545337.1
415.956.2828 (t) Robert Dollar Building
415.956.6457 (f) 311 California Street, 10th Flr.
San Francisco CA 94104
202.777.8950 (t) 1500 K Street, NW, Suite 800
202.347.8429 (f) Washington DC 20005
ROGERS JOSEPH O'DONNELL www.rjo.com
May 20, 2022
VIA EMAIL & OVERNIGHT MAIL
[email protected]
Jeff Chou, P. E.
Associate Engineer
City of South San Francisco, Engineering Division
315 Maple Avenue
South San Francisco, CA 94080
Re: Grand Avenue and Airport Blvd Streetscape Improvement Project PROJECT NO. ST1801, BID NO. 2671
RESPONSE TO MAY 17 LETTER
Dear Mr. Chou:
We represent CF Contracting (CFC) related to this matter. As you know, CFC was the lowest responsive bidder, and the City of South San Francisco was intending to award the Project to CF Contracting next week. There were no bid protests within the allotted time allowed by the specifications, and therefore the City should ignore the allegations made by the letter received from The Foundation for Fair Contracting (FFC), and award the contract to CFC as the lowest responsive, responsible bidder.
I. ARGUMENT
According to its own specifications, the City must award this project to the lowest responsive, responsible bidder. Notice Inviting Bids; #5 (Bids will be publicly opened, examined, and declared in accordance with item 1, and thereafter referred to the City Council for award, at a regular scheduled meeting, to the lowest responsive and responsible bidder, based on the Total Base Bid Price.”)(emphasis added). There is no question that CFC’s bid was responsive; thus, the only question before the City is whether CFC is a responsible contractor – whether it can “perform the contract as promised.” Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341. FFC makes baseless allegations without any documentary support – because mere allegations without evidence are impossible to rebut, the City should ignore the baseless claims. If the City has any doubt that CFC is a responsible contractor, I request that CFC be allowed to present evidence of its responsibility and to rebut any claims on which the City is relying.
A Professional Law Corporation
Richard M. Harris
415.365.5306 (d)
[email protected] Government Code Section 54957.5
SB 343
Agenda: 5/25/2022 Reg CC
Item # 10
ROGERS JOSEPH O'DONNELL www.rjo.com
Jeffrey Chou
Associate Engineer
City of South San Francisco, Engineering Division
May 20, 2022
545337.1
A Professional Law Corporation
FFC only provides documentation for three specific allegations – these are the only allegations to which CFC can directly respond. A review of the documents shows that none of these would cause any doubt that CFC can perform the contract as promised. As requested, I provide details on these allegations below.
A. The March 2022 Case Assignment Letter
FFC attaches a “case assignment letter” from March 2022 related to a project in Sausalito. This is the first that CFC has heard of any investigation (possibly because the investigator has found no merit to the allegations), and believes it appropriately paid all workers on that project. Curiously, FFC does not provide the underlying allegations; only a document stating that as of two months ago, an investigation is ongoing. CFC is confident that workers were paid correctly on the Sausalito project, and will respond to the investigation if the labor commissioner investigator believes the allegations rise to the level of requiring a response from CFC. This is no basis to believe that CFC will not complete the City’s project as expected.
B. Penalty Assessment from February 2021
In 2020, due to a minor oversight, CFC failed to update the wages of certain employees on a single project. Upon becoming aware of the issue, CFC quickly paid both the back wages and the penalty. Note that in the decades of public work that CFC has completed, this is the only reference that FFC could find claiming that CFC failed to pay correct wages. This one error that was rectified upon notice is no basis to deny CFC a finding of responsibility.
C. Alleged Failure to Pay Apprenticeship Fees
Contrary to FFC’s claims, CFC is connected with a certified apprenticeship program through the Association of Building Contractors and the Operating Engineer’s trust fund. CFC, therefore, does not pay apprenticeship fees to the California Apprenticeship Council directly. Thus, FFC’s letter from the California Apprenticeship Council provides no evidence that CFC is not responsible; CFC’s fees are required to go to a different organization per Cal. Lab. Code § 1777.5(m) (payments can be made to the California Apprenticeship Council or an “approved apprenticeship program”). None of this bears any weight on whether CFC can complete the work of the project as promised.
ROGERS JOSEPH O'DONNELL www.rjo.com
Jeffrey Chou
Associate Engineer
City of South San Francisco, Engineering Division
May 20, 2022
545337.1
A Professional Law Corporation
II. CONCLUSION
FFC’s letter is untimely, it makes unsupported allegations, and it relies on documents which do not support its position. The City is therefore left with its original position: CFC is a responsive, responsible bidder, and the City should award the project.
Argonaut Insurance Company agrees, and has provided a performance bond for the work and a payment bond for subcontractors. I trust that the City will award the project to CFC and receive a successful project as required by the specifications and the law.
Please contact me if you have any questions.
Very truly yours,
Richard M. Harris
RMH:sci
Enclosure