Via email
[email protected]
January 24, 2022
Alex Kushner
Alex Kushner General Inc.
2364 Funston Avenue
San Francisco, CA 94577
Re: City of San Pablo | San Pablo Police Annex Project (CIP Project No. SPPD21) Response to Bid Protest
Dear Mr. Kushner:
This letter responds to your bid protest against Cal Pro Service Corp (“Cal Pro”), the apparent low bidder, and US Engineering Inc (“US Engineering”), the second low bidder, for the above-referenced public works project (the “Project”). Your protest, received by the City on January 7, 2022, generally alleges that both Cal Pro’s and US Engineering’s bids are nonresponsive because they do not list certain subcontractors for the Project and are not otherwise certified to perform, or capable of performing, certain work. Cal Pro has submitted a written response, a copy of which is attached, addressing the issues raised in your protest. I have concluded that your protest lacks merit, based on the following analysis.
A. Protest of Cal Pro’s Bid
Your protest alleges that Cal Pro’s bid is nonresponsive because Cal Pro has failed to list an HVAC mechanical subcontractor on its Subcontractor List Form and is not otherwise licensed or certified to perform the HVAC mechanical work because it has a Class B license and does not have a U.S. EPA certificate. This argument lacks merit.
This issue pertains to compliance with the Subletting and Subcontracting Fair Practices Act (the “Act”), Public Contract Code section 4100 et seq. Section 4104 of the Public Contract Code requires prime contractors to include with any bid to a public agency a list of those subcontractors who will perform a portion of the work in an amount in excess of one-half of 1 percent of the total bid. Section 4106 of the Public Contract Code further provides as follows:
“If a prime contractor fails to specify a subcontractor…, the prime contractor agrees that he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shall perform that portion himself or herself.” Thus, under the Act, we are required to assume that, by not listing a subcontractor for HVAC mechanical work, either Cal Pro is representing that it is qualified and intends to perform S T R E E T , S U I T E , O A K L A N D , C A 9 4 6 0 7 F A X : 5 1 0 . 2 3 8 . 1 4 0 4M A I N : 5 1 0 . 2 3 . 1 4 0 0 W W W . J A R V I S F A Y . C O M
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Alex Kushner
January 24, 2022
that work, or it intends to subcontract out the work for an amount of less than one-half of 1 percent of its bid price.
Cal Pro’s response to the protest confirms that this is the case. In its response, Cal Pro indicates that it has a quote from a subcontractor for the HVAC labor that amounts to less than one-half of 1 percent of the bid price and that it will be responsible for providing the HVAC system and all equipment and materials.
Moreover, under well-established California law, issues of responsiveness are determined based on the face of the bid, without any outside investigation. (Great West Contractors, Inc. v.
Irvine Unified School District(2010) 187 Cal.App.4th 1425, 1453-54; D.H. Williams Construction, Inc. v Clovis Unif. Sch. Dist. (2007) 146 Cal.App.4th 757, 764-65.) The bid documents do not expressly require the bidders to list subcontractors for HVAC mechanical work, nor do they require bidders to submit evidence of a U.S. EPA certificate. Therefore, the fact that Cal Pro has not listed a subcontractor for this work or provided proof of an EPA certificate does not render its bid nonresponsive. Additionally, the bid documents expressly require a Class B license, and thus, Cal Pro is properly licensed for the Project. Looking strictly at the face of the bid, the law requires us to assume that Cal Pro is qualified and will self-perform the work or that it intends to subcontract for less than one-half of 1 percent of its bid price.
The City may not reject Cal Pro’s bid as nonresponsive based on mere speculation that it might violate the Act after it is awarded the contract for the Project. If Cal Pro subsequently violates the Act by entering into a subcontract with an unlisted subcontractor for an amount in excess of one-half of 1 percent of its bid price, the City could take remedial action by cancelling the contract or assessing a penalty pursuant to Public Contract Code section 4110. (See D.H.
Williams, supra, 146 Cal.App.4th at 766.)
B. Protest of US Engineering’s Bid
With respect to US Engineering, your protest similarly alleges that US Engineering’s bid is nonresponsive because it has failed to list subcontractors and claims that US Engineering does not have any employees, which, presumably, is an attempt to demonstrate that US Engineering cannot perform the work itself. The above analysis applies with equal force to these allegations:
Under the Act, we are required to assume that, by not listing subcontractors, either US Engineering is representing that it is qualified and intends to perform the work, or it intends to subcontract out the work for an amount of less than one-half of 1 percent of its bid price.
C. Conclusion
Based on the foregoing, I have determined that your protest lacks legal merit and therefore, encourage you to withdraw your protest. City staff intends to recommend award to Cal Pro as the apparent low, responsive bidder, and will also recommend rejection of your protest based on lack of merit, unless your protest has been withdrawn before this matter is submitted to the City Council. This matter is scheduled to be on the agenda for the City Council’s February 7, 2022 meeting. The agenda and meeting materials will be posted online 72 hours in advance of Alex Kushner
January 24, 2022
the meeting at https://sanpablo.legistar.com/Calendar.aspx. The City appreciates your interest in the Project.
Very truly yours,
Christina Lawrence
Enclosure: Cal Pro’s Response
c: Oscar Moreno ([email protected])
Timote Manoa ([email protected])
CAL PRO SERVICE CORP
17934 DEL MONTE AVENUE
MORGAN HILL, CA 95037
PHONE: (408) 313-5591
[email protected]
DIR: 1000651861
LIC: 1066867
To:
City of San Pablo, City Clerk’s office: [email protected] Taylor: [email protected] Alex Kushner General Inc. Attn: : [email protected] San Pablo Police Annex project # CIP CPPD21
Response to protest
We have carefully reviewed the "bid protest" from Alex Kushner General Inc., consulted with our attorney's office, and also contacted our subcontractors, and reviewed again their proposals.
In Alex Kushner General Inc. letter, they contend that the lowest apparent bidder, Cal Pro Service Corp. submitted a non- responsive bid because it did not show the HVAC subcontractor in the subcontractor list.
Our response is that according to the California law (Public Contracts Code Section § 4106) and bid documentation requires to lista "subcontractor that will perform work or service or fabricate or install work for the prime contractor in excess of one- half of 1% of the bid price, using the subcontractor list form included with the contract documents". We have a quote from our subcontractor for their labor which amounts forless than one-half of 1% of the bid price, and Cal Pro Service Corp not obliged to indicate this sub in the bid documents (Subcontractor List) and also Cal Pro Service Corp will be responsible to provide the HVAC system and all equipment and all materials.
Also, Cal Pro Service Corp., has fully experienced, trained and certified HVAC mechanical systems employees. Cal Pro Service Corp fully understands the HVAC scope of work and guarantees fully compliance and successful completion.
Furthermore, per our own investigation, we have found that Kuh er's subcontractors listed are part of the same affiliated company which we believe contradicts the non-collusion declaration. (See attachment #1 Facts sheet and affiliated). VPAV GENERAL PARTNERSHIP company, that affiliated with Mr. Kushner doesn't have any HVAC or C-20 License. But Mr. Kushner show his affiliated company VPAV GENERAL PARTNERSHIP as an HVAC contractor (which is not true, see CSLB LIC CHECK) They declared that they have 35 years of experience, but according CSLB records from Alex Kushner General Inc. company also shows that was created on 09/10/2015.
We clearly understand that the city reserves the right to reject any bid protest that it determines lacks merit, to award the contract to the bidder it has determined to be the responsible bidder submitting the lowest responsive bid and to issue a notice to proceed.
Cal Pro Service Corp fully understands the Scope of Work, SPPD ANNEX project # CIP CPPD21 and guarantees fully compliance and successful, on time completion.
Oscar Moreno______________________________/PRESIDENT/CEO
CAL PRO SERVICE CORP
DATE:01/10/2021
Responseto protest