Meeting Date: Agenda Item: Unclassified Manager: Extension: Director(s): FC 1025 (08/17/11) 06/10/14 5.1 Liang Lee 2379 All BOARD AGENDA MEMO SUBJECT: 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) RECOMMENDATION: A. Ratify Addenda Nos. 1, 2, and 3 to the Contract Documents for the Lower Silver Creek Reach 6B Project (Attachment 1); B. Approve a budget adjustment for the amount of $3,700,000; C. Wave minor irregularities in Robert Bothman, Inc.’s Bid; D. Award the Contract to Robert Bothman, Inc., in the sum of $ $12,677,594; and E. 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. SUMMARY: 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 Page 1 of 5 SUBJECT: 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 (06/10/14) 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 complied. Page 2 of 5 SUBJECT: 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 (06/10/14) 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 $12,677,594 $12,936,605 $13,637,955 $13,825,740 $15,444,850 non-responsive non-responsive non-responsive non-responsive non-responsive Page 3 of 5 Award Amount $12,677,594 SUBJECT: 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 (06/10/14) 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: $30,000 Deputy Operating Officer: (Designated Engineer) $50,000 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 construction. 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 Page 4 of 5 SUBJECT: 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 (06/10/14) 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 construction. FINANCIAL IMPACT: 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 year. CEQA: 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. ATTACHMENTS: Attachment 1: Addenda No. 1, 2, 3 (Cover pages only). The full documents can be accessed at: http://www.valleywater.org/LSCR6b-Ad1.aspx http://www.valleywater.org/LSCR6b-Ad2.aspx http://www.valleywater.org/LSCR6b-Ad3.aspx Attachment 2: Project Delivery Chart Page 5 of 5 THIS PAGE IS INTENTIONALLY LEFT BLANK THIS PAGE IS INTENTIONALLY LEFT BLANK
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