BOARD AGENDA MEMO - Santa Clara Valley Water District

Meeting Date:
Agenda Item:
Unclassified Manager:
FC 1025 (08/17/11)
Liang Lee
Report of Bids Received and Award of Construction Contract to Robert Bothman,
Inc. for the Lower Silver Creek Reach 6B, Project No. 40264008, Contract No.
C0594 (San Jose)
Ratify Addenda Nos. 1, 2, and 3 to the Contract Documents for the Lower Silver Creek
Reach 6B Project (Attachment 1);
Approve a budget adjustment for the amount of $3,700,000;
Wave minor irregularities in Robert Bothman, Inc.’s Bid;
Award the Contract to Robert Bothman, Inc., in the sum of $ $12,677,594; and
Approve a contingency sum of $ $1,267,760 and authorize the Chief Executive Officer
(CEO) or designee to approve individual change orders up to the designated amount.
Board approval of the recommendations will allow the Lower Silver Creek Reach 6B Project
(Project) to be constructed. If the construction contract is awarded, it will create or sustain
about 200 to 400 jobs for the community.
The objective of the Lower Silver Creek Reach 6B Project is to construct 2,700 feet of flood
channel improvements within Lower Silver Creek (Moss Point Drive to Cunningham Avenue) to
convey the 1% chance flood flows. This Project is the last upstream reach of the Lower Silver
Creek Flood Protection Project that the District partners with the Natural Resources
Conservation Service (NRCS) to construct improvements along approximately 2.3 miles of the
creek. Completion of this Project, together with future improvements for the Lake Cunningham
Project, will provide flood protection for a total of 3,800 parcels in the surrounding area.
Project Background
On March 25, 2014, the Board approved the advertisement of plans and specifications for the
Project, which extends from Moss Point Drive to Cunningham Avenue. On May 28, 2014, the
District received and opened ten bids. A summary of bids was posted on the District’s web site
identifying Flatiron West Inc. (Flatiron) as the contractor submitting the apparent low bid. After
subsequent review, staff determined that five bids, including Flatiron’s, were non-responsive for
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Report of Bids Received and Award of Construction Contract to Robert
Bothman, Inc., for Lower Silver Creek Reach 6B, Project No.40264008,
Contract No. C0594
failure to submit information on the landscape sub-contractors’ experience, as required by
Article 40.01.D. of the Specifications. Of the responsive bids, the apparent low bid was
submitted by Robert Bothman, Inc.
Addenda Ratification
Three Addenda (Attachment 1) were issued during the bid period to clarify the Project Contract
Documents, extending the bid submittal date, adding additional scope, and revising the contract
duration. To formally incorporate the addenda into the Project Contract Documents, staff
recommends that the Board ratify the addenda. Waiver of Minor Irregularities in Robert
Bothman, Inc’s., (Bothman) Bid
Per the Notice to Bidders, paragraph 13, the District reserved its right to reject any and all bid
proposals and to waive minor defects and irregularities in any submitted Bid form(s). Bothman’s
Bid contained two minor errors.
On the “Proposal Form and Bid Items” Bid Form 1, the Total Bid Amount on page 1 was not
filled in by the contractor. On a subsequent page in the same Bid Form, all, however, necessary
information was provided and the Total Bid Price can be ascertained.
On the Small Business Outreach Program, “Instructions and Compliance Document” Bid Form
4, page 6, the monetary amount and percentage of participation by Small Business
subcontractors was incorrectly totaled. Bothman indicated in the same Bid Form, on a previous
page, that their firm can demonstrate the requisite good faith efforts in lieu of achieving the
minimum participation levels. These errors can be waived as minor irregularities as they do not
impact the price for the work nor ability to enter into or perform a contract.
The District’s waiver of the minor irregularities discussed above does not result in the bid
process being unfair or give the firm an unfair advantage over the other bidders. The errors do
not render Bothman’s bid non-responsive. The public’s best interest is served by waiving these
minor irregularities and awarding a contract to Bothman as the firm submitting the lowest
responsive bid.
Contract Award
Ten (10) bid proposals were received and opened on May 28, 2014, and are summarized in
Table 1, Report of Bids, below.
Four (4) timely bid protests were received. Three of the protests (Flatiron West Inc., Sierra
Mountain, and Proven Management) alleged it was unfair to include bid requirements
(experience of landscape sub-contractor) in Article 40.01.D. of the Technical Specifications,
without highlighting this requirement in the Notice to Bidders (NTB). While it would have been
more convenient for the bidders had the District included a Bid Form to provide the information,
in executing and submitting Bid Form No. 1, Proposal Form and Bid Items, contractors affirm
that they are ”thoroughly familiar with the terms and conditions of the Contract Documents”. In
fact, five of the ten bidders did note this information was to be submitted with their bids and fully
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Report of Bids Received and Award of Construction Contract to Robert
Bothman, Inc., for Lower Silver Creek Reach 6B, Project No.40264008,
Contract No. C0594
The fourth protest was received from Gordon N. Ball, Inc. (Gordon Ball), the bidder submitting
the second lowest responsive bid. Gordon Ball contends Bothman’s bid was non-responsive
due to errors and omissions, which the District determined were waiveable minor irregularities
as discussed above. In addition, Gordon Ball contends that Bothman’s Good Faith Efforts were
inadequate to meet the District’s Small Business Outreach requirements as detailed in Bid
Form No. 8, “Small Business Outreach Program, Requirements for Demonstrating a Good Faith
Effort.” Eight separate items are listed in the Bid Form which provide direction to the bidders for
specific actions to be taken in soliciting participation by small businesses such as: including
advertising not less than ten (10) days before the date bids are due; contacting a reasonable
number of SBE firms; and following up with a reasonable number of those firms to generate
interest in the project. District staff thoroughly reviewed the extensive documentation submitted
by Bothman and determined that the contractor demonstrated credible Good Faith Effort.
After careful consideration of the protests and the District’s Contract Documents, the
Designated Engineer determined that no bidder had an unfair advantage, all of the Bidders
received the same information and five of them complied with the requirements. Therefore, the
protests received from Flatiron West, Inc., Sierra Mountain, Proven Management, and Gordon
Ball were all determined to be without merit.
Staff recommends that the Construction Contract for the Projects be awarded to the responsible
bidder submitting the lowest responsive Bid Robert Bothman, Inc., for the following reasons:
1. All bid entries and requirements in the Proposal submitted by Robert Bothman, Inc., are in
order or can be waived as minor irregularities;
2. Robert Bothman, Inc.’s, license is current, active and in good standing; and
3. Robert Bothman, Inc., complied with the District’s Small Business Enterprise (SBE)
Outreach program by submitting documentation of their Good Faith Effort.
Table 1 – Report of Bids
Company, Location
Robert Bothman, Inc.
Gordon Ball, Inc.
Granite Rock Co.
Goodfellow Top Grade Construction
DeSilva Gates
Ferma Corporation
Flatiron West, Inc.
Proven Management
RGW, Construction, Inc.
Sierra Mountain
Engineer’s Estimate: $12,150,450
Bid Amount
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Award Amount
Report of Bids Received and Award of Construction Contract to Robert
Bothman, Inc., for Lower Silver Creek Reach 6B, Project No.40264008,
Contract No. C0594
Contingency Funds
Staff is requesting $ 1,267,760 (10% of contract amount) contingency for the Project to allow
staff to quickly address unforeseen or changed site conditions and other unanticipated
occurrences, without causing unnecessary delays or consequential costs to the Project.
The contingency amount was estimated due to known and unknown risks, such as:
1. Unanticipated variances in quantities and cost of various lump sum items estimated in
the Bid Proposal;
2. Unforeseen hazardous soil removal and disposal;
3. Potential delays in utility relocations and shutdowns by utility companies;
4. Differing site conditions;
5. Concealed conditions and/or field conditions that may be different from the baseline or
as-built information used in preparation of Project Contract Documents;
6. Coordination issues and risks associated with weather conditions and unplanned water
releases in to the creek.
Approval of individual change orders will be made up to the designated amounts as follows:
Engineering Unit Manager:
Deputy Operating Officer:
(Designated Engineer)
CEO or designee:
Up to the approved contingency amount of $1,267,760
Public Outreach
Pursuant to the Board’s request from the March 25, 2014 Board meeting, during early April staff
solicited the community’s input regarding which anti-graffiti options would be appropriate for the
resulting wall finishes facing the creek. Staff developed four potential anti-graffiti options for the
community to choose from. The selections included natural vine growth, stamped concrete,
stained walls or artistic murals. Staff asked the community to choose their preference for two
out of the four options. Based on majority ranking, the resulting feedback were natural vine
growth and wall staining. Staff made the final selection of choosing stained walls versus natural
vine growth based on the maintenance needs of visual inspection and monitoring of the
floodwall for structural integrity. It would be difficult for staff to monitor the wall cracks if the wall
was covered with vines.
During construction, steps will be taken to minimize impacts associated with the Projects, such
as noise and construction traffic. Neighbors will be informed of potential issues, as appropriate.
Project Contract Documents include requirements and measures to minimize impacts during the
Outreach to Bidders
The Notice to Bidders was sent to 1,528 certified Small Business Contractors that have the
appropriate license. Twenty (20) SBE and Chambers of Commerce, and 27 plan rooms (Builder
Exchanges) and District’s own web site were used to solicit interest in the Project work from
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Report of Bids Received and Award of Construction Contract to Robert
Bothman, Inc., for Lower Silver Creek Reach 6B, Project No.40264008,
Contract No. C0594
prospective Contractors. Five hundred and seventy contractors were contacted through the
Building Construction & Trades Council, and 120 contractors were contacted using the District’s
own Master Contractor Database.
Next Steps
If the Board approves the recommendations, staff will proceed with administering Project
The estimated total cost for the proposed Construction Contract, including the change order
contingency sum, is $13.9M. The available adjusted FY 2014 budget is $10.7M which is
insufficient to encumber the proposed Contract and the contingency amount. A budget
adjustment of $3.7M, from Project Reserves and Capital and Operating Reserves, is required to
provide adequate funds to encumber the construction contract and cover additional labor for FY14 expenditures.
Board’s approval of the requested budget adjustment will allow funds to be encumbered for the
construction of the project and allow staff to administer the project through the end of the fiscal
In 1983, the District and the NRCS certified a joint Final Environmental Impact
Statement/Report (FEIS/FEIR) for Lower Silver Creek (1983 Recommended Plan). The 1983
Recommended Plan was never constructed because of its heavy reliance on concrete channel
sections, and was updated in 1998 by the NRCS. In 2000, the District and the NRCS prepared
a joint Initial Study/Negative Declaration (IS/ND) and Environmental Assessment/Finding of No
Significant Impact (EA/FONSI) to evaluate the impacts of changes between the 1983
Recommended Plan and the 1998 Plan Update. The district’s Board adopted the IS/ND in
December 2000. Since then, three Addenda to the IS/ND have been completed to address
changes/enhancements to the 1998 Plan Update (September 2001), for the construction of the
Dobern Pedestrian Bridge (January 2004), and to evaluate current design changes for Reach
6B (July 2009). A Fourth Addendum to the December 2000 IS/ND was prepared in June 2010
to evaluate current design changes for Reaches 4-6. All regulatory permits were received and
are current for the Project.
Attachment 1: Addenda No. 1, 2, 3 (Cover pages only). The full documents can be accessed
Attachment 2: Project Delivery Chart
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