Second, as MCM points out, the City is bound to follow the law and its own published rules. The City has done just that. As demonstrated below, the deadline for the bids was clear: The City provided a universal, published countdown clock for all bidders on the bid page. While the City has the discretion to throw out all bids, doing so here will only create a problem where none currently exists. This will jeopardize a timely award of the contract and start to the Project.
We agree with Mr. Odviar's observation and conclusion, in his October 12, 2022 email, that "after some 10+ years of use the City believes the PlanetBids system to be a solid and fair bidding system, including the cut-off time" and that "[the City does] not intend to throw out all bids and rebid the contract as MCM has requested." That is the correct course of action here.
MCM LACKS STANDING (AS DO THE OTHER UNTIMELY BIDDERS)
MCM does not demonstrate or even argue that it was harmed. There is no prejudice.
Specifically, MCM does not claim that it would have been the lowest bidder had it timely submitted its bid. For all we know, even if MCM was given much more time to submit its bid, it would still not have been the lowest bidder.
MCM strategically did not disclose or prove what its bid would have been. Instead, with the full benefit of seeing the lowest bid, the bids of four other contractors, and the valuable unit pricing data from all five bidders, MCM requests that the City improperly give it a competitive advantage by re -bidding the Project after it has seen the bids of the five timely bidders. And even worse, it has not had to disclose its own bid. Without proving standing or harm, MCM should not be heard to contend the bidding process was flawed (which it was not).
If MCM's bid, and the bids of Walsh and Security Paving Company, were higher than Flatiron's bid, then there was no harm, no prejudice, and therefore there is no benefit to the City or the public by rejecting all bids. It will only cause extra costs and substantial delay. In the event one of those three bidders are eventually awarded the contract, it will also result in an illegal contract tainted by impropriety —bidders standing on the sideline, receiving the benefit of viewing and evaluating the pricing data by the other bidders, and then using that information to their advantage for the subsequent bid.
THE CITY SHOULD DENY MCM'S REQUEST BECAUSE IT WOULD SEVERELY
PREJUDICE FLATIRON (AND THE OTHER BIDDERS) AND IT WOULD SET BAD
PRECEDENT FOR ALL BIDS MOVING FORWARD
By rejecting all bids and re -advertising the project to bid on a short timeline while making no material changes to the Project, this would allow other bidders to evaluate and utilize the proprietary bidding strategy that Flatiron used to submit a successful low bid. As it stands the bid spread from highest bidder to lowest bidder ranges over $20M and in a re -bidding scenario, this gap would close for all bidders as they would be able to determine the bidding strategies used by Flatiron to win the bid. This would put Flatiron at a significant disadvantage in a re -bid scenario and give the other bidders (and later bidders) an unfair competitive advantage.
B. Tilden Kim
October 24, 2022
Throwing out all bids based on MCM's argument would also set terrible precedent. A bidder need only submit a letter saying it was late in order to scuttle an award of a contract to its competitor. The City and other agencies would see a certain uptick in such protests, claiming that the bidder tried pressing the "Submit" button but that it didn't work in time, when it did work for other bidders. In the age of electronic bid submissions, the number of excuses a bidder could come up with regarding computer submission software would only exacerbate the problem.
THE SOLPAC, INC. V. CITY OFFRESNO CASE IS UNPUBLISHED, NOT PRECEDENT, AND DECIDED UNDER DIFFERENT TIMES (20 YEARS AGO) AND CIRCUMSTANCES MCM argues that the term used in the Notice Inviting Bids —"up to 10:00 A.M."—means up to 10:00:59 A.M. The argument is absurd and illogical.
From a commonsense standpoint, for example, when someone says you have "up to midnight" to submit a filing, if the filing is submitted at 12:00:01, it is no longer midnight. Midnight is 12:00:00. The next nanosecond is now after midnight.
When someone says you have up to 10 minutes to complete a task, if you complete the task at 10 minutes, and 1 second, you are late. The phrase "up to 10 minutes" does not mean "up to 10 minutes and 59 seconds."
As another example, an employee that is expected to work "up to 5:00 pm" is not expected to work a second later. And there are more examples.
MCM relies on Solpac, Inc. v. City of Fresno. Do not be misguided. The case is unpublished and not precedent. Although not highlighted by MCM in its protest, the unpublished status means that the case may not be cited as precedent in any California court. (Cal. Rules of Court, Rule
8.1115.) That is worth stating again since MCM did not state it at all: the single case relied on by MCM is not California law because it failed to meet the standards for publication. (See Cal. Rules of Court, Rule 8.1105.) Were a lawyer to rely on and cite the unpublished decision to a California judge, that lawyer could be sanctioned. MCM not only relied on the case, but —like the countdown clock described below —failed to disclose to the City Council the unpublished and un-citable status of the case.
More importantly, the case is 20 years old and does not address the circumstances here. The bidding process in that case used the antiquated means of mechanically putting a time stamp on a bid package as it was submitted in person. The time stamp only showed hours and minutes meaning it could only show, in that case, 3:00 or 3:01 and could not distinguish between the two. The Court noted that the time stamp device "recorded only the passage of minutes and lacked any mechanism for recording the passage of seconds." Solpac, at *3.
In addition, the bid documents focused on the "... time stamp in the Purchasing Division [as the] official clock for documenting the time of filing." This meant that a bid time stamped 3:00 was to be deemed timely under the terms of the "Notice Inviting Bids (NIB)."
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B. Tilden Kim
October 24, 2022
The situation here was much different. The term "up to 10:00 A.M." means and can be measured to mean up to 10:00:00. In fact, the PlanetBids software had a countdown timer, in a red box on the submission screen that told bidders that bids needed to be submitted within a certain amount of time. The counter showed bids would close at 10:00:00. The technology used by the City properly left no ambiguity. ALL BIDDERS HAD CLEAR DIRECTIONS THAT BIDS WOULD CLOSE AT 10:00:00 A.M.
Below is a screenshot of the PlanetBids portal for the Project at 9:59 A.M. on the day of the Bid, October 6, 2022. As you, and ALL BIDDERS, could see, the countdown clock clearly indicated the exact second that the bid would close, which was not 10:00:59 A.M., as MCM urges. k C O wnA•nP..k:a. runr:vy w•+tGvwuo[.G
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s & Conditions
B. Tilden Kim
October 24, 2022
Moreover, this countdown clocks appears as soon as the job is advertised. For example, here is screen shot of a PlanetBids countdown clock for a bid on a different project that is due in 14 days":
14 days
Once the countdown clock is down to 24 hours, it then indicates hours, minutes, and seconds.
MCM, Walsh, and Security Paving cannot credibly claim that they thought they would have an extra 59 seconds after the countdown clock reached zero. The assertion is entirely disingenuous.
It is also worth noting that there appeared to be no ambiguity until after the bid closed, since no bidder submitted a question during the bidding process to determine if up to 10:00 A.M. meant up to 10:00:00 or if it meant up to 10:00:59.
It is also highly relevant that the City has used this same bidding process for 10 years without issues. Presumably, if contractors actually thought that up to 10:00 A.M. meant up to 59 seconds after 10:00 A.M., this issue would have been raised regularly by bidders submitting their bids within the 59 second period after 10:00. Presumably that has not happened.
It is unclear why the three bidders waited until the very last seconds to submit their bids. While it is understood that a bid submission always comes close to the deadline, the three bidders were apparently pushing the limits and ignoring the countdown timer on the PlanetBids software.
These are all sophisticated bidders and presumably they did not truly plan to thread the needle by submitting their bids in a 59 second window between 10:00:00 and 10:00:59. More likely, they were having difficulties completing their bid and simply waited too long or neglected to "submit" their bid before the counter hit 00:00:00. They should not be given a second chance to rework their bids with the knowledge of the amounts submitted in five other timely bids.
Furthermore, PlanetBids requires all potential bidders register with the City and PlanetBids.
PlanetBids requires all users accept terms and conditions and acknowledge them with the following screen:
B. Tilden Kim
October 24, 2022
Welcome to PlanetBids eBidding
If you have any questions or need instructions regarding the bid preparation and submittal process, please consult the Help files (See the "Help' icon in the upper right- hand comer of your screen).
A confirmation with a date/time stamp and confirmation number will be issued upon completion of the bid submittal process. IF YOU DO NOT RECEIVE A CONFIRMATION,
YOUR BID HAS NOT BEEN SUBMITTED
Only one session per username may be open at any given time_ Multiple sessions under the same username may result in critical data loss.
IMPORTANT - BE SURE YOU ALLOW ADEQUATE TIME FOR THE BID SUBMITTAL PROCESS to ensure receipt of the complete bid prior to the closing date and time.
Under most circumstances (i e., standard file sizes (less than 10 mb total file size) and a reasonably current uploading capability at your site), submittal should take less than 10 min Additional time is required, however. if (1) you are using older equipment with slower upload capability, (2) your bid has large file attachments or a large number of line items (e.g. more than 100), or (3) you have reliability issues with your internet service provider Remember to save your bid periodically in case of internet connection or power loss. Saving attached files early (i e. to a draft) can help reduce the time needed for submittal. You may edit a submitted bid at any time prior to bid closing
Use of the PB System- process is subject to the PlanetBids terms and conditions Decline
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All bidders had to accept these terms which says it could take up to 10 minutes for standard files to transfer and potentially longer if your bid has large file attachments or a large number of line items.
The bid here required more information and data than is typical. The City required all bidders submit the Construction Contract DBE Commitment and supporting documents at bid closing.
This is unusual and more time consuming than typical bids.
B. Tilden Kim
October 24, 2022
All bidders were aware of these additional requirements. Prior to the bid, several bidders, including Flatiron, asked that the City reconsider these extra requirements as it would put an undue burden on all bidders. The City denied this request. Therefore, Flatiron, used extra resources (twice the staff as usual) the day before and the morning of the bid close to ensure it submitted a responsive bid on time.
Flatiron also recognized that it would take up to 5 minutes for them to submit the final package given all the required documents and data. Flatiron started to complete the remaining item pricing and upload the final submission with approximately 11 minutes left on the countdown timer to ensure it had a second chance to submit if there was an issue with the first submittal.
This is evidenced by Flatiron's successful final data transmission at 9:54:53 A.M. By rejecting all bids, the City would be punishing those bidders who followed the City's clear direction and rewarding those who were underprepared.
CONCLUSION: THE CITY SHOULD REJECT MCM'S REQUEST, AND IT SHOULD
PROCEED WITH AWARDING THE CONTRACT TO FLATIRON
In conclusion, re -bidding this Project will only invite further protests from those that followed the clear directions and unambiguous countdown clock provided by the City. It will only delay the work for this important project and cost the City and the public extra time and money. Moreover, if one of the three late bidders becomes the lowest bidder in a re -bid, there is likely to be a protest submitted at that point and resultant litigation tying the contract award up for weeks or months.
Flatiron is fully qualified to build your Project, and it looks forward to working with the City.
Flatiron has previous positive experience with the City constructing Phase 1 of the French Valley Parkway. Flatiron anticipates a similar experience in building this Project. Flatiron asks that the City reject MCM's meritless protest of the bidding process. No time is a good time to waste time and money, and the present economy and rising inflation makes this a particularly bad time to do so.
For these reasons, Flatiron respectfully requests the City to not re -bid the Project, to place the award of the Project to Flatiron on the agenda for the next City Council Meeting, and to award the contract to Flatiron.
B. Tilden Kim
October 24, 2022
Should you have any additional questions or need any additional information, feel free to contact me. Thank you for your consideration of the points raised in this letter.
Sincerely,
�J
Ty J. C sar, Esq.
PIERCE KAVCIOGLU ESPINOSA & CESAR LLP
cc: Mayor Matt Rahn at matt. rahn(cDtemeculaca.gov
Mayor Pro Tern Zak Schwank at zak.schwa nk(aD-temeculaca.gov Council Member Jessica Alexander at iessica.alexander(a-)temeculaca.gov Council Member James Stewart at james.stewart(cD-temeculaca.gov Council Member MaryAnn Edwards at marvann.edwards(aD-temeculaca.gov City Council Assistant at Council.Assistant(a)TemeculaCA.gov Avlin Odviar, Principal Civil Engineer at Avlin.Odviar(a-temecularca.gov Timothy L. Pierce, Esq. at tpierce(aD-pkec.law
Mario Martinez, VP, District Manager, Flatiron West, Inc. at mmartineza-flatironcorp.com Sean Ashburn, Corporate Counsel, Flatiron West, Inc. at sash burn(aD-flatironcorp.com