Resolution 2472
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RESOLUTION NO. 2472
A RESOLUTION OF THE BOARD OF DIRECTORS OF
SOUTH TAHOE PUBLIC UTILITY DISTRICT
ADOPT!NG FINDINGS AND DETERMINATION DECISION OF
SOUTH TAHOE PUBLIC UTILITY DISTRICT IN RE
EPA PROJECT NO. C-06-1414-12
EMERGENCY RETENTION BASIN SEALING PROJECT - 1988
BE IT RESOLVED by the Board of Directors of South Tahoe
Public Utility District as follows:
1. The Board of Directors of South Tahoe PUblic
utili ty District has reviewed all relevant MBE/WBE compliance
informati on I incl uding Ford Construction Company, Inc.' s
(IIFORD") positive efforts toward utilization of MBE/WBE
businesses in South Tahoe Public utility District EPA Project
No. C-06-1414-12, Emergency Retention Basin Sealing Project _
1988, to determine if FORD can meet, or make good faith efforts
to meet, the District MBE/WBE goals and satiSfy the EPA MBE/WBE
policy.
2. The Board of Directors of South Tahoe Public
utility District adopts the Findings and Determin5tion Decision
of the South Tahoe PUblic Utility District Upon Remand from the
Regional Administrator, Region IX, U. s. Environmental Protec-
tion Agency in re EPA Project No. C-06-1414-12, Emergency
Retention Basin Sealing Project submitted.
PASSED AND ADOPTED by the Board of Directors of South
Tahoe PUblic Utility District at a duly held adjourned regular
meeting on the 13th day of October, 1988 by the followinq vote:
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AYES: Directors Mason, Jones, Olson, Walker, Sinclair
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NOES: None
ABSENT: None
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ROBERT MASON, Chairman of
Board, South Tahoe PUblic
Utility District
ATTEST:
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Y;~,d:- a: F~l.--n~
PAT A. MAMATH, Cl rk of Board
South Tahoe PUblic Utility District
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SOUTH TAHOE PUBLIC UTILITY DISTRICT
1275 MEADOW CREST DRIVE
P. o. BOX 70542
SOUTH LAKE TAHOE, CALIFORNIA 95705
In re )
)
EPA PROJECT NO. C-06-1414-12 )
)
EMERGENCY RETENT!ON BASIN )
SEALING PROJECT )
FINDINGS AND DETERMINATION
DECISION OF THE SOUTH TAHOE
PUBLIC UTILITY DISTRICT UPON
REMAND FROM THE REGIONAL
ADMINISTRATOR, REGION IX,
U. s. ENVIRONMENTAL PROTECTION
AGENCY
...
I . BACKGBQ1JHD
A . B.lJlS
South Tahoe Public utility District ("District")
solicited bids for the above project which were opened on June 2,
1988. The bidders and bid amounts were as follows:
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1. Ford Construction Company, Inc.
2. Alta Pacific Constructors, Ino.
3. Thomas Haen Company, Inc.
4. Dutra Construotion Company, Inc.
B. P~O~iS~S TO DISTRICT
Al ta Paci f 1c Constructors, Inc. ( It Al ta Pact f ic II )
protested an award to Ford Construction Company, Inc. (I'Ford") on
the grounds that Ford's bid was non-responsive for failure to in~
clude Attachment 18, Form 4700-5, with its 8id Documents. Thomas
Haen Company, Inc. (IIHaen") protested an award to Ford on the
same ground. Haen also protested any award to Alta Pacific for
failure to obtain MBE/W8E goals as stated in the Bid Specifica-
tions and not submittinq its "positive Effort" requirements with
its bid.
$1,239,000.00
1,282,825.00
1,397,925.00
1,577,675.00
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c. DISTRICT DETERMINATION
The District Board of Directors, after a pUblio hearing
of the bid protests on June 24, 1988, determined that Ford sub~
mitted 8 non-responsive bid, that Alta Paoifio was the low..t,
responsive, responsible bidder, and awarded the oontract to Alta
Pacific at its bid price of $1,282,825.00 without Bid Alternate
A.
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D. PROTEST TO U. S. ENVIRON~~NTAL PROTECTION AGENCY
Ford timely protested to the Reqional Administrator,
Region IX, U. S. Environmental protection Agency (EPA). Haen did
not protest the award to EPA.
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E. D~T~RHlHATION OF ErA
The Regional Administrator determined on September 21,
1988 that Ford's failure to submit Attachment 18, Form 4700-5, il
a matter or bid responsibility, not responsiveness, and the
defect can, therefore, be corrected after the bid opening. The
Regional Administrator remanded the matter to the District to
determine whether Ford is a responsible bidder. Exhibit No. 42.
II. CRITER1~ FOR DETERHI~tNO fQRD'S REijPQNS~8ILITY
The Regional Administrator's determination provided
that the District should review all relevant MBE/WBE compliance
information, including Ford's pertormance and post-bid documenta-
tion of its positive efforts toward utilization of MBE/WBE
businesses in light of his decision. Speoifically, the District
is to determine whether Ford is or is not a responsible bidder,
i.e., whether Ford can meet, or make good faith efforts to meet,
the District MBE/WBE goals and satisfy the EPA MBE/WBE policy.
The Regional Administrator noted that the California State Water
Resources Control Board (SWRCB) BUlletin 113-A implements EPA
MBE/WBE regulations found at 40 erR 33.240. Exhibit No. 42.
Responsibility may be cured by substantial compliance,
post-bid documentation, or waiver of non-material irregularities.
Exhibit No. 42
III. REspa~~~B.~~~Y OF FO~D
A. POSITIV~ EFFOR1 POGUM~NT~T!ON TH~T fQRD
INCLUDED OUALIFIEO ~SE/WBE ~V~l~~SSES
ON SOLIC1T~T~QN LISTS
Ford decided to bid the project at a time when the ap-
parent bid date precluded requesting assistance of the Small
Business Administration and Office of Minority Business En-
terprise at least five working days prior to the need tor refer-
rals. Ford prepared and updated a list of qualified M8E/W8E sub-
contractors for its bid jobs during the past three years and used
this list as one solicitation list. Ford also used the State of
.... California Department of Transportation ("Cal-Trans") certified
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MBE/WBE soliciation list. This list is the most oomplete list
available for Ford's type and area of work. Exhibit Nos. 21, and
22.
The Regional Administrator found that the requirement
to contact the MBE/W8E assistance centers is a matter of bidder
responsibility. Exhibit No. 42.
1. FINPtNQ
Ford's use of the Cal-Trans list and its own in-house
list is an appropriate effective alternative to the list required
by the SWRCB, BUlletin 113"A. Ford, therefore, substantially
complied with Requirements A., Positive Effort Documentation, 1.,
SWRCB BUlletin 113-A and the use of these lists constituted good
faith efforts and positive efforts to meet grantee MBE/WBE goals
and satisfy the EPA MBE/WBE policy.
2 . WAIV,R
Any irregularities in complianoe by Ford not includinq
qualified MBE/WBE businesses on solicitation lists pursuant to
said BUlletin 11J-A are waived.
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B. pOSITIVE i[FORT DOCUMENTATION T~T FORD
AS~VRSP THA~ MBE/WBE BUijI~i~IJS ARE SOLICITED
~HENEVER TijEY ai~ fPTENT~~t SOURCES
Ford advertised its intent to bid in the two most
widely used publications in the industry. Ford oontacted 13
potential sub-contractors for bid quotes, 9 of which were MBE/WBE
sub-contractors. Ford' a deoision to bid the project preoluded
sol lei tation at least seven working days prior to the need for
sub-contractors for Ford to meet the bid on the apparent bid
date. Ford sent invitations to those sub-contractors and sup-
pliers who, in Ford's experience from its own MBE/WBE list and
the eel-Trans list, had the oapability and would be interested in
bidding on the above project 1n the area of work. The invita-
tions and responses are documented. Exhibit Nos. 21 and 22.
1. flNDING
Ford substantially complied with Requirements A., Posi-
tive Effort Documentation, 2., SWRCB BUlletin 113-A a. evidenced
by documentation submitted and its efforts constituted qood faith
and positive efforts to meet qrantee MBE/WBE goals and satisfy
the EPA MBE/WBE policy.
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2 . WAIVER
Any irregularities in compliance by Ford of Require-
ments A., Positive Effort Documentation, 2., SWRCB, Bulletin 113"
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A are waived.
c. POSITIVE EFFORT DOCY~E~T~T+QN THAT FO~P
DIV1PED TOTAL ~iQU1~~~~~S TO P~RHIT MAXtHUH
PART~G1PAT+ON OF MBE/WeE BUSINESSES
Ford divided the project into categories. Given the
relati ve simple nature and construction needs of the project,
this division was reasonable, logical, and economically feasible.
Exhibi t No. 43.
1. FINDING
Ford's division of the total work requirements substan-
tially complied with Requirements A., Positive Effort Documenta-
tion, 3., SWRCB Bulletin 113-A and constituted good faith and
posi tive efforts to meet grantee MBE/WBi goals and satisfy the
EPA MBE/WBE policy.
2 . WAIVEj.
Any irregularities of compliance by Ford of Require-
ments A., positive Effort Documentation, 3., SWRCS Bulletin 113-A
are waived.
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D. postT1YE EFFORT DOCUMENTATION THAT F08D
ESTABLISHED D~~~VERY SCHEpUwle WH~~E THE
REOUIREMENr~ Qf T~~ ~O~~ P~RM~T. ijHICij Wl~
ENCOURAGE PARTICIPATION BY MBE/WBE BUSINESSES
sections 01009, 010025, and Contract Time, Page 1B-9 of
the Bid Specifications and Tahoe Regional Planning Agency Permit,
Pages 1B-C~1 established strict construction schedule guidelines.
The location of copies of the Bid Speoifioations was identified
in Ford's solicitation to the MBE/WBE firms. Exhibit Nos. 2, 21,
and 22.
1. FINDING
Requirement 4 is inapplicable since the Bid Specitica-
tions themselves establish the relevant delivery schedules.
E. PO~~TIVE ~FFORT DOCUH~~~ATtON TijAT FORD
USED THE SERVICES AND ASSISTANCE OF THE
SMALL BUSI~ESS APM+NIS~~T+QN ~p QfFI~
Of ~.~ORIT~ aUSlij~&S ~T~RPRIS~ Of THi
U, S. O~p~TMENT Of 90MMERCE, AS APP~OPRlATE
The Regional Administratoi found that the requirement
to contact the MaE/WBE assistance centers is a matter of bidder
~ responsibility. Exhibit No. 42.
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1. FIHCIHw
The posi ti ve effort documentation that Ford included
qualified MBE/WBE businesses on solicitation lists, III. A.,
supra evidenoes substantial compliance with Requirements A.,
positive Effort Documentation, 5., SWRCB BUlletin 113.A and con-
stituted good faith and positive efforts to meet grantee MBE/WBE
goals and satisfy the EPA MBE/WBE policy.
2 . WAIVEli
Any irregularities in compliance by Ford ot Require-
ments A., Positive Effort Documentation, 5., SWRCB Bulletin 11J-A
are waived.
F. POSITIVE EFFO~T DQCUMENT~T+O~ THAT rORD
TIMELY SUBM~TTED DOC~ENTATiQH OF POSITIVE tFFORTS
Ford submitted documentation on June 3, 1988, June 6,
1988, and June 10, 1988 which evidenced that, prior to bid open-
ing, all required positive effort. were made. This documentation
was received by the oistrict within ten working day. tOllowinq
~ bid opening. Exhibit Noe. 21, 23, and 44.
Ford did not submit Attaohment 1-B, Form 4700-5, with
its bid. Ford submitted Attachment 1.B, Form 4700-5, on June 3,
1988, the day following bid opening. Exhibit No. 44.
The Regional Administrator determined that the require-
ment to timely submit documentation of po8itive ettorts is a mat-
ter of responsibility. Exhibit No. 42.
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1 . FItiDnlG
Ford substantially oomplied with Requirements B., other
Requirements, 1., SWRCB Bulletin 113.A, that all positive efforts
were made prior to bid opening and documentation was received by
the District within ten working days following bid opening. Ford
aub.tantially complied with Positive Effort Requirements B.,
Other Requirements, 1., SWRCB Bulletin 113-A and ita pertormanoe
constituted good faith and positive eftorts to meet grantee
MBE/WBE goals and satiSfy the EPA MBE/WBE policy.
2 . W~tVg
Any irregulari tie. in the compl iance by Ford of
Requirements B., Other Requirements, 1., SWRC8 Bulletin llJ-A,
are waived.
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G. POS~TIVE EFFORT DOC~~NT~rIQH THAT FORD
COMPLIED WlT~ fIVE AfF~RHATIVE STEPS PRIOR
TO BID OPENI~G ~HQ SUBMITTED ATTAC~~T 1-~
FO~ 470p-~ WITH ITS ~ID
Ford sUbstantially performed the five affirmative
steps, Requirements A., Positive Effort Documentation, 1., 2.,
3., 4., 5., where applicable under the circumstances of the Bid
Specifications. Exhibit Nos. 16, 21, and 22.
Ford submitted Attachment 1-6, Form 4700-5 on JUne 3,
1988, the day following its bid. ~xhibit No. 44.
The Regional Administrator faunl1 that the requirement
to perform five affirmative steps is a matter of responsibility.
Exhibit No. 42.
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1. FINDING
Ford substantially complied with Requirements B., 7.,
SWRCB BUlletin 113-A, by documenting that five affirmative steps,
where applicable, were substantially complied with prior to bid
openinq and submitted Attachment 1-B, Form 4700-5, on June 3,
1988, the day following the bid opening, and its performance con-
stituted good faith and positive efforts to meet grantee Ma~/WBE
goals and satisfy the EPA MBB/WBE policy.
2 . WAIV~j.
Any irregularities in complianoe by Ford of Require-
ments B., Other Requirements, 7., SWRCB Bulletin 113-A, are
waived.
H. POS1T!VE EFFORT DOqUMENTATIO~ TH~T FQRQ
COMPLIED WITH LOC~~ GOALS FOR MBE/WBE PARTICIPAT1QH
The qrantee established a goal of 4.4' of the total bid
dollar amount of this contract for the utilization ot MBE en-
terprises. Ford's actual MBE participation was 5.2'. Exhibit
No. :2.
The grantee established a qoal of 2\ of the total bid
dollar amount of this contract for the utilization of WBE en-
terprises. Ford's actual WBE participation was 36%. Exhibit No.
2.
1 . FINDn,G
Ford attained the grantee established goals for
utilization of MBE and WBE business enterprises.
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IV. pETERM~N~T~QN
A. Ford is a responsible bidder.
B. Ford is the lowest, responsive, responsible bidder.
Dated: October 13, 1988
ATTEST:
l /I~ '
'/if V. '')(~~7/~a)ti
PAT A. MAMATH, Cler of Board
South Tahoe PUblic utility Distriot
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ROBERT HASON, chaIrman of
Board, South Tahoe Public
utility DiBtrict
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