TO: HONORABLE MAYOR FROM: NORA FRIMANN
AND CITY COUNCIL
SUBJECT: SEE BELOW DATE: April 13, 2023
SUPPLEMENTAL
SUBJECT: REPORT ON BIDS AND AWARD OF CONSTRUCTION CONTRACT FOR 9850 – YARD PIPING IMPROVEMENTS PHASE 2 PROJECT AT
THE SAN JOSE-SANTA CLARA REGIONAL WASTEWATER
FACILITY
Attached hereto is a true and correct copy of the letter sent by the Office of the City Attorney of San José to John W. Busby II, Attorney at Law, dated April 11, 2023, regarding the above-referenced subject.
NORA FRIMANN
City Attorney
By_________________________________
NORA FRIMMAN
City Attorney
Attachment
cc: Kerrie Romanow
Matt Loesch
Jim Shannon
COUNCIL AGENDA: 04/25/23
ITEM: 6.1
/s/ Nora Frimann
SAN JOSE Office of the City Attorney
CAPITAL OF SILICON VALLEY NORA FRIMANN, CITY ATTORNEY
ROSALIA BURGUENO TAPIA
Sr. Deputy City Attorney III
Direct Line: 408.535.1927
VIA FIRST CLASS U.S. MAIL & EMAIL
April 11, 2023
[email protected]
John W. Busby II
Attorney at Law, P.C.
251 Lafayette Circle, Suite 350
Lafayette, California 94549
Re: 9850 Yard Piping Improvements Phase 2 Project
Your client: Mountain Cascade, Inc.
Dear Mr. Busby:
| am in receipt of your letter dated April 7, 2023, addressed to the City Council regarding the above-referenced matter. Please be advised that it is City staff's position that the Revised Notice of Intent to Award Contract dated February 7, 2023, awarding the contract to Michels Trenchless, Inc., is proper and will not be retracted. Of course, the City Council will be voting on whether or not to approve the contract at the upcoming council meeting on April 25, 2023. It is my understanding that you will be speaking on your client's behalf during the public comment portion of the meeting, which you are welcomed to do.
Contrary to your assertions, your client’s failure to submit the documents listed in the technical specifications as required to establish their experience is not inconsequential, requiring the City to waive the omission. Experience requirements are of a material nature and cannot be waived. Even if the omission was inconsequential, pursuant to San Jose Municipal Code Section 27.10.570, the City may waive informalities or minor irregularities in bids or bidding, but it is not obligated to do so. To waive the experience documentation requirement would certainly invite a protest from Michels Trenchless, Inc., as they did fully comply with all of the bid requirements.
Additionally, City staff had another factor to consider, namely, the need to have work
200 East Santa Clara Street, 16" Floor Tower, San José, CA 95113-1905 tel (408) 535-1900 fax (408) 998-3131 2012435 _2
Re: 9850 Yard Piping Improvements Phase 2 Project
April 11, 2023
commence as soon as possible. The majority of the work for this project can only be done in the summer and it is anticipated that it will take two consecutive summers, starting this summer, so putting this out for re-bid was not feasible.
Please contact me at [email protected] with some proposed dates/times for a conference call this week if you would like to discuss this matter. | will tell you that this matter is in the hands of the City Council at this point. | am not in a position to enter into any agreements that will change the current situation.
Thank you.
Very truly yours,
NORA FRIMANN, City Attorney
Sr. Deputy City Attornéy III
RBT/ted
2012435 _2