At
tachment C
MEP Fusion Protest Response
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November 4, 2025
Via Email: [email protected]
Peter Tauscher, P.E.
Public Works Department
City of Newport Beach
Phone: 949.644.3316
Re: Response to Protest – Contract No. 9959-1
Project: Peninsula Fire Station No. 2 – HVAC Retrofit
Dear Mr. Tauscher,
MEP FUSION respectfully submits this response to AC Pros Inc.’s protest regarding our low, responsive bid for Contract No. 9959-1. The protest mischaracterizes the bid-time requirements and relies on speculative cost assumptions not contained in the Contract Documents. For the reasons below, we request the City deny the protest and proceed with award to MEP FUSION.
1) Subcontractor listing at bid time
California Public Contract Code §4104 requires listing only for subcontractors “who will perform work in an amount in excess of one-half of one percent of the contract.” Where a bidder intends to self-perform portions of work, no subcontractor is listed for that portion.
The City’s “Designated Subcontractors’ Affidavit” mirrors this framework and recognizes the bidder may self-perform. The protest provides no contract requirement obligating bidders to list roof or TAB firms at bid time irrespective of value, nor does it establish that MEP FUSION will, in fact, subcontract those portions above the statutory threshold. Its dollar figures are third-party quotes attached to the protest, not binding evidence of our means, methods, or internal cost allocations on a lump-sum bid. 2) Roofing/warranty coordination (Spec 07 51 00)
Specification 07 51 00 §1.4.E requires the installer to be licensed or certified by the manufacturer at the time of performance to maintain warranty coverage. This is a performance qualification, not a bid-time submission requirement. The roof carries an active manufacturer warranty and the contractor must coordinate with the manufacturer to avoid invalidation when performing tie-ins; the documents do not require naming a certified roofer at bid. MEP FUSION will comply by coordinating with the manufacturer and utilizing an appropriately certified installer to execute any tie-ins and curb flashings in full conformance with the specifications and warranty requirements. The protest relies on a voluntary roofer quote to claim the roofing portion exceeds the listing thresholdŠagain, a speculative assumption about our execution plan and pricing under a lump-sum bid. 10-35
3) TAB scope (Spec 23 05 93)
Specification 23 05 93 §1.5.A requires engaging an AABC-certified TAB entity to perform TAB. Like the roofing item above, this is a performance requirement verified during submittals and execution. The specification does not mandate identifying an AABC firm at bid time, and nothing in the Contract Documents converts that qualification into a per se bid-time responsiveness issue. The protest again cites its own outside quote to speculate that TAB necessarily exceeds 0.5% of the contract. Our lump-sum bid does not disclose line-item pricing, and the protest™s conjecture cannot be used to re-engineer our internal allocations or to invalidate our right to self-perform or procure qualified services in compliance with the specifications post-award. MEP FUSION will meet the AABC certification requirement as specified.
4) No basis to deem the bid non-responsive
A bid is non-responsive only if it fails to conform in all material respects to the invitation.
The protest does not identify any Invitation for Bids provision requiring bidders to list (at bid time) a roofing manufacturer-certified installer or an AABC TAB firm regardless of value, nor does it show that our bid conditioned performance, took exceptions, or failed to acknowledge addenda. Its arguments rest on speculative cost breakouts and misread the specifications™ performance-phase qualifications as bid-time listing mandates. Under California law and the City™s own forms, such performance qualifications are evaluated via submittals and contract complianceŠnot as grounds to reject the low bid.
MEP FUSION appreciates the City™s careful stewardship of public funds and confirms we will fully comply with all specification requirements, including warranty coordination with the roofing manufacturer and engagement of an AABC-certified TAB entity during execution. We therefore request that the City deny the protest and proceed with award to MEP FUSION as the lowest responsive, responsible bidder. 5) General contractor self-performance authority (Class “B”) MEP FUSION also holds a California Class “B” – General Building Contractor license. Under California Business & Professions Code § 7057(a), a general building contractor is defined as one whose work on a structure “requires in its construction the use of at least two unrelated building trades or crafts, or to do or superintend the whole or any part thereof. ” Section §
7057(b) further provides that a Class “B” contractor may take a prime contract involving trades other than framing/carpentry when the prime contract requires at least two unrelated trades, or the contractor holds the appropriate specialty classification or subcontracts to appropriately licensed specialty contractors. CSLB’s own guidance confirms that a “B” contractor may enter such a contract and self-perform the work with its own forces when the project includes two or more unrelated trades. In this project—
mechanical, electrical, and structural/support
scopes—MEP FUSION is authorized to self-perform under its Class “B” license and will subcontract any portions that legally require a separate specialty classification, ensuring full compliance.
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Respectfully,
MEP FUSION.
Adel Aziz
Principal
[email protected]
818.288.7338
Encl.: None
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