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02-13-86 AdjournedBOARD MEET I~NG GUEST SIGN- IN SHEET: (please print) ..... . c ADDRESS: NOTE: COMPLETION OF THE ABOVE INFO~TION IS VOLUNTARY AND NOT A PRECONDITION FOR ATTENDANCE. SOUTH TAHOE PUBLIC UTILITY DISTRICT 1275 MEADOW CREST DRIVE P.O. Box AU SOUTH LAKE TAHOE, CALIFORNIA 95705 In re: ) ) CONTRACT NO. 1, WASTEWATER ) RECLAMATION PLANT IMPROVEMENTS) ) PROTEST OF C. W. ROEN ) CONSTRUCTION COMPANY, ET AL. ) ) FINDINGS AND DETERMINA- TION DECISION OF THE SOUTH TAHOE PUBLIC UTILITY DISTRICT BACKGROUND On November 7, 1985, the South Lake Tahoe Public Utility District ("District") solicited bids for the construction of certain improvements to the District's Wastewater Reclamation Plant. The improvements are being funded in part through EPA Grant No. C-06-1414-110 made pursuant to Title II of the Clean Water Act, 33 U.S.C. Section 1281, et seq. On January 8, 1986, the District identified the apparent low bidder as Alta Pacific Constructors, Inc. ("Alta Pacific").1/ The District has not actually awarded the contract to any bidder prior to this determination. The purpose of this determination is to ensure that all issues concerning the responsibility and responsiveness of the apparent low bidder, Alta Pacific, are addressed. In the present proceeding, eight parties have challenged the status of Alta Pacific as the apparent low bidder on a variety of grounds. The'parties, and the issues they have raised, include: Bidders and bid amounts (in millions): Total Alt. A 1. Alta Pacific 10.165 10.005 2. C.W. Roen Construction Co. 10.175 10.145 3. Sletten Construction Co. 10.290 10.260 4. Fru-Con Construction Co. 10.443 10.415 5. Monterey Mechanical Co. 11.892 11.792 6. DiLlingham Construction N.A., Inc. 12.261 12.251 7. Homer J. Olsen, Inc. 12.435 12.405 (Construction Alternative A was elected by the District.) 1. C.W. Roen Construction Company ("Roen"), the apparent second low bidder for the project, which recommended that the Alta Pacific bid be rejected for the following reasons: -- Failure to satisfy minority and women's business enterprise ("MBE/WBE") requirements -- Failure to contact a mandatory MBE/WBE referral center -- Failure to list an electrical subcontractor -- Inability to perform electrical work -- Failure to obtain a quotation from a listed electrical supplier 2. Mid State Electric Company ("Mid State"), an electrical subcontractor who submitted a bid to Alta Pacific and other prime contractors bidding on this project, also prospectively protested an Alta Pacific award based on: -- Failure to list an electrical subcontractor -- Failure to obtain a quotation from a listed electrical supplier -- Failure to list the business address of each subcontractor 3. Local 401 of the International Brotherhood of Electrical Workers ("IBEW"), which has no relationship to Alta Pacific, raised the following issues: -- Alta Pacific's lack of a "C-10" license for electrical subcontracting work -- Failure to list an electrical subcontractor as an attempt to avoid paying prevailing wages -- Failure to list an electrical supplier from whom Alta Pacific had received a quote -- Inability of an open shop contractor to comply with the state apprenticeship requirements 4. Local 1789 of the United Brotherhood of Carpenters and Joiners of America ("Carpenters"), which has no relationship to Alta Pacific, raised several questions regarding the legal, financial, and responsible qualifications of Alta Pacific, its officers, employees, and principal shareholders, and also challenged Alta Pacific's e intent to comply with prevailing wage and apprentice training laws. 5. Don Garcia Paving and Excavation, which has no relationship to Alta Pacific, questioned Alta Pacific's compliance with the MBE/WBE requirements. 6. Petitioners, residents of the District, accused Alta Pacific of unspecified "unfair bidding practices." 7. Sletten Construction Company ("Sletten"), the apparent third low bidder, also questioned Alta Pacific's compliance with the MBE/WBE requirements. 8. Carpenters 46, Joint Apprenticeship Training Committee ("Carpenters JATC") questioned Alta Pacific's capacity, as an open shop contractor, to comply with the apprenticeship training laws. The District's findings on the issues raised by each protestor will be discussed in turn. PROTEST PROCEDURE Because the project is receiving financial assistance from EPA, the District is required to conduct its procurement in accord with the procedures specified by EPA in 40 C.F.R. Part 33. The District is also bound to comply with California law to the extent such law has not been preempted by federal regulations. Federal Protest Criteria: The procedural requirements of EPA's Bid Protest regulations are set forth at 40 C.F.R. 33.1110-1130. Only a party with a direct financial interest which has been adversely affected by the initial award decision has standing to file a protest. 40 C.F.R. Section 33.1110(a). A subcontractor has standing to file a protest appeal only for issues which relate to the award of a subagreement by a contractor. 40 C.F.R. Section 33.1120(c). All protests must be filed in writing at the District on or before the applicable deadline. 40 C.F.R. Section 33.1115(b). The deadlines for timely filing are set forth in 40 C.F.R. Section 33.1130, which provides in pertinent part: "(a) If the [District] does not receive the initial protest before bid opening or the closing date for receipt of proposals, [EPA] may dismiss as untimely any protest appeal based upon alleged improprieties in the solicitation which were o clearly apparent before bid opening or before the deadline of receipt of initial proposals. "(b) In cases not involving improprieties in the solicitation, [EPA] may dismiss as untimely a protest appeal if the adversely affected party did not file the initial protest with the recipient within seven calendar days of th__~e dat___~e the basis for the protest was known or should have been known, whichever is earlier."' (Emphasis added.) The bid opening date was January 8, 1986. Any improprieties in the solicitation material must have been protested on or before the bid opening date in order to be timely within the meaning of Subsection (a), above. No protests were received by the District prior to the Bid Opening. The District need not actually make its award decision prior to considering protests, since the deadline for filing a protest is seven days after "the event which created the protestable issue". Broomfield, Colorado (Protest of Summit Constructors, Inc.) (EPA Region VIII, November 26, 1985); 40 C.F.R. Section 33.1130(b). The identification of Alta Pacific as the apparent low responsive, responsible bidder on January 8, 1986 thus constitutes the "event" for all issues except for protests which allege deficiencies in Alta Pacific's MBE/WBE positive efforts. For issues which were first apparent when the bids were opened and made public on January 8, 1986, therefore, the deadline for filing a protest with the District was January 15, 1985. 2/ No written protests were received by the District from any party on or before that date. The MBE/WBE positive effort documentation of the apparent low bidder, Alta Pacific, was due within ten working days following the bid opening, by January 23, 1986. The timely submission of Alta Pacific's MBE/WBE submittals, which were available at the District on and after January 23, 1986, constitute the "event" for protests alleging deficiencies in Alta Pacific's MBE/WBE positive efforts. (Clean Water Act Bulletin No. 113, incorporated into Bid Specifications, Exhibit 2, in section 00822, p. 55.) Protests regarding Alta Pacific's MBE/WBE documentation would have been timely only if they were received between January 23, 1986 and January 30, 1986. 40 C.F.R. Section 33.1130. No such protests were received. EPA has held that a grantee may not dismiss a protest on procedural grounds where the protestor was not notified 2 Representatives of all of the prime contractors were present at the bid opening and had ample opportunity to examine all the bids. See Exhibit 72, videotape recording of Bid Opening. of the applicable protest regulations. Sioux City, Iowa (Protests of Industrial and Municipal Engineering, Inc.) (EPA Region VII, September 13, 1983). In this case, since EPA's protest regulations were included in the bid specifications (Exhibit 2, p. 00822-6 et seq.), all relevant parties were appraised of the procedural requirements for filing a protest with the District. EPA has strictly construed the time requirements contained in its protest appeal regulations. See, e.g., City of Willoughby, Ohio (Protest of Quasar Construction, Inc.) (EPA Region V, July 1, 1985). EPA dismissals of protest appeals on the grounds of untimeliness have been upheld by several courts. Ibid.; see also BSP Division of Environtech v. United States, 461 F. Supp. 958 (D.N.J. 1979); New Ikor v. McGlennan, 446 F.Supp. 136, 140 (E.D. Mass. 1978); MacLean Construction Company v. EPA, 432 F. Supp. 242 (W.D. Mich. 1976). "A bid protest received by the grantee more than seven calendar days after the protester knew or should have known of the basis for the protest shall be dismissed as untimely". Monterey Regional Water Quality Control Agency, California (Protest of Dillingham Construction N.A., Inc) (EPA Region 9, December 17, 1985). EPA may summarily dismiss an appeal without a protest appeal proceeding under 40 C.F.R. Section 33.1145(b), which states: "The award official may summarily dismiss an appeal without proceeding under this subpart if . . . [t]he protestor substantially fails to comply with the procedural requirements of this subpart." (Emphasis added). Because of the untimeliness and other procedural defects of all protests (as discussed below) and the District's extensive analysis and rational determination of each issue raised by the protestors, it is appropriate that EPA summarily dismiss any appeals of the District's determination of this matter on procedural grounds. State Criteria for the Award of a Public Contract: Decisions of the District relating to public contract awards are also subject to state law requirements. 3/ Cal. 3 In bid protest appeals, EPA's interest in state law is limited to situations in which the application of the state law contravenes federal procurement requirements. See 40 C.F.R. Section 33.1120(b)(2); see also, Alice, Texas (Protest of W.T. Young Construction Co., Inc.) (EPA Region VI, January 15, 1986). Pub. Contracts Code Sections 20202.1 et seq. In general, state law requires that "[a]ll contracts shall be made with the lowest responsible bidder, who shall give bonds for the faithful performance of the contract." Cal. Pub. Contracts Code Section 20207.4. "In considering bids the [District] may accept or reject all or any of them, or may accept or reject part of a bid, preference being given to the lowest responsible bidder." Cal. Pub. Contracts Code Section 20207.1. Under state law, therefore, the District must make its responsibility determinations in light of the issues raised by the bid protests. The District may choose to make specific findings on such challenges, but unless these issues meet federal protest criteria they will not be subject to EPA review should the District's determination be appealed to EPA. Summary of Federal Protest Procedure and State Bidding Requirements: EPA regulations require that the contract be awarded to the "lowest responsive, responsible bidder," while California law requires that the contract go to the "lowest responsible bidder". Apart from whether or not any of the protesting parties have complied with the procedural requirements in EPA's protest regulations, both EPA and the State require that the District determine the responsibility of the apparent low bidder. DISTINGUISHING BETWEEN RESPONSIVENESS AND RESPONSIBILITY In order for a bid to be responsive, it must be in accord with the material terms of the Bid Specifications. Prestex, Inc. v. U.S., 320 F.2d 367 (Ct. Claims 1963). A material term is one that could affect price, quantity, quality, or delivery, or one which is clearly identified in the bid specifications and which, for reasons of policy, must be complied with at the risk of bid rejection for nonresponsiveness. Paul Schnitzer, Government Contract Biddin~ (Federal Publications, Inc., Washington, DC 1976), at p. 237; Anne Arundel County (Protest of Johnston Construction Company) (EPA Region III, December 20, 1985). The general rule is that material requirements in the Bid Specifications cannot be waived or corrected after bid opening or merely substantially complied with on the bid form, whereas other terms of the bid documents which are properly matters of responsibility may be cured by substantial compliance, post-bid documentation, or waiver of non-material irregularities. See Schnitzer, supra. Bid documents should be examined in their entirety to determine, whether they contain clear and unambiguous language which makes compliance with a particular term a matter of responsiveness. Monterey Regional Water Pollution Control Agency, California (Protest of Mortenson/~atkin, a Joint Venture) (EPA Region IX, September 12, 1985). When the language of a particular specification is contradictory when read as a whole, the requirement will be considered a matter of responsibility, not responsiveness. City of Lorain, Ohio (Protest of Mosser Construction, Inc.) (EPA Region V, September 17, 1985). In this case, since the original Bid Specifications included both EPA's 1981 "Notice of Intent," making MBE/WBE requirements a subject of responsiveness, and the applicable 1983 regulations which left the determination of responsiveness or responsibily to the grantee, it is appropriate to infer that the District intended that the most recent applicable regulations apply to this proceeding. City of San Bernardino, California (Protest of MCI Constructors, Inc.) (EPA Region IX, January 15, 1986). The District was free, in preparing invitations for bids, to elect between making MBE/WBE requirements a matter of responsiveness or responsibility. The District elected to make the MBE/WBE requirements a matter of responsibility by virtue of the fact that it did not expressly and unambiguously state that the failure to supply MBE/WBE documentation would be considered a matter of responsiveness and would therefore cause rejection of the bid. The District used discretionary language with regard to the failure to submit MBE/WBE information required to be submitted with the bid in Addendum No. 2 of the Bid Form, which provided that failure to provide the MBE/WBE submittals "may" be cause for rejection of the bid. (Exhibit 5). Because of the absence of clear and unambiguous language in the Bid Specifications, and the presence of discretionary language in the Bid Form, the District has rendered compliance with the MBE/WBE requirements a matter of responsibility, not responsiveness. Determining the bidder's responsibility is a decision to be left to the sound administrative discretion of the contracting officials, whom EPA considers to be in the best position to assess responsibility, and who must bear the major brunt of any difficulties experienced in obtaining the required performance. City of San Bernadino, supra; see also Schnitzer, supra, citing 39 Comp. Gen. 705, 711 (1960). EPA has consistently held that a grant recipient's decision on questions of responsibility is a matter of discretion and is to be given great weight. See, e.g., St. Paul MWCC (Protest of Hoffman Electric Co.) (EPA Region V, October 18, 1984). EPA will reverse a recipient's protest determination only if it lacks a "rational basis." 40 C.F.R. Section 30.1145(f). See also, City of San Bernadinot supra. Under state law, the District is not required to distinguish between matters of responsibility and responsiveness: responsibility. all issues go to the question of Cal. Pub. Contracts Code Section 20207.4. Since applicable state law requires only that bids be awarded to the "lowest responsible bidder," the only matters which go to the issue of "responsiveness" are those specified in the invitation to bid for the Project. See Cal. Atty. Gen. Op. No. 49-257 (February 8, 1950) 15 Ops. Atts. 72. California has recently adopted legislation requiring that compliance with MBE/WBE requirements in prison construction contracts be a matter of responsiveness (Cal. Pub. Contracts Code Section 10108.5 (1985)), but there are no such statutory requirements applicable to construction contracts for public utility districts. Both the procedural status and substantive issues raised by each party protesting the award of the bid to Alta Pacific will be discussed in detail below. Since the procedural analysis will vary depending upon the time and forum in which the protest was raised, the protests are discussed first by party and then by the time and forum in which a specific allegation was made. I. PROTESTS OF THE ROEN CONSTRUCTION COMPANY A® Protest received via Mailgram on January 16, 1986. (Exhibit 10) In its written protest, Roen alleged that Alta Pacific had failed to achieve MBE/WBE goals or, in the alternative, had failed to make "positive good faith efforts" in an attempt to reach these goals; Roen also alleged that Alta Pacific had failed to list an electrical subcontractor and was itself not licensed to perform electrical work. 1. Procedural adequacy of protest under federal and state law: To the extent that the protest was based upon issues which first became apparent at the bid opening on January 8, 1985 -- Alta Pacific's omission of an electrical subcontractor and qualification to perform its own electrical work, as well as Alta Pacific's identification of MBE/WBE subcontractors participation percentage -- the Roen protest of January 16, 1985 was untimely, since the deadline for filing the protest was January 15, 1986. 4/ The allegation regarding Alta Pacific's MBE/WBE positive efforts was also untimely, as it was filed six days before Alta Pacific submitted its MBE/WBE positive effort documentation. Roen admitted at the February 3, 1986 Hearing on this matter that it had not actually examined the Alta Pacific MBE/WBE positive effort documentation before or since it made the allegation. (Exhibit 87). Roen thus had no basis for its original MBE/WBE positive effort protest, and did not file a proper protest under EPA regulations when Alta Pacific's MBE/WBE documentation became available. Roen has never specified any deficiencies in the Alta Pacific positive effort documents. Although EPA has recently permitted an untimely appeal which raised the issue of compliance with the MBE/WBE positive effort requirements under EPA's sua sponte review authority, the reason EPA gave for exercising its sua sponte review authority was that: "EPA has issued relatively few protest appeal decisions reviewing an assistance recipient's determination that an apparent low bidder has failed to meet EPA's positive effort requirement regarding minority and women's business enterprises". City of San Bernardino, supra, at p.4. This determination has been guided by EPA's City of San Bernardino opinion, hence it is not necessary for EPA to again exercise its sua sponte review authority. Moreover, this determination finds that the apparent low bidder has satisfied the MBE/WBE positive effort requirements, as discussed below. There have been numerous decisions by EPA affirming a grant recipient's determination that the apparent low bidder had satisfied the MBE/WBE requirements. See, eq. Anne Arundel County, supra; City ~ Cannon Falls Wastewater Treatment Facility, Minnesota (Protest of Lysne Construction Company) (EPA Region V, June 28, 1985); Lake Accotink Park Fairfax County Park Authority (Protest of E.E. Lyons Construction Co., Inc.) (EPA Region III, February 22, 1985). FINDING: Roen's written protest received January 16, 1986, was untimely under EPA regulations, including its premature protest of Alta Pacific's positive MBE/WBE efforts. Despite its failure to make a procedurally adequate protest under EPA criteria, Roen has raised several 4 Although the Roen protest was received only one day past the deadline, EPA strictly construes the timeliness requirements in its protest procedure. See discussion at pages 3-5, supra. EPA has held that a protest based on an issue apparent in the bid opening which was received by the grantee 16 days after the opening date was a "gross violation" of EPA's protest regulations. Anne Arendel Count~ (Protest of Allied Contractors)(EPA Region III, September 17, 1985). e issues for which the District may choose to make specific findings in arriving at its determination of the bidder's responsibility. 2. Substantive Issues: a. Failure to Comply with Positive Good Faith Faith Efforts to Achieve MBE/WBE Participation. Factual background: Roen has alleged that the Alta Pacific Bid is nonresponsive because Alta Pacific failed to reach the goals established for MBE and WBE participation (4.4% and 2%, respectively) and has, in the alternative, failed to undertake positive efforts to reach these goals. The bid specifications require that the low bidder either reach the MBE/WBE participation goals or document its "positive efforts" to achieve such goals. (Exhibit 2, p. 00020-2 and Section 00822). The MBE/WBE participation goals were established by the Division of Water Quality of the California Regional Water Quality Control Board (See Exhibit 76). The Alta Pacific Bid identified 0% participation by MBE and WBE subcontractors. MBE/WBE participation achieved by the other bidders, none of whom met the MBE/WBE participation goals, is as follows: MBE WBE Roen 1.8% 2% Sletten 5.5% 5/ 0 FruCon 3.0% 0 Monterey Mechanical 0 0 Dillingham .08% .04% Olsen 2.5% 0 The District also requested and received MBE/WBE positive effort documentation from the next three apparent low bidders, Roen, Sletten and FruCon, to determine why no bidder had met the MBE/WBE participation goals and to compare the positive efforts of the four low bidders. Although several contractors offered possible explanations for the low MBE/WBE participation and response, 5 Although Sletten claims 5.5% MBE participation, its list of MBE subcontractors indicates that the values of all MBE subcontracts are "approximate" and still subject to "negotiation." Moreoever, the Sletten subcontractor listing omits one of its identified MBE subcontractors, Don Garcia Paving and Excavation, for certain earthwork, backfill, and excavation work valued at approximately $160,000. Without this subcontract, Sletten's MBE participation falls to below 4%. (Exhibit 56). 10. John S. Stopyra, Jr., Purchasing Agent for FruCon, summarized these explanations most succinctly: "The first impression one derives is that response was relatively light from MBE/WBE organizations. The complexity of the project, the location and expansive duration to completion [nearly three years, according to the construction schedule in the Bid Specification] were intimidating to all bidders." (Exhibit 64). Analysis: Roen's MBE/WBE protest raises two different issues: what effect does the adequacy of Alta Pacific's MBE/WBE positive effort's have on the responsiveness or responsibility of the Alta Pacific bid, and to what extent has Alta Pacific actually satisfied the positive effort requirements? (1) The MBE/WBE requirement is a matter of responsibility. Factual Background: Section 00822 of the Bid Specifications (Exhibit 2) incorporates the requirements of 40 C.F.R. Section 33.240, which lists "affirmative steps" that a recipient must take to assure that small, minority, women's and labor surplus area businesses are awarded a fair share of work from EPA Clean Water Act Construction Grants. In general, EPA's MBE/WBE policy requires that the successful bidder either list a minimum percentage of MBE/WBE subcontractors or documents its "positive efforts" in attempting to secure these contractors. The Clean Water Act Grant Program Bulletin No. 113, "Minority Business Enterprise/Women's Business Enterprise Requirements for Construction Grants" (September 6, 1984), also included in Section 00822 of the Project Manual (Exhibit 2), specifies the necessary "positive efforts" for purposes of complying with 40 C.F.R. Section 33.240. Addendum No. 2 of the Bid Form (Exhibit 5) describes the documents which all bidders must submit with the bid, and includes a "List of Minority and women Business Enterprises to be used during construction." Addendum No. 2 states: "Failure to submit any of the above submittals may be cause for rejection of the bid." Analysis: In the original Bid Specifications, the District included a copy of EPA's "Intent to Issue Revised Minority Business Enterprise Policy for the Construction Grants Program, . . . and Procedures for the Implementation of the Minority Business Enterprise and Women's Business Enterprise Policies (46 Fed. Reg. 5686, January 19, 1981). Among the proposed "Grantee Responsibilities" in EPA's Notice of Intent was the requirement that the District: 11. "After bid opening or receipt of proposal(s), evaluate bids to determine whether they are responsive with respect to MBE/WBE requirements, determine whether offers contain the requisite MBE/WBE information, and determine whether apparent low responsive bidders are responsible and offerors are qualified under the policies." (Exhibit 2, p. 00822-43) The Bid Specifications also included the actual, applicable MBE/WBE regulation in effect for this project as published in the Federal Register on March 28, 1983 (see Exhibit 2, Bid Specifications, p. 00822-57). In contrast to EPA's 1981 Notice of Intent, the EPA MBE/WBE regulations adopted in 1983 do not specify that MBE/WBE requirements are a matter of "responsiveness." Recognizing the possible confusion which might have resulted from the Bid Specification's inclusion of both regulations, Addendum No. 1 (Exhibit 4) to the Bid Specifications, dated December 16, 1985, identifies the 1983 regulations as the applicable MBE/WBE requirements for this project. EPA has held that ambiguity in the MBE requirements in the bid specifications is harmless error. City of Chica~o, ~. (Protest of S.A. Healy et al) (EPA Region V, October 27, 1981). FINDING: Because the Bid Documents do not clearly and unambiguously state that the MBE/WBE requirements go to the issue of responsiveness, they are properly matters of responsibility. 6/ The District should therefore determine, following a careful consideration of the record, whether Alta Pacific has fulfilled its responsibility to use positive efforts to obtain MBE/WBE participation in this project. (2) Alta Pacific has adequately met the positive effort requirements set forth in the Bid Specifications, and in particular in Clean Water Act Bulletin No. 113. Factual Background and Analysis: Clean Water Act Bulletin No. 113 establishes both specific tasks which the bidder must perform in order to satisfy the positive effort 6 On February 10, 1986, the State Water Resources Control Board adopted Clean Water Act Bulletin No. 113A, which mandates that the MBE/WBE positive effort requirements be a matter of responsiveness, rather than leaving the decision to the grantee, for all EPA construction grant contracts which will be advertised after February 10, 1986. Since this project was advertised on November 7, 1985, Clean Water Act Bulletin No. 113A is inapplicable. Clean Water Act Bulletin No. 113, which allows grantees to choose whether to make the MBE/WBE requirements a matter of responsiveness or responsibility, remains applicable to this project. 12. requirements and deadlines by which those tasks must have been been completed. EPA Region IX has determined that the Clean Water Act Bulletin adequately interprets federal MBE/WBE requirements, including positive effort documentation. City of San Bernardino, supra. Because the basis for the Bulletin is federal law, a decision by EPA on this matter would preempt any contrary findings by the State Water Quality Control Board. Alta Pacific decided to bid this project on December 17, 1985. On the next day, Donald Kral, Secretary-Treasurer of Alta Pacific, began Alta Pacific's positive efforts to locate MBE/WBE firms. Alta Pacific's actions in meeting the positive effort requirements set forth in the Clean Water Act Bulletin No. 113 are analyzed in full below: Requirement 1.a: 7/ Requesting assistance from appropriate MBE/WBE assistance centers at least five working days prior to the need for referrals. Factual background and analysis: The deadlines for requesting referrals is tied to the deadline by which MBE/WBE firms must have received invitations to bid. MBE/WBE firms must receive invitations seven working days prior to bid opening. For this project, the deadline for MBE/WBE solicitations is December 27, 1985 (seven working days prior to the bid opening date of January 8, 1986). Referral center assistance requests must be made five working days prior to the need for the referrals. EPA has approved a referral request deadline of five working days prior to the MBE/WBE solicitation deadline. San Bernardino, supra. In this case, therefore, the deadline by which referred centers had to have been contacted is December 19, 1985. Alta Pacific contacted Homitz, Allen and Associates ("Homitz") by telephone on December 18, 1985, to request MBE/WBE referrals. Alta Pacific has provided a letter from Homitz documenting the date of the call and the fact that Homitz was unable to provide Alta Pacific with a referral list. (Exhibit 26). Although Homitz was listed as an appropriate referral center in the portion of Clean Water Act Bulletin No. 113 applicable to contractor's positive effort documentation, a separate section of the Bulletin addressed to the District noted that Homitz would provide referrals only if the District or the contractor hired Homitz to do so. In fact, the District had not contracted 7 These requirements are set forth in Clean Water Act Bulletin No. 113 and incorporated into Section 00822 of the Bid Specifications. (Exhibit 2). 13. with Homitz for this project. 8/ Addendum No. 1 to the Bid Specifications (Exhibit 4), dated December 16, 1985 and received by Alta Pacific after December 19, 1985, notified the prospective bidders that Homitz was not an appropriate referral center for this project. Since this Addendum did not reach Alta Pacific until after the deadline for contacting referral centers had passed, Alta Pacific had no basis for believing that it would not receive referrals from Homitz for this project. (Exhibit 87). Roen, Sletton and FruCon also contacted Homitz and received no referrals. (Exhibits 56, 62 and 64). Alta Pacific mailed referral requests to an additional 32 assistance centers on December 19, 1985. 9/ The deadline by which referral centers had to receive referral requests was December 19, 1985. The only referral center to provide any actual referrals to any bidder on this project was the SBA. 10/ The remainder of the staff's analysis therefore presumes that Alta Pacific's December 19, 1985 referral center mailing was late. Alta Pacific had at its disposal a list of certified MBE/WBE firms prepared by and for the use of the California Department of Transportation ("Caltrans") which is updated quarterly. (Exhibit 40). Alta Pacific used the most recent Caltrans list available (September of 1985) as the basis for mailing invitations to bid to 131MBE/WBE firms on December 20, 1985. These letters were sent one week before the deadline by which such firms were required to receive a solicitation from Alta Pacific. Alta Pacific also received a referral list from the Small Business Administration ("SBA") on December 26, 1985 which identified 225 MBE/WBE firms. (Exhibit 37). Nearly 8 No bidder has protested the District's failure to contract with Homitz for MBE/WBE referrals. The deadline for having filed such a protest was the bid opening date of January 8, 1986. 40 C.F.R. Section 33.1130(a). 9 Alta Pacific sent out referral requests to 19 more centers than were listed in Clean Water Act Bulletin No. 113 and incorporated into the Bid Specifications. None of the 13 referral centers identified in Attachment 4 of Clean Water Act Bulletin No. 113 responded to any of the bidders' requests' for referrals. 10 Mr. Kral, of Alta Pacific, testified that when he contacted OMBE, they informed him that they had subcontracted their referral duties to other organizations; these organizations, when contacted by Mr. Kral, reported that they did not serve the Lake Tahoe Area. (Exhibit 87). 14. one-third of the SBA list was composed of firms from the Phoenix, Arizona area; the remainder were from the San Francisco Bay Area. 11/ Alta Pacific promptly used this list and mailed an additional 71MBE/WBE solicitations on December 27, 1985. (Exhibit 69). Because the deadline by which MBE/WBE firms had to receive these solicitations was December 27, 1985, the Alta Pacific SBA mailing was late. Of the 22 replies Alta Pacific received from the MBE/WBE firms which it solicited for this project, 10 were from the Caltrans list, 8 were from the SBA list, and 2 appeared on both the Caltrans and SBA list. Thus the fact that the SBA mailing was made after the deadline did not prevent the firms which were solicited from responding to Alta Pacific before the bid opening date. Because Alta Pacific did not contact the SBA on or before the deadline of December 19, 1985, 12/ Alta Pacific's compliance with Requirement 1.a is primarily dependent upon whether Alta Pacific's use of the Caltrans referral list satisfies the requirement that Alta Pacific actively seek referrals from "appropriate referral centers." A careful comparison of September 1985 Caltrans list and the SBA list which Alta Pacific received on December 26, 1985 yields the following facts: First, the Caltrans list is updated regularly, whereas many entries in the SBA list had not been examined in three or more years. (Exhibit 78). Second, the Caltrans list contains firms from the Tahoe area, as well as from adjacent areas in the Central Valley and the remainder of California, whereas the SBA list contained only Arizona and San Francisco Bay Area firms. Third, the Caltrans list included more firms from all relevant craft and qualification categories than the SBA list. The Caltrans list contains an elaborate breakdown of 11 Roen, Fru-Con and Sletten also submitted SBA referral lists as part of their positive effort documentation. The Roen list contained only 54 firms, which Roen edited further for a total solicitation list of 44 MBE/WBE firms. The Fru- Con list contained 114 firms and Fru-Con actually solicited only 31 firms. The Sletten list contained 85 firms and Sletten attempted to solicit each one by telephone. The referral request letters sent by each of the four low bidders identified the same factors: the nature of the job and its location. (See Exhibits 26, 62, 63, 64, and 66). This lack of uniformity in the SBA referral process is due to the discretionary decisions made by the SBA employee responsible for issuing the referral lists. (See Exhibit 78). 12 Since only the SBA responded with a referral list, as a practical matter only Alta Pacific's failure to contact the SBA before the deadline is at issue in this project. 15. the work for which each contractor is qualified to perform, 13/ whereas the SBA list is broken down only into the general categories of construction, manufacturing, research and development, and service. (Exhibit 45). Finally, the Caltrans MBE/WBE certification process (see attachment A to Exhibit 69) ensures that only firms whic~ satisfy the federal Department of Transportation requirements will be included on the list. 49 C.F.R. Part 23. The SBA list is also based upon federal regulations incorporating the same type of MBE/WBE identification criteria. 13 C.F.R. Section 124.103. The firms identified on both lists therefore meet federal MBE/WBE criteria. The results of the SBA and Caltrans comparison indicate that the Caltrans list was a better source of MBE/WBE referrals than the SBA list. If Alta Pacific relied exclusively upon the SBA list for referrals in strict compliance with the Bid Specifications, it would have operated from an inferior referral listing. FINDING: Alta Pacific's timely use of the Caltrans list is actually better than timely use of a referral center list from the referral centers identified in the Bid Specifications. Alta Pacific has therefore substantially complied with Requirement 1.a, and its failure to contact the SBA before the deadline is a non-material irregularity which is waived. Requirement 2.a: Soliciting MBE/WBE businesses at least seven working days prior to the need of a bid response. Only Alta Pacific's December 20, 1985 mailing satisfies this requirement, hence the remainder of this analysis will be based upon the adequacy of that mailing. The fact that Alta Pacific did receive responses from firms on its December 27, 1985 mailing to 71 firms based on the SBA list, however, is relevant to Alta Pacific's good faith and substantial compliance, as is the fact that Alta Pacific placed an advertisement for MBE/WBE firms in a trade newspaper geared toward minority businesses. (Exhibit 26). FINDING: Based on its use of the Caltrans list, Alta Pacific solicited 131MBE/WBE businesses at least seven working days prior to the need of a bid response in satisfaction of Requirement 2.a. Requirement 2.b.1: Soliciting all or at least three MBE/WBE firms for each item of available work referred by the MBE/WBE assistance centers. 13 The Caltrans list includes code identifications for over 300 craft categories. 16. The purpose of this requirement is to require the bidder to make use of the referral lists it receives so as to guarantee that at least three (or all if there are fewer than three) MBE/WBE firms actually receive invitations to bid for each category of subcontracting work available. Alta Pacific first divided the available subcontracting work into 20 categories. 14/ Alta Pacific then used the Caltrans qualification codes to identify and solicit 131 MBE/WBE firms, including at least three, and as many as 23, MBE/WBE firms in each subcontracting category. (Exhibit 69). 15/ Had Alta Pacific relied exclusively upon the referral list supplied by SBA, it would have been able to solicit fewer than three referrals in two specialized and crucial categories: roofing and reinforcing steel. FINDING: Based on its use of the Caltrans list, Alta Pacific has more than satisfied its obligation under Requirement 2.b.1 to solicit at least three MBE/WBE firms for each category of subcontracting work available. Requirement 2.b.2: Directly soliciting MBE/WBE firms. Alta Pacific sent 131 solicitations to MBE/WBE firms by regular mail on December 20, 1985, one week prior to the December 27, 1985 deadline by which the MBE/WBE firms were required to receive the solicitation. The clear purpose of Requirement 2.b.2 is to force the bidder to actively seek a response, either positive or negative, from the solicited MBE/WBE firms. The Alta Pacific mailing included a return postcard which the MBE/WBE firms could tear from the solicitation and 14 The type of work available, and hence the number of categories for MBE/WBE solicitation, will vary according to the types of work each prime contractor intends to have performed by a subcontractor. 15 The Caltrans list did not have a separate code for Accoustical Tile work. There were, however, five firms with "B" licenses as general contractors with listed specialties in plaster and wallboard, roofing, wood framing, and/or finish carpentry; both by virtue of their license and their specialties, these firms would be able to perform accoustical tile work. Cal. Bus. & Prof. Code Section 7057; Cal. Admin. Code, Title 16, Section 830. Similarly, Alta Pacific contacted only two firms who were identified as being qualified to do Quarry and Ceramic Tile work, but the additional "B" licensees noted above whom Alta Pacific solicited would also have been qualified to do this work. .Ibid. 17. return to Alta Pacific. (Exhibit 26). The postcards which Alta Pacific received from the MBE/WBE firms, as well as the declarations of Donald Kral, Janice Toki, and Stacey Hewett (Alta Pacific officers and employees responsible for the MBE/WBE Solicitations (Exhibits 37, 38 and 39), also serve as evidence that the solicitations were actually sent to and/or received by the MBE/WBE firms. Since this requirement also serves the evidentiary purpose of proving that the solicitations were sent, Alta Pacific's return postcard method serves the same function as certified mail and documented telephone calls. Alta Pacific's use of return postcards, coupled with the time in which MBE/WBE firms had to respond to the Alta Pacific invitation, was also a sufficiently aggressive means to seek a response from the MBE/WBE firms. Both certified mail and documented telephone calls are nonmandatory options from which a bidder may choose, and both options have significant disadvantages to the return postcard method used by Alta Pacific. (See Exhibit 2, Section 00822). Certified mail can be very time consuming, particularly in firms which do not have daily office staffs. FruCon, for example, solicited 31MBE/WBE firms by certified mail on December 11, 1986. Only 23 firms received the letters before December 27, 1985, and two firms received them after that date. (Exhibit 64). Documented telephone calls are time-consuming and expensive, and it is difficult to verify that all relevant information was actually conveyed to the MBE/WBE firm in each instance. For example, Sletten's positive effort documentation consists of a telephone log which shows 85 attempted contacts, with 42 falling into the categories of no answer, no longer in service, or left message/no return call; moreover, there is no record of what Sletten representatives actually told those MBE/WBE firms it was able to contact. FINDING: The return postcard method used by Alta Pacific to solicit responses from solicited MBE/WBE firms is an appropriate alternative to certified mail and documented telephone calls. Alta Pacific has therefore substantially complied with Requirement 2.b.2, and its failure to use certified mail or document telephone calls is a non-material irregularity which is waived. Requirement 2.c: Listing all non-MBE/WBE subbidders for each item of work for which MBE/WBEs firms were solicited. Neither Alta Pacific nor the next three apparent low bidders provided a list of all subbidders for each item of work for which MBE/WBE firms were solicited. At the February 6, 1986 hearing on this matter, representatives of Alta Pacific testified that no non-MBE/WBE firms were solicited to work on this project. (Exhibit 88). 18. John Carollo Engineers ("JCE"), the construction management engineers for this project, also maintains an informal mailing list of approximately 400 prime-and subcontractors who were informed about this project from JCE directly. (Exhibit 82). JCE also sent out copies of the bidding package, including Drawings and the Plan Specifications, to over 100 Builders Exchanges and contractors. Therefore, non-MBE/WBE firms were able to contact Alta Pacific and other prime contractors directly, without prior solicitation, based on the availability of Plan Specifications and and list of Planholders (including Alta Pacific and other potential prime contractors) at various locations. FINDING: Requirement 2.c is inapplicable since Alta Pacific did not solicit any non-MBE/WBE subbidders. Requirement 3: Divide the work into small tasks or quantities to permit maximum participation by MBE/WBE firms. Along with the return reply postcard, the solicitations which Alta Pacific mailed to MBE/WBE firms on December 20, 1985 included a breakdown of the subcontract work which was available into 20 categories, and a further breakdown of each category into one of three approximate values: under $25,000, under $50,000, and over $50,000. This approach provided MBE/WBE firms with an excellent opportunity to immediately assess their capacity to perform the necessary work, even before consulting the Bid Specifications. We believe that of the four apparent lowest bidder, only Alta Pacific fully satisfied this important MBE/WBE criteria. 16/ FINDING: Alta Pacific fully satisfied Requirement 3 by dividing the subcontracting work available into 20 categories of work and 3 categories of approximate value. Requirement 4: Establish delivery schedules to permit maximum participation by MBE/WBE firms. 16 Neither Roen's nor Sletten's positive effort documentation indicated that they had broken down the work available by type or value. Fru-Con's documentation indicates that each of its solicitations contained a reference to a particular section in the Bid Specifications; because the Fru-Con solicitation does not indicate the projected size of the work (either by value, like Alta Pacific, or by an alternate approach such as man-hours, etc.), an MBE/WBE firm would be unable to discover whether it was in a position to bid on the work until it actually examined the Bid Specifications or contacted Fru-Con for further information. 19. Section 1310 of the Bid Specifications establish strict construction schedule guidelines. The location of copies of the Bid Specifications was identified in the Alta Pacific solicitation to the MBE/WBE firms, and Alta Pacific was prepared to amplify upon these schedules during the negotiation of an actual subcontract. None of the bidders who submitted MBE/WBE positive effort documentation included evidence of a delivery schedule. EPA has upheld waiver of this requirement under similar circumstances in City of San Bernardino, supra. FINDING: Requirement 4 is inapplicable since the Bid Specifications themselves establish the relevant delivery schedules. Requirement 5: and OMBE. Document contact with Homitz, the SBA This requirement does not specify a deadline by which the contact must be made, but is otherwise identical to Requirement 1.a, requiring contact with designated referral centers. FINDING: Alta Pacific did fulfill the express terms of Requirement 5 by virtue of its documented December 18, 1 985 telephone call to Mr. Wallace Homitz, and by virtue of its December 20, 1985 letters to SBA and appropriate offices of OMB~. o SUMMARY OF FINDINGS ON ALTA PACIFIC'S COMPLIANCE WITH THE MBE/WBE POSITIVE EFFORT REQUIREMENTS: Alta Pacific has substantially and in good faith complied with the MBE/WBE Positive Effort requirements based upon its timely use of the Caltrans referral list, its timely solicitation of a more than adequate number of MBE/WBE firms for each craft category, its breakdown of the work available by type and value, and its attempts to solicit responses from the MBE/WBE firms via the return postcard method. All of Alta Pacific's deviations from the positive effort requirements are waived as non-material irregularities which do not adversely affect the status of the Alta Pacific bid as responsive and responsible. b. Failure to List an Electrical Subcontractor. Factual background: Section 13 of the Instructions to Bidders (Exhibit 2) states: "If a bidder fails to specify a subcontractor for any portion of the work to be performed under this contract, in an ~amount of 0.5% of the total lump sum price or more, he agrees to perform that portion himself. No subcontractor doing work in 20. an amount of 0.5% of the total lump sum price or more and who is not listed will be used without the written approval of the Owner." Addendum No. 2 of the Bid Form requires all bidders to ~ submit a list of subcontractors with their bid. (Exhibit 5). Failure to submit this information, the Addendum ~ states, "may be cause for rejection of the bid." Alta Pacific did not list an electrical subcontractor; the value of the electrical work exceeds .5% of the value of the contract. Analysis: The purpose of requiring prime contractors to list subcontractors in their bids is to prevent bid shopping, which is prohibited under California Law. Cal. Gov. Code Section 4101, 4106. The Bid Specifications do not require that the prime contractor use an electrical subcontractor. In the absence of such a requirement, Alta Pacific may elect to do the electrical work itself by failing to list an electrical subcontractor, provided that it is qualified to do the work. Alta Pacific's legal qualifications are set forth in its operating license, the subject of a related allegation ~y Roen, and discussed in full in the following subpart. In addition, Alta Pacific has stated that it is qualified to and will perform the electrical work on this project. (Exhibit 8.) Alta Pacific has also provided the District with copies of the resumes of its key personnel. (Exhibit 25). The District has examined these resumes and is satisfied that both Alta Pacific's officers and its employees (including an an electrical specialist) are fully qualified to do the electrical work on this project. FINDING: Alta Pacific's failure to list an electrical subcontractor does not render its Bid nonresponsive or nonresponsible since Alta Pacific is not required to list subcontractors for work it intends to do itself. c. Failure to be Licensed to Perform Electrical Work. Factual background: Roen claims that Alta Pacific was not licensed to do electrical work. There is a special subcontractor license category ("C-10") for electrical work under Cal. Admin. Code Title 16, Section 832.10. Alta Pacific does not have this license. Analysis: Alta Pacific holds a "Class A" General Engineering Contractors License which qualifies it to do all types of work for projects such as sewage disposal plants and systems. Cal. Bus. & Prof. Code, Section 7056; Cal. Admin. Code Title~ 16, Section 830. Alta Pacific has provided a letter from the Contractor's License Board, dated January 27, 1986, which states that Alta Pacific, as an "A" 21. Licensee, is legally qualified to perform the electrical work associated with the project. To obtain a Class A license, Alta Pacific was required to prove to the Contractor's License Board that it was financially solvent (Cal. Bus. & Prof. Code Section 7067.5), that it satisfied experience and knowledge requirements (Cal. Bus. & Prof. Code Sections 7068, 7068.1, 7068.2, 7069), and that it filed a contractor's bond (Cal. Bus. & Prof. Code Section 7071.6). The District is entitled to rely upon the statement of the Contractor's License Board in determining whether a contractor has the correct license. City Council of the City of Beverly Hills v. Superior Court, 272 Cal. App. 2d 876, 77 Cal. Rptr. 850 (1969); see also Martin v. Mitchell Cement Contracting CO., Inc., 74 Cal. App. 3d 15, 140 Cal. Rptr. 424 (1977). FINDING: Alta Pacific is fully qualified to perform its own electrical work and does in fact intend to perform its own electrical work. B. Roen Protest Made at the District Hearing on February 3, 1986. 1. Procedural adequacy of protest under federal and state law. FINDING: The Roen protest first raised at the February 3, 1986 Hearing fail to satisfy the timeliness and written protest requirements in EPA regulations. 40 C.F.R. Section 33.1130; 40 C.F.R. Section 33.1115(b). The District will consider the substance of the protest as part of the District's responsibility determination. 2. Substantive issue: Failure to obtain a quote from a listed electrical supplier. Factual background and analysis: Roen alleged at the February 3 Hearing that Alta Pacific had listed Grove Madsen Industries, of Reno, as its electrical equipment supplier, without having first contacted or secured a bid from Grove Madsen. (Exhibit 87). The District notes that all all of the other bidders listed Westinghouse electrical equipment and Grove-Madsen as the Westinghouse supplier, indicating that Grove-Madsen was able to supply Westinghouse equipment at a competitive price. (See Exhibit 68). Grove Madsen is, however, only one of several Westinghouse dealers available to serve this project. The Roen representative testified at the hearing that while Alta Pacific's identification of Grove Madsen as its electrical supplier may not have been illegal, it was unethical and thus rendered the bid non- responsible. (Exhibit 87). Section 100 of the Bid Specifications state: 22. "Each bidder shall list on the form provided the name of the manufacturers or suppliers of the items of equipment and systems listed on the form which he proposes to furnish. Upon award of a Contract the named equipment shall be furnished. Substitutions will be permitted only if named equipment does not meet the specifications or the manufacturer is unable to meet the delivery requirements of the construction schedule." (Exhibit 2, page 00100, et seq.) (Emphasis added.) Addendum No. 2 of the Bid Form requires that bidders submit their "Equipment Supplier Listing," and that failure to do so "may be cause for rejection of the Bid." (Exhibit 5). Listing of equipment suppliers is not governed by the anti-bid shopping provisions of the Subcontractor listing laws (Cal. Gov. Code Sections 4100 e~ seq.). Moreover, EPA has consistently determined that unless the bid specifications "clearly and unequivocably" state that bidders must list their proposed suppliers, the bid cannot be rejected as nonresponsive for failure to submit such a list. City of Brandenton, ~upra; New Hampshire Water Supply and Pollution Control (Protest of Catamont Construction, Inc.) (EPA Region I, March 28, 1984). The issues raised by Roen in this matter, Alta Pacific's ability to deliver Westinghouse equipment to the job and Alta Pacific's listing of Grove Madsen as its supplier, need only be evaluated to the extent that they may render the Alta Pacific Bid non- responsible within the terms of the Bid Specifications. The Bid Specifications establish certain substantive restrictions on substitutions of identified equipment, but do not require the use of any one supplier for the delivery of this equipment. Grove Madsen, one of several suppliers of Westinghouse equipment, is not at present under contract to Alta Pacific. Grove Madsen has stated its willingness, however, to "sell the [necessary Westinghouse] electrical apparatus to Alta Pacific Constructors for the subject proposal at a price (Based on a Specific Bill of Material) that is competitive with the pricing quoted at bid time." (Exhibit 68). Since the listing of an electrical supplier is an issue of responsibility, rather than responsiveness, it may be cured by post-bid documentation, substantial compliance, or waiver of non-material irregularities. Schnitzer, Government Contract Bidding, su__u~; see also, City of Brandenton, Florida (Protest of ICOS/Hycon Joint Venture) (EPA Region IV, July 15, 1985). Alta Pacific has provided post-bid documentation of Grove Madsen's agreement to supply the necessary equipment at a competitive price. (Exhibit 23. 68). This letter has adequately cured any issues raised by Alta Pacific's identification of Grove Madsen as its electrical supplier in the Bid. FINDING: The identification of Grove Madsen in the Alta Pacific Bid, whether or not Grove Madsen is retained by Alta Pacific as its electrical supplier, .does not render the Alta Pacific Bid non-responsible. Alta Pacific has provided adequate post-bid documentation of its ability to ensure the delivery of Westinghouse equipment to the job. C. Roen Protest Made at the District Hearing on February 6, 1985. 1. Procedural adequacy of protest under federal and state law: FINDING: This Roen protest fails to satisfy the timeliness and written protest requirements in EPA regulations. 40 C.F.R. Section 33.1130; 40 C.F.R. Section 33.1115(b). The District will consider the substance of the protest as part of its responsibility determination. 2. Substantive Issue: Alta Pacific failed to contact Homitz to request MBE/WBE referrals. ' Factual background: A representative of Roen introduced to the record a letter dated February 4, 1986 from Wallace Homitz to Roen. (Exhibit 52). In substance, the letter stated that Wallace Homitz had never heard of or from Alta Pacific or any of its officers, and had not received a referral request for this project from Alta Pacific. The February 4, 1986 letter is in direct conflict with an earlier letter sent by Homitz to Jim Pelletier, President of Alta Pacific, dated December 18, 1985. (Exhibit 26). In the earlier letter, Homitz thanked Mr. Pelletier for his telephone call requesting that Homitz provide Alta Pacific with MBE/WBE referrals for this project, and confirmed in writing that Homitz had not been retained by the District to provide referral services for this project. Analysis: Both letters are written on Homitz stationary and signed by Wallace Homitz. Subsequent to the February 6, 1986 hearing, Mr. Homitz telephoned John Carollo Engineers and asked that Mr. Joe McNeil be informed that Alta Pacific had contacted Homitz and Homitz had in fact acknowledged this contact by mail response to Alta Pacific on December 18, 1985. (Exhibit 79). FINDING: The Roen pr,3test is not supported by the evidence and thus is not an issue which affects the responsiveness or responsibility of the Alta Pacific Bid. 24. II. PROTEST OF MID STATE ELECTRIC COMPANY A. Protest Received by Mail on January 17, 1986. 1. Procedural adequacy of protest under federal and state law. Since the deadline for protests based on issues which were apparent on the bid opening date was January 15, the Mid State protest was untimely. 40 C.F.R. Section 33.1130. Moreover, Mid State has standing to file a protest appeal for only those issues which relate to the award of a subcontract by the prime contractor. 40 C.F.R. Section 33.1120(c). Since this proceeding concerns the award of a prime contract, rather than a subcontract, Mid State does not have standing in this matter under EPA protest regulations. Moreover, EPA has held that a subcontractor who is not listed by the prime contractor also lacks a "direct financial interest" and has no standing under 40 C.F.R. Section 33.1120(c) City of Columbus, Ohio (Protest of Zimpro, Inc.) (EPA Region V, January 12, 1983). The District may consider whether the issues raised affect the responsibility of Alta Pacific. FINDING: Mid State's protest received January 16, 1986 was untimely and made by party lacking proper standing at this time under EPA regulations. The District will consider the substance of the protest as part of its responsibility determination. 2. Substantive Issues: Se Subcontractor Failure to List an Electrical Analysis: see part I.A.2.b, supra. FINDING: Alta Pacific's failure'to list an electrical subcontractor does not render its Bid nonresponsive or nonresponsible since Alta Pacific is not required to list subcontractors for work it intends to do itself. There is no evidence that Alta Pacific intends to engage in bid shopping as a result of its failure to name an electrical subcontractor. b. Failure to List the Name, Business Address, and Portion of the Work to be Performed by each Subcontractor Factual background: Addendum No. 2 to the Bid Specifications requires that bidders submit a list of subcontractors on a form which includes a space for "business address." Failure to submit this form "may be cause for rejection of Bid." (See Exhibits 2,5). Alta Pacific listed the name of its subcontractors, the city in which each was located, and th~ type of work each was to perform. Analysis: The actual street address of the Alta Pacific subcontractors is readily available based on the information given in the list Alta Pacific submitted with its bid. FINDING: Alta Pacific's failure to list the street address of its listed subcontractors is a non-material irregularity which is waived by the District. c. Failure to Obtain a Quotation from the Listed Electrical Supplier Analysis: see part I.B.2, supra. FINDING: The identification of Grove Madsen in the Alta Pacific Bid, whether or not Grove Madsen is retained by Alta Pacific as its electrical supplier, does not render the Alta Pacific Bid non-responsible. Alta Pacific has provided adequate post-bid documentation of its ability to ensure the delivery of Westinghouse equipment to the job. III. PROTEST OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 401 A. Letter of Protest received on January 16, 1986. 1. Procedural adequacy of protest under federal and state law: The deadline for filing a protest based on issues which were evident at the time of the bid opening was January 15, 1986, hence the IBEW protest is untimely. 40 C.F.R. Section 33.1130. The IBEW does not have standing in this matter since it has no direct financial interest which has been adversely affected by this award decision. 40 C.F.R. Section 33.1110. Although EPA apparently has never considered a protest appeal filed by a union, it has summarily dismissed an appeal brought by a trade association of contractors for lack of standing. Westchester County, New York (Protest of General Building Contractors) (EPA Region II, March 3, 1976). Thus the plain language of the regulation and EPA's strict interpretation of the "direct financial interest" criterion preclude a union from having standing in an EPA protest appeal. Since the protest does not meet EPA procedural criteria, it may only be considered by the District as part of its responsibility determination. FINDING: The IBEW protest received January 16, 1986 fails to satisfy the timeliness and standing requirements in EPA regulations. The District will consider the substance of the protest as part of its responsibility determination. 2. Substantive Issue: Failure to obtain a C-10 license to perform electrical work necessary for the job. Factual background: IBEW alleged that Alta Pacific did not have a special electrical work license (designated "C- 10") and was thus not qualified to do its own electrical work. IBEW further alleges that since Alta Pacific is not qualified to perform this work and since it did not list an electrical subcontractor, the District should reject the bid as non-responsible on the grounds that acceptance of the bid would allow Alta Pacific to engage in bid shopping. Analysis: see discussion in subpart I.A.2.b and I.A.2.c, supra. FINDING: Alta Pacific's failure to list an electrical subcontractor does not render its Bid nonresponsive or nonresponsible since Alta Pacific is not required to list subcontractors for work it intends to do itself. Alta Pacific is licensed to perform its own electrical work, is fully qualified to perform its own electrical work, and intends to perform its own electrical work. B. Letter of Protest Received January 28, 1986. 1. Procedural adequacy of protest under federal and state law: FINDING: This protest is procedurally inadequate under EPA regulations for lack of standing and timeliness. The District may nonetheless consider the following issue in making its determination that Alta Pacific is a responsible bidder. 2. Substantive issue: Failure to list subcontractor may be an attempt to avoid the prevailing wage system. Factual Background: The Invitation to Bid (Section 100 of the Bid Specifications, P. 00100-9, Exhibit 2) provides in pertinent part: "Pursuant to 1770 of the California Labor Code, the Successful Bidder shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Copies of such prevailing rate of per diem wages are on file at the office of the Owner, which copies shall be made available 7e to any interested party on request. The Successful Bidder shall post a copy of such determination at each job site." (Emphasis added). Analysis: By submitting a bid on this project, Alta Pacific has agreed to pay prevailing wages to all of its workers, including those doing its electrical work. The District has the responsibility, as the Grantee, to enforce prevailing wage rates, and has established an extensive inspection and monitoring system to ensure that the prevailing wage is being paid. See, e.g., testimony of Joe McNeil at February 3 and February 6 hearings. (Exhibits 87 and 88). See also testimony of Donald Kral of Alta Pacific at the 'FeBruary 6 hearing. (Exhibit 88). There is no evidence that Alta Pacific intends to pay its workers less than prevailing wages, much less evidence that the reason Alta Pacific did not subcontract its electrical work was to avoid paying prevailing wages. FINDING: Alta Pacific's failure to list an electric subcontractor has.no impact on Alta Pacific's obligation to comply with the prevailing wage laws. There is no evidence that Alta Pacific did not subcontract its electrical work in order to avoid paying prevailing wages. This issue does not render the Alta Pacific Bid nonresponsive or nonresponsible. C. Protest Made at the Hearing on February 3, 19861 1. Procedural adequacy of of protest under federal and state law: FINDING: The protest was not filed in a timely fashion, by a proper party, or in a proper form, and hence should not be subject to EPA review. The District will consider the issues raised in this protest as part of its responsibility determination. 2. Substantive Issues: a. Listing of an electrical supplier from whom Alta Pacific had failed to solicit a bid. Analysis: set forth at part I.B.2, supra. FINDING: The identification of Grove Madsen in the Alta Pacific Bid, whether or not Grove Madsen is retained by Alta Pacific as its electrical supplier, does not render the Alta Pacific Bid non-responsible. Moreoever, Alta Pacific has provided adequate post-bid documentation of its ability to ensure the delivery of Westinghouse equipment on the job. b. Inability of an open shop contractor to comply with the state apprenticeship requirements. 28. Factual background: On January 29, 1986, the District received a letter from an Apprentice Training Representative of the U.S. Department of Labor (Exhibit 35), informing the District that the contractor chosen to do this project would be required to comply with Division 3 of the California Labor Code, relating to the training of Apprentices. In brief, Section 1777.5 of the Labor Code requires that all contractors (both union and non-union) train apprentices and maintain a ratio of not less than one apprenticeship for every five journeymen in each craft category. Mr. Bud Rogers, of the Associated General Contractors, testified at the February 6, 1986 Hearing that historically, certain unions, including the Carpenters', have refused to dispatch apprentices to non-union contractors. When that is the case, non-union contractors employed for public works projects are instead required to contribute a designated amount, based upon the number of journeymen employed in that craft category, to the California Apprenticeship Council for apprenticeship training. Mr. Jim Pelletier and Mr. Donald Kral, both of Alta Pacific, testified that they anticipate hiring more than five journeymen in the carpentry and labor categories. (Exhibit 88). Pelletier and Kral acknowledged that they would therefore apply for certification to train apprentices and request apprentices from the appropriate Joint Apprenticeship Training Committee ("JATC") upon award of the contract. Kral also recited the penalties to which Alta Pacific would be subject if it violated the apprenticeship requirements, and testified that Alta Pacific had no intention of violating the apprenticeship laws. (Ibid). Analysis: Upon award of a public works contract, the contractor is required to apply to the regional JATC for each relevant craft category for a certificate approving the contractor under the apprenticeship standards to train apprentices. Cal. Labor Code Section 1777.5. JATCs are usually, though not exclusively, operated by unions. It is within the discretion of the JATC to certify the contractor for apprenticeship training (subject to review for approvals only by the state's Division of Apprenticeship Standards). JATCs may also choose whether or not to dispatch an apprentice to any given contractor. If the JATC does dispatch an apprentice to a non-union contractor, the non- union contractor is required to pay the benefit portion of the apprentice's wage to the union. If the JATC does not dispatch an apprentice to a non-union contractor who has employed five journeymen in that trade category, and the contractor is thereby unable to hire a certified apprentice, then the contractor must pay a designated amount to the California Apprenticeship Council for apprenticeship training programs. Cal. Labor Code Section 1777.5. 29. Alta Pacific is not in violation of any provision of the apprenticeship training law, nor has any evidence been presented to prove that Alta Pacific intends to or will violate the apprenticeship training law. FINDING: Alta Pacific is able and willing to comply with the legal requirements pertaining to apprenticeship as they become applicable. This allegation does not affect the responsibility or responsiveness of Alta Pacific's bid. IV. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 1789 A. Protest made at the January 16, 1986 Hearing. Procedural adequacy of protest under federal and state law: FINDING: The oral protests raised by members of the Carpenter's union at the January 16 hearing fail to satisfy the timeliness, standing, or form standards of EPA protest regulations. The District will thus consider the substance of the protest as part of its responsibility determination. Substantive Issue: Responsibility. Alta Pacific's Lack of Factual background and analysis: The record contains the results of an exhaustive investigation into Alta Pacific's legal and financial records. First, the resumes of the key employees of Alta Pacific (Exhibit 28) demonstrate that Alta Pacific has licensed and experienced personnel who are fully qualified to perform this contract. Joe McNeil of John Carollo Engineers also personally checked the references of the key Alta Pacific officers, as well as some prior employers who were not listed as references, and was thoroughly satisfied with the results of that investigation. (Exhibit 43). Second, Alta Pacific has provided an adequate bond issued by the American Insurance Company (Exhibit 25). The American Insurance Company is a very highly rated (A)15 bonding company. (Exhibit 66). Third, Alta Pacific, its officers, and its parent company, the Rados Corporation, have no pattern of violations or any significant violation of the state contractors law. (Exhibit 53). Fourth, the records of the California Department of Corporations indicate that Alta Pacific is a newly formed corporation in good standing with the California Corporation laws. (Ibid). Fifth, the safety records of projects in which Alta Pacific officers were involved, as well as the safety records of other Rados-owned subsidiaries on file with the California Department of Occupational Safety and Health demonstrate that, for the past three years, no Rados-affiliated company has had a 30. serious injury-related safety violation. (Exhibits 53 and 80). The record reveals that Alta Pacific, its officers and employees, its parent, the Rados Companies, and other affiliates of the Rados Companies, have no record of financial instability and have admirable records at the California, Contractor's License Board (to which Walter Rados was named a member earlier this year) and with Cal OSHA. Although Alta Pacific is a new company, it is staffed by qualified personnel and owned by ~ responsible, experienced individuals. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. B. Protest received by mail on January 23, 1986. 1. Procedural adequacy of protest under federal and state law. FINDING: The issues first raised in the Carpenter's letter received January 23, 1986 fail to meet EPA protest criteria for standing and timeliness. The District may nonetheless consider the following issues as part of its responsibility determination. 2. Substantive Issues: a. Questioning the ability of a newly formed company to perform the electrical work on a project of this size. Analysis set forth in Subpart IV.A, supra. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. b. Questioning whether the responsible corporate officers of Alta Pacific had been found to have violated the state contractors laws in the past under other company names. Analysis set forth in Subpart IV.A, supra. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. c. Questioning how a newly formed company could have had adequate records of accidents for the past three years. 31. Analysis set forth in Subpart IV.A, supra. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. d. Questioning how a newly formed company could meet the requirements set forth in Part 3.301 of the Instructions to Bidders, requiring that the bidder be prepared to submit, within five days of Owner's request, written evidence that they have a practical knowledge of the particular work bid upon, and that they have the financial resources to complete the proposed Work. Analysis set forth in Subpart IV.A, supra. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. e. Requesting the Owner to conduct thorough investigations of the low bidder under Part 20, Award of Contract, Section 20.04, (Exhibit 2, p. 00100 et. seq.) to establish responsibility, qualification, and financial ability of the apparent low bidder, proposed subcontractors, and others to do the work. Analysis set forth in Subpart IV.A, supra. FINDING: Alta Pacific is legally qualified, financially able and fully responsible to do this job in accord with the Bid Specifications. f. Questioned how Alta Pacific could comply with the apprenticeship requirements set forth in Section 1777.5 of the California Labor Code. Analysis set forth in Subsection III.C.2.b, supra. FINDING: Alta Pacific is able and willing to comply with the legal requirements pertaining to apprenticeship as they become applicable. This allegation does not affect the responsibility or responsiveness of the Alta Pacific bid. g. Questioned how the prevailing wage rates could be enforced at an open shop contractor. Analysis set forth in Subsection III.B.2, supra. FINDING: Alta Pacific is required to comply with the prevailing wage requirements set forth in the Bid 32. Specifications, and the District has established adequate means of enforcing this requirement. C. Protest Made at the Hearing on February 3, 1986. 1. Procedural adequacy of protest under federal and state law: FINDING: The issues first raised by representatives the Carpenter's Union at the February 3, 1986 Hearing fail to meet the EPA protest criteria of timeliness, standing, and form of protest. The District will thus consider these issues as part of its responsibility determination. 2. Substantive Issue: Questioned how 75% of local employees could be guaranteed employment on the job. Factual background: Mr. Doug Thomas of the Carpenter's Union and others present at the Hearing stated that union contractors were required to hire 75% of their workforce locally. Thomas questioned whether Alta Pacific, a non- union contractor, intended to hire the same percentage of local employees. Mr. Pelletier, of Alta Pacific, responded by informing the District that Alta Pacific would bring 6 to 10 of its own employees to the job, and that he intends to hire the remaining 30 to 35 employees locally if qualified employees are available. Mr. Pelletier also said he was willing to hire union or non-union employees, provided that unions gave their members permission to work on the job. Analysis: The Bid Specifications do not require a given percentage of local employees, nor do any applicable provisions of state or local law mandate that a percentage of public works contracts be allocated to local workers. Alta Pacific has committed to and will supply an adequate workforce for this job. FINDING: The issue does not affect the status of the Alta Pacific Bid as responsive and responsible. D. Protest Received by Mail on January 29, 1986. 1. Procedural adequacy of protest under federal and state law: FINDING: The protest does not meet the EPA protest criteria of timeliness or standing. The District will thus consider the issue as part of its responsibility determination. 2. Substantive Issue: Questioned the relationship of Walter Rados to Alta Pacific, and specifically whether 33. Walter Rados had an undisclosed interest in the project, whether his participation resulted in fraud or scam, whether he had solicited or induced any person to refrain from bidding, and whether he had colluded to obtain an advantage over any bidder. Factual Background: Section 310, Instructions to Bidders, requires that Bidders certify that the bid is not made in the interest of, or in the behalf of, any undisclosed person, firm or corporation. Analysis: There was unrefuted testimony at the Hearing on February 3, 1986 that Walter Rados was one principal shareholder of Alta Pacific, but that he is not an officer, director, or employee of Alta Pacific, nor was he involved in preparing the Alta Pacific bid. (Exhibit 87). FINDING: There is no evidence to support this allegation, hence the issue does not render the Alta Pacific Bid nonresponsive or nonresponsible. V. PROTEST OF THE DON GARCIA PAVING AND EXCAVATION COMPANY Protest presented at the Hearing on February 3, 1986, by Mrs. Don Garcia. 1. Procedural adequacy of protest under federal a~d state law: FINDING: The protest does not meet EPA protest criteria for timeliness, standing, or form. The District will thus consider Mrs. Garcia's protest pursuant to its responsibility determination. 2. Substantive issues: a. Alta Pacific failed to contact the Don Garcia Paving and Excavation Company as part of its MBE/WBE positive efforts. Factual background: Mrs. Garcia claimed that her company was a local MBE/WBE company and a subscriber of the Daily Construction Service and never received a request for quotations as a "paving and landscaping subcontractor" from Alta Pacific. Mrs. Garcia therefore questioned the positive good faith effort of Alta Pacific to comply with the positive effort requirements. Analysis: Neither Alta Pacific nor four of the other bidders placed advertisements in the Daily Construction Service, a trade paper of general circulation, for MBE/WBE referrals for this project. (Exhibit 81.) Don Garcia Paving Company was not listed in any of the SBA MBE/WBE referral lists, but was one of the hundreds of firms 34. appearing on the Caltrans list. The MBE/WBE positive effort requirements do not mandate contact of all or any local MBE/WBE contractor, or any specific MBE/WBE contractor. (Exhibit 2, Section 00822). Alta Pacific was required to send invitations to only three MBE/WBE paving subcontractors (see discussion of Requirement 2.b.1 in Subpart I.A.2.a, supra). In fact, Alta Pacific sent invitations to 31MBE/WBE paving subcontractors. (Exhibit 69). The Don Garcia company had submitted bids to several of the prime contractors, had ready access to the list of plan holders and potential prime contractors, and could easily have contacted Alta Pacific with a bid quotation. FINDING: Alta Pacific's failure to contact Mrs. Garcia's company does not alter the outcome of the analysis set forth in Subpart I.A.2.a, which shows that Alta Pacific has complied with the MBE/WBE positive effort requirements. This issue does not render the Alta Pacific Bid nonresponsive or nonresponsible. b. Alta Pacific failed to advertise for MBE/WBE firms in the Daily Construction Service. Facts: In the December 16, 1985 issue of the Daily Construction Service, two bidders, Homer J. Olsen, Inc. and Roen, requested quotes from MBE/WBE subcontractors for this project. No other bidders advertised in the Daily Construction Service in December or before January 8, 1986. (Exhibit 81). Analysis: The positive effort requirements set forth in Clean Water Act Bulletin No. 113 do not require that contractors advertise for MBE/WBE subcontractors in trade papers. Such advertisements, in fact, fail to meet the criteria for directly soliciting MBE/WBE subcontractors. (Requirement 2.b.2., discussed in Subpart I.A.2.a., supra) In addition to directly soliciting 201MBE/WBE firms, Alta Pacific placed an advertisement in the Minority Business Exchange, a San Francisco publication geared directly to MBE/WBE firms. (Exhibit 26). FINDING: Alta Pacific was not required to advertise for MBE/WBE subcontractors. Its failure to advertise in the Daily Construction Service does not render the Alta Pacific bid nonresponsive or nonresponsible. VI. PROTEST OF PUBLIC PETITIONERS 1. Procedural adequacy of protest under federal and state law: FINDING: The protest fails to satisfy the EPA protest criteria of timeliness, form, or standing. (See, e.g.) Rochester Pure Water District (Protest of Schiavone 35. Construction Co.) (EPA Region II, November 30, 1982, in which EPA found that a party filing a protest in the "public interest" lacks standing under the EPA protest procedure.) The District will thus consider Petitioners' protest as part of its responsibility determination. 2. Substantive issue: Petition requested that the District not award the contract to Alta Pacific because ~of unspecified "unfair bidding practices" which rendered ~lta Pacific non-responsible.- Factual background: Residents of the South Lake Tahoe area presented a petition signed by approximately 100 residents of the District at the Hearing on February 3, 1986. (Exhibit 46). The District also received a letter by Vernon Gerbracht, a concerned member of the public, which addressed the same issue. (Exhibit 71). Analysis: The District has conducted an exhaustive investigation of all specific allegations of bid improprieties as well as general questions about the financial capacity, legal status, and general responsibility of Alta Pacific. The results of these investigations, as reflected both by the record and these findings, do not reveal any evidence to substantiate Petitioners' claim. FINDING: The District has the responsibility of ehsuring that Alta Pacific is a responsible, responsive bidder, and is satisfied with the conclusion that Alta Pacific meets these standards and has not engaged in any unfair bidding practices. VII. PROTEST OF SLETTEN CONSTRUCTION COMPANY. Protest received via Mailgram on February 4, 1986. 1. Procedural adequacy of protest under federal and state law: FINDING: The Sletten protest fails to meet the EPA protest criteria of timeliness, hence the District will consider the following issues as part of its responsibility determination. 2. Substantive Issue: Failure to meet MBE/WBE goals or use positive efforts in an attempt to meet those goals. Analysis set forth at Part I.A.2.a, ~upra. SUMMARY OF FINDINGS ON ALTA PACIFIC'S COMPLIANCE WITH THE MBE/WBE POSITIVE EFFORT REQUIREMENTS: Alta Pacific has substantially and in good faith complied with the MBE/WBE Positive Effort requirements based upon its timely 36. use of the Caltrans referral list, its solicitation of a more than adequate number of MBE/WBE firms for each craft category, its breakdown of the work available by type and value, and its attempts to solicit responses from the MBE/WBE firms via the return postcard method. All of Alta Pacific's deviations from the positive effort requirements are waived as non-material irregularities which do not adversely affect the responsibility or responsiveness of the Alta Pacific Bid. VIII. PROTEST OF CARPENTERS 46, JOINT APPRENTICESHIP TRAINING COMMITTEE. Letter of Protest Received February 5, 1986 and Oral Evidence Thereon Presented at Hearing on February 13, 1986. 1. Procedural adequacy of protest under federal and state law: FINDING: The protest is procedurally defective for timeliness, form and standing purposes under EPA regulations. The allegation raised is also factually incorrect for the reasons set forth in Part III.C.2.b, supra. The District will consider the issue as a part of its responsibility determination. 2. Substantive Issue: Alta Pacific is unable to comply with the apprenticeship requirements under state law. Factual Background: Carpenters 46 JATC stated in their letter that "only signatory [i.e., union] companies are approved to employ and train apprentices registered with the Division of Apprenticeship Standards." (Exhibit 54). Analysis set forth in Subsection III.C.2.b, supra. FINDING: Alta 'Pacific is able and willing to comply with the legal requirements pertaining to apprenticeship training as they become applicable. This allegation does not affect the responsiveness or responsibility of Alta Pacific's Bid. DETERMINATION Alta Pacific is the lowest responsive, responsible bidder. 37. Adopted at a duly held adjourned regular meeting of the Board of Directors of the South Tahoe Public Utility District on February 13, 1986. John~d~ynn, Chairm~n Board of Directors South Tahoe Public Utility District ATTEST: Pat A. Mamath, Clerk of the Board South Tahoe Public Utility District 38. NOTICE OF ADJOURNMENT TO WHOM IT MAY CONCERN: NOTICE IS HEREBY GIVEN THAT THE REGULAR MEETING OF THE BOARD OF DIRECTORS OF THE SOUTH TAHOE PUBLIC UTILITY DISTRICT, HELD ON THE llth DAY OF February, 1986 1-.OOP,M, AT THE REGULAR MEETING PLACE WAS ADJOURNED BY ORDER OF THE BOARD OF DIRECTORS TO THE 13th DAY OF Fcbruary~ 1986 AT 8:00 P ,M,, MEEIING AT: 1900 Lake Tahoe Blvd. City ~ervices Center. SOUTH TAHOE PUBLIC UTILITY DISTRICT DATED: February 11. 1986 1 ORDINANCE NO. 381 2 AN ORDINANCE OF THE SOUTH TAHOE PUBLIC UTILITY DISTRICT AWARDING CONTRACT FOR 3 WASTEWATER RECLAMATION PLANT IMPROVEMENTS, TREATMENT PLANT IMPROVEMENTS - CONTRACT NO. 1 4 SOUTH TAHOE PUBLIC UTILITY DISTRICT BID NO. 84-85-16 $ GRANT PROJECT NO. C-06-1414-110 6 .~.. .; .WHEREAS, pursuant to order of this Board of Directors of ? the South Tahoe Public utility District ("DISTRICT'i), County of E1 8 Dorado, State of California, notice was duly given for receiving bids 9 for Wastewater Reclamation Plant Improvements, Treatment Plant 10 improvements - Contract No. 1, South Tahoe Public Utility District, 11 Bid No. 84-85-16, Grant ~roject No. C-06-1414-110,.~and seven (7) bids 12 were received at the time and place' spehified, at 2:00 P.M. on Wed-~- 13 nesday, January 8, 1986, and publicly opened; an~ 14 WHEREAS, Alta-Pacific Constructors, Inc. ("ALTA-PACIFIC") 15 was the apparent low bidder for the bid and for the bid with the 16 DISTRICT electing deductive ~'Iternative A, furnishing and installing a 17 final effluent pump motor that meets mechanical and operational 18 requirements set forth in the Project Manual; and 19 WHEREAS, commencing January 16, 1986 and thereafter, the 20 DISTRICT received protests to awarding the Contract for construction 21 of said Treatment Plant Improvements to the apparent low bidder, ALTA-PACIFIC, from C. W. Roen Construction Company ("ROEN"), Mid 23 24 25 26 State Electric Company ("MID STATE"), Local 401 of the International Brotherhood of Electrical Workers ("IBEW"), Local 1789 of the United Brotherhood of Carpenters and Joiners of America ("CARPENTERS"), Don Gar¢ia Paving and Excavation, Residents of District "RESIDENTS") JOHN C. Wr'IDMAN TELEPHONE 622-5260 ! 2 3 4 5 6 7 8 9 1]. 12 14 ]6 17 18 20 2]. 22 23 24 25 26 JOHN C:. W£1DMAN AI~OR~EY AT ~AW ~8 MAIN ITRE~T 'LACERVILLE. CA 95~67 TI~.EPHON E G22-5260 Sletten Construction Company ("SLETTEN"), and Carpenters 46, Joint Apprenticeship Training Committee ("CARPENTERS JATC"); and WHEREAS, the Board of Directors of the DISTRICT heard all ~rotests at duly held noticed public hearings on February 3, 1986, ?ebruary 6, 1986, and this date prior to enactment of this Ordinance No, 381~ and WHEREAS, the Board of Directors, prior to the enactment of this said Ordinance at an adjourned regular meeting on Febru- ary 13, 1986, following all public hearings on the protests, made findings and a determination for South Tahoe Public Utility District regarding said protests and specifically determined that ALTA-PACIFIC submitted the lowest, responsive~ responsible bid for the work of the Wastewater Reclamation Plant Improvements, Treatment Plant Improvements - Contract No. 1, and for the bid with the DISTRICT electing deductive Alternative A, furnishing and installing a final effluent pump motor that meets mechanical and operational require- ments set forth in the Project Manual, the original of said findings and determination being on file with the Clerk of the DISTRICT and available for public inspection, and which said findings and deter- mination are incorporated herein by reference. NOW, THEREFORE, BE IT ENACTED by the Board of Directors of the South Tahoe Public Utility District, County of E1 Dorado, State of California, as follows: · ~' 1. The bi~ of Alta-Pacific Constructors, Incorporated, P. O. Box 4998~ Walnut Creek, CA 94596, is the lowest, responsive, responsible bidder for doing the work and ir~provements and furnish' - 2 - 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 JOHN C. WEIDMAN A~'ORNEY AT LAW PLACERVILLE., CA 9566? 622-6260 ing the materials, supplies, and equipment for the Wastewater Recla- mation Plant Improvements, Treatment Plant Improvements - Contract No. 1, South Tahoe Public Utility District, Bid No. 84-85-16, Grant Project No. C-06-1414-110 in accordance with the plans and specifi- cations prepared by District Engineers, Culp/Wesner/Culp, and contract documents (Project No. 613.16-I) and bid documents dated 1985 and amended by Addendum No. 1, dated December 16, 1985, Addendum No. 2, dated December 27, 1985, and Addendum No. 3 dated December 30, 1985, and for the bid with the DISTRICT electing deduc- tive Alternative A, furnishing and installing a final effluent pump motor that meets mechanical and operational requirements set forth in the Project Manual. 2. The DISTRICT hereby elects Alternative A, furnishing and installing a final effluent pump motor that meets mechanical and operational requirements set forth in the Project Manual. 3. Said Board of Directors does hereby award said con- tract for doing the work and improvements and furnishing the material supplies, and equipment necessary for the Wastewater Reclamation Plant Improvements, Treatment Plant Improvements - contract No. 1, Bid No. 84-85-16, Grant Project No. C-06-1414-110, South Tahoe Public Utility District, to Alta-Pacific Constructors, Incorporated, at the price named in its bid with the DISTRICT electing Alternative A, furnishing and installing a final effluent pump motor that meets mechanical and operational requirements set forth in the Project Manuary, of Ten Million Five Thousand Dollars ($10,005,000.00), subject to State Water Resources Control Board and Environmental -3 - ! 2 3 4 5 6 7 8 9 ~0 1] ].2 13 14 15 16 ]7 ~8 ~9 2O 2] 22 23 24 25 26 JOHN C. W£1DMAN ATTORNEY AT i. AW Im_AC£RVILLF., CA 95667 622-5260 Protection Agency approval. 4. The Chairman of said Board of Directors is hereby authorized to make and enter into a written contract with said suc- cessful bidder, Alta-Pacific Constructors, Incorporated, and to receive and approve all bonds in connection therewith, and the Clerk is hereby directed to attest to said Chairman's ~signature and af£ix thereto the corporate seal of said District, all in accordance with the plans and specifications, and the special conditions and notice to bidders thereto approved and placed on file with the District, all subject to State Water Resources Control Board and Environmental iProtection Agency approvals. 5. Upon adoption, this Ordinance shall be posted in three (3) public places at least seven (7) daYs prior to the expiration of thirty (30) days from th date of its passage, and shall be pUb- lished in the Tahoe Daily Tribune, a newspaper of general circulation published in the District, one (1) time at least seven (7) days ~rior to thirty (30) days from the date of its adoption. . PASSED AND ADOPTED by the Board of Directors of the Soua~ ~ahoe Public Utility District at its duly held adjourned regular meeting on the 13th day of February, 1986, by the following vote: AYES: Directors Wynn, Jones, Olson, and Mason NOES: None ABSENT: Director Madden - 4 - 1 2 3 ATTEST: Pat k. Mamath, Clerk of the Board South Tahoe Public Utility District 10 11 12 13 14 15 . 17 18 19 20 21 22 23 24 25 2~ JOHN C. WEIDMAN PLACERVILLE.. CA 622-5260 ~,Bf~ard of Directors SOU.~H TA~f(,)E PUBLIC U~II_,..[Y DIo.~RICT -5 - 1 2 3 4 5 6 7 8 9 i0 !1 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 ORDINANCE NO. 382 AWARDING CONTRACT - CONTRACT NO. 1 CONSTRUCTION MANAGEMENT SERVICES WHEREAS, pursuant to order of the Board of Directors of the South Tahoe Public Utility District, County of E1 Dorad©, State of California, a request for Qualifications was made to fourteen (14) firms for Construction Management Services. Upon receipt, review and evaluation of all qualifications received, the Distri~ requested proposals from three (3) firms. WHEREAS, John Carollo Engineers was one of the three (3) firms who responded to the District's request by submitting a proposal for Construction Management Services for Treatment Plant Improvements; and WHEREAS, said Board of Directors at its regular meeting of October 22, 1982, reviewed said proposal and determined that John Carollo Engineers possesses the professional qualifications and expertise to provide such services, and awarded a Contract to provide Step 2 Construction Management Services; and WHEREAS, on February 13, 1986the Board of Directors of the South Tahoe Public Utility District awarded a Contract by Ordi- nance NO. 381 for the Construction of Wastewater Reclamation Plant Improvements, Treatment Plant Improvements-Contract NO. 1; and NOW, THEREFORE, BE IT ENACTED by the Board of Directors of the South Tahoe Public Utility District, County of E1 Dorado, State of California, as follows: 1. Said Board of Directors does hereby determine that the Master Grant Agreement and Task Order No. 1G of John Carollo ! Engineers, 450 North Wiget Lane, Walnut Creek, CA 94598 will 2 provide the most effective management services for the District's 311 Wastewater Reclamation Plant Improvements, Contract NO. 1 - 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 29. 23 24 9.5 26 27 28 Treatment Plant project in accordance with the plans and speci- fications prepared by District Engineers, Culp/Wesner/Culp, and bid documents Numbered 85-86-09 and 84-85-16 and amended by Addendum NO. 1, dated December 16, 1985, Addendum 2, dated December 27, 1985 and Addendum NO. 3, dated December 30, 1985. 2. Said Board of Directors does hereby award a Master Grant Agreement and Task Order NO. 1G, subject to State Water Resources Control Board and Environ~e,ltal Protection Agency approvals for providing the Construction Management Services as shown in Task Order NO. 1G and governed by the Master Grant Agreement for the Wastewater Reclamation Plant Improvements, Treatment Plant Improvements-Contract NO. 1, South Tahoe Public Utility District by John Carollo Engineers, at the price named in its proposal of Task Order NO. 1G in the amount of $1,097,220. 3. The Chairman of said Board of Directors is hereby authorized to make and enter into a written Agreement with John Carollo Engineers, and the Clerk is hereby directed to attest to said Chairman's signature and affix thereto the corporate seal of said District. 4. Upon adoption, this Ordinance shall be posted in three (3) public places at least seven (7) days prior to the expiration of thirty (30) days from the date of its passage, and shall be published in the Tahoe Daily Tribune, a newspaper of general circulation in the District, one (1) time at least seven (7) days prior to thirty (30) days from the date of its adoption. 1 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27: 28 PASSED AND ADOPTED by the Board of Directors of the South Tahoe Public Utility District at its duly held adjourned meet±ng the 13th day of February, 1986 by the following vote: AYES: NOES: ABSENT: Directors Mason,-Wynn, Olson, Jones None Director Madden J~ C H~~A RD SO~ TAHOE PUBLIC UTILITY DI PAT A. MAMATH, CLERK OF BOARD SOUTH TAHOE PUBLIC UTILITY DISTRICT 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 ORDINANCE NO. 383 AN ORDINANCE OF THE SOUTH TAHOE PUBLIC UTILITY DISTRICT AWARDING AGREEMENT TO FURNISH ENGINEERING SERVICES DURING CONSTRUCTION WASTEWATER TREATMENT PLANT IMPROVEMENTS CONTRACT NO. 1 TO CULP/WESNE R/CULP WHEREAS, pursuant to order of the Board of Directors of the South Tahoe Public Utility District, County of E1 Dorado, State of California, Culp/Wesner/Culp, prepared plans and specifications for the Wastewater Reclamation Plant Improvements, Contract No. 1 - Treatment Plant Improvements (Bid Documents Numbered 85-86-09 and 84-85-16) and amended by Addendum No. 1 dated December 16, 1985, Addendum No. 2 dated December 27, 1985, and Addendum No. 3 dated December 30, 1985. WHEREAS, on February 13, 1985 the Board of Directors of the South Tahoe Public Utility District awarded a Contract by Ordinance No. 381 for the Construction of. Wastewater Reclamation Plant Improvements, Treatment Plant Improvements - Contract No. 1; and WHEP£AS, the Board of Directors of the South Tahoe Public Utility District wishes the Design Engineer, Culp/ Wesner/Culp, to provide shop drawing review, plan and Specification interpretation, and prepare change orders that may be required during the construction of the Waste- water Reclamation Plant Improvements, Contract No. 1 - Treatment Plant Improvement. 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 ORDINANCE No. 383 Page 2 WHEREAS, the Board of Directors also wishes Culp/ Wesner/Culp to direct the start-up and operator training (including preparing and operations and maintenance manual) of The Wastewater Reclamation Plant Improvements, Contract No. 1 - Treatment Plant Improvements. WHEREAS, on November 17, 1985 the Board of Directors entered into a Master Grant Agreement with Culp/Wesner/Culp to provide engineering services to the District. NOW, THEREFORE, BE IT ENACTED by the Board of Directors of the South Tahoe Public Utility District, County of E1 Dorado, State of California, as follows: 1. Said Board of Directors does hereby determine that the Master Grant Agreement and Task Orders No. 4G, 5G, and 6G of Culp/Wesner/Culp, P. O. Box 518, Cameron Park, CA 95682 will provide the most effective engineering services during construction of the District's Wastewater Reclamation Plant Improvements, Contract No. 1 - Treatment Plant project in accordance with the plans and specifications prepared by Culp/Wesner/Culp, and bid documents numbered 85-86-09 and 84-85-16 and amended by Addendum No. 1, dated December 16, 1985, Addendum 2, dated December 27, 1985 and Addendum No. 3, dated December 30, 1985. 2. Said Board of Directors does hereby award Task Orders No. 4G, 5G, and 6G, subject to State Water Resources Control Board and Environmental Protection Agency approvals for providing the Engineering Services as shown in Task Orders No. 4G, 5G, and 6G and governed by the Master Grant Agree- ment for the Wastewater Reclamation Plant Improvements, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 ORDINANCE NO. 383 Page 3 Treatment Plant Improvements - Contract No. 1, South Tahoe Public Utility District to Culp/Wesner/Culp, at the price named in its proposals of Task Order No. 4G in the amount of $278,796, Task Order No. 5G in the amount of $33,096, and Task Order No. 6G in the amount of $41,594. 3. The Chairman of said Board of Directors is h~reby authorized to make and enter into a written Agreement with Culp/Wesner/Culp, and the Clerk is hereby directed to attest to said Chairman's signature and affix thereto the corporate seal of said DiStrict. 4. Upon adoption, this ordinance shall be posted in three (3) public places at least seven (7) days prior to . the expiration of thirty (30)days from the date of its passage, and shall be published in the Tahoe Daily Tribune, a newspaper of general circulation in the District, one (1) time at least seven (7) days prior to thirty (30) dayS from the date of its adoption. PASSED AND ADOPTED by the Board of Directors of the South Tahoe Public Utility District at its duly held ad- journed meeting on the 13 th day of February, 1986 by the following vote: Directors Wynn, Mason, Jones, Olson None Director AYES: NOES: ABSENT: aOH ' YNN, BOARD SOU~ TAHOE PUBLIC UTILITY DISTRICT PAT A. MAMATH, CLERIC O~ BOARD SOUTH TAHOE PUBLIC UTILITY DISTRICT