CA 92020
Phone: (619) 433-4701
CA License#: 1081367
Oscar Bianchi
Gilbert Gamboa City of Manhattan Beach
RE: Dispute Letter
www.appliedrestoration.com
Building Envelope Systems•Exterior Restoration•Plaster and EIFS Systems Waterproofing•Caulking•Coatings•Structural Restoration•Concrete Polishing CA License #: 1081367
San Diego Office
1965 Gillespie Way Suite 104
El Cajon, CA 92020
Tel: 619.433.4701
Fax: 619.499.7572
Re: Dispute Letter
In regards to the dispute Letter. The California State License Board did take there time to up date the Contractor Bond and has been up- dated & website is now updated showing ARI. license is active. The CSLB has the Contractor's Bond Effective Date:
10/19/2022 which is prior to bid date. There for the Dispute is null.
Below is the Link to the CSLB Lic Check to varifiy the Lic. https://www.cslb.ca.gov/OnlineServices/CheckLicenseII/LicenseDetail.aspx? LicNum=1081367
Signature: _______________________Date__________
Name:________________________________
Title: _________________________________
11/07/2022
Oscar Bianchi
CFO
1 Gilbert Gamboa
From: Larry Lubka <[email protected]>
Sent: Wednesday, November 9, 2022 2:47 PM
To: Gilbert Gamboa; '[email protected]'
Cc: 'Oscar Bianchi'; Katherine Doherty, P.E., ENV SP; 'Mike Miranda'; '7742_002 J _ A Engi _ City of Ma E_mail'
Subject: [EXTERNAL] RE: Project Number D-929, Bid Number E1268-22C [IWOV- HOBPR.FID409474]
EXTERNAL EMAIL: Do not click links or open attachments unless you trust the sender and know the content is safe.
I am in receipt of the "Dispute Letter" dated November 7, 2022 from Applied Restoration with regard to the J & A Engineering Corp Bid Protest of November 2, 2022 regarding Bid Number E1268- 22C.
The Applied Restoration letter appears to be an admission that it was not licensed at the time of the its bid to the City of Manhattan Beach, by admitting that the CSLB "did take there time to up date the Contractor Bond" and that the CSLB has only now updated the CSLB website. Applied Restoration fails to state when its unlicensed status changed.
Nothing in Applied Restoration letter addresses the issue that it needed to be licensed at the time that it bid pursuant to the solicitation. The requirement is simple and the failure of Applied Restoration to address the actual issue is a further admission that there is no argument that can be made that Applied Restoration was licensed on October 31, 2022. It was not licensed when it bid and Applied Restoration has provided no information that shows that it was licensed on October 31, 2022.
While it is good for Applied Restoration that the CSLB subsequently removed the suspension, so that it can bid on future projects, but that does not rescue it from its failure.
The retroactive removal of the suspension does not change the reality that on October 31, 2022 Applied Restoration was not licensed. The CSLB cannot reinvent time, it can only state for the record that it will not punish Applied Restoration for its actions or inaction with regard to its failure to timely provide an updated license bond. That is purely an administrative matter.
No one directed Applied Restoration to wait too long to provide the renewal of its license bond and no one directed Applied Restoration to submit a bid to Manhattan Beach while it was unlicensed.
J & A Engineering Corp. renews its request that the Applied Restoration bid be rejected.
Larry P. Lubka
Senior Counsel
Hunt Ortmann Palffy Nieves Darling & Mah, Inc.
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101-1807
p: 626-440-5200 f: 626-796-0107
www.huntortmann.com
2 From: Gilbert Gamboa <[email protected]>
Sent: Wednesday, November 9, 2022 11:33 AM
To: [email protected]
Cc: Oscar Bianchi <[email protected]>; Larry Lubka <[email protected]>; Katherine Doherty, P.E., ENV SP <[email protected]>
Subject: RE: Project Number D-929, Bid Number E1268-22C [IWOV-HOBPR.FID409474]
Mimecast Attachment Protection has deemed this file to be safe, but always exercise caution when opening files. *** EXTERNAL EMAIL: be careful when opening links and attachments ***
Dear Mr. Miranda,
In a follow-up to the Bid Protest submitted by J&A Engineering Corp. regarding the subject project, the City has provided the apparent low bidder (Applied Restoration, Inc.) an opportunity to respond to the details of the protest.
The City is currently reviewing all bids received, reviewing the bid protest(s), and the responses from the affected parties. For your reference, I have attached the response letter received from the apparent low bidder, Applied Restoration, Inc., regarding the protest.
Thank you,
GILBERT GAMBOA
PRINCIPAL CIVIL ENGINEER
(310) 802-5356
[email protected]
CITY OF MANHATTAN BEACH 3621 Bell Avenue Manhattan Beach, CA 90266 Office Hours: M-Th 7:30 AM-5:00 PM | Closed on Friday
Reach Manhattan Beach
Use our click and fix it app 24/7 for non-emergency requests Download the mobile app now
From: Katherine Doherty, P.E., ENV SP <[email protected]> Sent: Thursday, November 3, 2022 3:32 PM
To: Gilbert Gamboa <[email protected]>
Subject: FW: Project Number D-929, Bid Number E1268-22C [IWOV-HOBPR.FID409474]
Hi Gil,
Please see attached.
-Katie
3 KATHERINE DOHERTY, P.E., ENV SP
CITY ENGINEER
(310) 802-5352
[email protected]
CITY OF MANHATTAN BEACH 3621 Bell Avenue Manhattan Beach, CA 90266 Office Hours: M-Th 7:30 AM-5:00 PM | Closed on Friday
Reach Manhattan Beach
Use our click and fix it app 24/7 for non-emergency requests Download the mobile app now
From: Vanessa Hobdy <[email protected]>
Sent: Wednesday, November 2, 2022 4:04 PM
To: Katherine Doherty, P.E., ENV SP <[email protected]> Cc: Larry Lubka < >; '7742_002 J _ A Engi _ City of Ma E_mail' <{F409474}[email protected]> Subject: [EXTERNAL] Project Number D-929, Bid Number E1268-22C [IWOV-HOBPR.FID409474]
EXTERNAL EMAIL: Do not click links or open attachments unless you trust the sender and know the content is safe.
Dear Ms. Doherty,
At the request of Mr. Lubka, I am forwarding the attached correspondence of today’s date. The original will follow via FedEx.
If you are unable to open the attachment, please let me know.
Thank you.
Hunt Ortmann Palffy Nieves Darling & Mah,
Inc.
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101-1807
Vanessa Hobdy, CCLS
Legal Secretary
p: 626-440-5200 www.huntortmann.com
f: 626-796-0107 Download v-Card
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