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HomeMy WebLinkAbout2018-05-23 - BOD Late Communication.pdf ORANGE COUNTY SANITATION DISTRICT Memorandum May 22, 2018 TO: Board of Directors Orange County Sanitation District FROM: Kelly A. Lore Clerk of the Board RE: LATE COMMUNICATION The Clerk of the Board received the attached correspondence after the publication of the May 23rd, 2018 agenda regarding Item No. 21. A letter received from Jeffrey S. Hurst, Esq. Monteleone & McCrory was emailed on May 21st, and the response letter from Kendra Carney Woodruff, Spradlin & Smart was emailed on May 22nd. A hard copy of each is also provided herein. 21. NEWHOPE-PLACENTIA TRUNK SEWER REPLACEMENT, CONTRACT NOS. 2-72B & 2-72C (Rob Thompson) Book Page 257 STEPHEN MONTELEONE (1886-1962) DARRELL P. McCRORY (1922-2013) JEFFREY S. HURST PARTNER hurst@mmlawyers com MONTELEONE & McCRORY, LLP LAWYERS A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 725 SOUTH FIGUEROA STREET, SUITE 3200 LOS ANGELES, CALIFORNIA 90017-5446 TELEPHONE (213) 612-9900 FACSIMILE (213) 612-9930 May 18, 2018 OUR FILE NUMBER Via e-mail, kcarnev@wss-law.com. and U.S. mail Kendra L. Carney, Esq. Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626-7670 8559-17362 Re: Contract No. 2-72B and 2-72C -Newhope-Placentia Trunk Sewer Replacement Dear Ms. Carney: I am in receipt of your letter of April 30, 2018, responding to my letter of April 6, 2018 relating to Orange County Sanitation District's ("OCSD") determination that Trautwein Construction, Inc. 's ("Trautwein") bid on the above-referenced project was "non-responsive". However, your response failed to address the central issue of my letter. Bid Documents BF-4 Performance History and Financial Resources, in Section A. 2, specifically allow the bidder to meet the performance requirements in subsections 2.b and c either through its own experience or by relying upon the experience of a listed Subcontractor. The second sentence ofBF-4, A. 2 states: "If the experience is that of a listed Subcontractor, the Bidder must document that Subcontractor has the minimum experience requirements described in this item by indicating the Subcontractor's name, its list of projects, project names and locations, descriptions of work, final contract values, contract durations and completion dates, contact names and telephone numbers in the table." In OCSD's letter of March 28, 2018, Gary V. Prater specifically confirmed that Trautwein's listed Subcontractor met the minimum qualification requirements. However, Mr. Prater went on to state that Trautwein was also required to independently meet the minimum qualification requirements. If this is the case, then there would never be a situation where the Bidder could qualify through its listed Subcontractor because it would still have to meet the minimum requirements on its own. [See attachment "A", second page, second and third paragraphs.] LAW OFFICES MONTELEONE & McCRORY, LLP Kendra L. Carney, Esq. May l8,20 18 Page 2 Therefore, the question remains: What does the language about qualifying through the experience of a listed Subcontractor mean? Trautwein had previously, by letter dated March 26, 2018, asked this same question before it was deemed non-responsive. [See Exhibit "B'', last sentence on first page.] OCSD has never provided a response to this question either before or after deeming Trautwein non-responsive. Trautwein respectfully requests that OCSD provide an explanation as to the meaning of the language allowing a Bidder to meet the experience requirements through a "li sted Subcontractor". Trautwein also requests that a copy of this letter be provided to each Board Member prior to the May 23, 201 8 Board meeti ng. JSH/sr Enclosures cc: Gary V. Prater, OCSD, with enclosures (via email, gprater@ocsd.com and U.S. mail) Very truly yours, MONTELEONE & McCRORY, LLP By ~{~ 0 FFREY S. HURST ·----------·------------·---·------·· -·--····~-----tt••. ·--···-· .... ..__ .--· .. ~ '. . . . . .. ... . ·.. ~-·· ·. ) ·:Serv{IJH,~:. ' i. I ! . :-,-··.) : _:_,-~u~~-Park· ,: t: : · ~'"~fs·AJa~ii~ .. • .• 'i; . N~!~rt'..a.~~~(: ..... prang~ ·:'.. , rrace~u,~:· . _·. sa~ta Aiia: Se.al ·eeacll · -..... :;~ • • 11 ••• • · .· .st~ntQ11 Vilt~.Park · ; · · '. · Costa ~i~sa · '. ·s!Jni!_~ry:pistri~·· .. . . . ;'· .... :-!·.-· -_ r .. ' ! I : ·.·;\-HjvJ;i~.~i~·: .... Sn.n~l<l'.J..Dist!ict · ·. il'.;in~ Ranch : ·. ·- . vy:i~~r.Q~s~~isf: : . .-. '··\~::>.~~~;·._:~ < ~~ ' • : · :. · Yorba Linda .. · 1·: • ·., Water oiStnct." · . .. ~ ..... .. ... ,. .... ·· :. .... : : . ; March 28, 2018 Via Email: trautweininc@qmail.com & Overnight Mail Mark Trautwein Trautwein Construction Inc. 19792 El Rivino Road Riverside, CA 92509 SUBJECT: Award Recommendation Notice RE: Contract No. 2-728 and 2-72C Newhope-Placentia Trunk Sewer Replacement {Anaheim Segment .. 8 .. & Fullerton Segment ··c") The Orange County Sanitation District (OCSD) completed its evaluation of the Bids submitted in response to the Invitation for Bids for the above-referenced Project. OCSD has determined that your Trautwein Construction, lnc.'s (Trautwein) Bid is Non-Responsive to the IFS as follows: Pursuant to the requirements of the IFS in PART 5 BID SUBMITTAL FORMS. BF-4 PERFORMANCE HISTORY AND FINANCIAL RESOURCES, A. LIST OF CURRENT AND COMPLETED PROJECTS AND EXPERIENCE REQUIREMENTS. Item 2.b. states "The Bidder shall list at least two (2) pipeline projects with a public owner completed within the last five (5) years in which it has either self-performed or directly supervised a subcontractor for the installation of minimum 72-inch diameter steel casing by Jack and Bore trenchless method. Bidder's listed projects shall be similar in nature. scope. complexity and cost to this Project." Your firm listed 3 projects for Item 2.b .. OCSD verified that the Newhope-Placent1a Trunk Sewer Replacement. Project 2-72A met the abovementioned criteria. But the other 2 projects listed. "West Side Relief Trunk Sewer" completed in May 2009. and ··orleander Transmission Pipeline" completed in November 2009 did not meet the above referenced criteria "within the last five (5) years" since these projects were completed more than 5 years ago . OCSD issued two (2) clarification letters requesting that your firm provide at least one (1) additional pipeline project with a public owner completed within the last five (5) years in which it has either self-performed or directly supervised a subcontractor for the installation of minimum 72-inch diameter steel casing by Jack and Bore trenchless method. In your firm's responses to Clarirication Request No. 2 issued March 21, 2018, Item 1 requested documentation of the listed Subcontractor's experience as required in BF-4 Item A.2. Trautwein submitted the requested information about its Subcontractor. Golden State Boring and Pipe Jacking. Inc. (Golden State). with its response. Rev1s1cn 06221 7 ·---·-.. ·-·----···· .. -······-···---·-·. ATTACHMENT A Mark Trautwein Page 2 March 28. 2018 Item 2 requested Trautv1ein to provide OCSO wit11 at least one ( 1) additional pipeline project that met the experience requirements of ~ .. 2.b. as stated above. Trautwein stated that it''. .. provided t11e BF-4 table sl1eets to address all items pertaining to experience supporting requests listed 1n section A 1 .. 2a . 2b and 2c of section BF-4' and also that" ... tle instructions to bidders for requirements 2b and 2c allow the minimum experience requirements to be that of the Contractor or Subcontractor." Trautwein did not submit evidence of at least one ( 1) additional pipeline project in conformance with the Clarification l'Jo. 2 request and in conformance with the requirements of BF-4 . Item A.2.b . OCSD then issued Clar ficat1on Request No 3 on March 23, 2018, explaining tha. the first part of the instructions for Ite m .A..2 does allow for the Bidder to have either self-performed or directly supervised a subcontractor for the '!Vork described in A.2.b. and if the experi ence 1s tha: of a listed SJbcontractor. that the Bidder must submit documentation ce1·,1onstrating that tne Subcontractor has the minimum experience requirements ,:...~ r2::: -: ·:.: ,;:.:ccJH:g ;J<n1gra::.n OCSD a::r<;--c;,lecg.2s tra\ y2_1 · '~---.:::.~-; s_:.) --,· t'~·:': ·:;c;.L1 ·ed ·J«per1e11ce 1nforra:•or 3'.)0J: 1:s ScJ~coFTra~tor However, the second pan of the requirement for 2.b clearly states, "The Bidder shall list at least two (2) pipeline projects with a public owner completed within the last five (5) years in which it has either self-performed or directly supervised a subcontractor for the installation of minimum 72-incl1 diameter steel casing by Jack and Bore trenchless method. Bidder's listed projects shall be similar in nature. scope, complexity and cost to this Project." Trautwein again clid not pro111de OCSD with a second project which met the requirements of the 8 1clcler. P..s def.ned 1n the IFS Documents. General Conditions GC-1 . Trautwein Construction. Inc 1s a Bidder w t10 submitted a Bid for Work contemplated. while Golden State is a Subcontractor" .. who contracts directly with a prime CONTRACTOR or another Subcontractor to perform a per.ion oi the Work A Subcontractor does no: have an y direct cont~act with OCSD related to the Work .. Trautwein's statement that ''. the "bidder". in experience requirements A2. A2a A2b & A2c takes the dual role of either being the contractor or subcontractor, but does not have to be both as urplied per Clarification Request No 2" 1s therefore in conflict with the General Conditie:ns ana 1s an incorrect interpretation of the defined terms listed in GC-1 P.ev1s1on 0522 t 7 ATTACHMENT A Mark Trautwein Page 3 March 28, 2018 In conclusion, Trautwein Conslruci1on. lnc.'s Btd failed to list at least two (2) pipeline projects with a public owner completed within the last five (5) years in which it has either self-performed or directly supervised a subcontractor for the installation of minimum 72-inch diameter steel casing by Jack and Bore trenchless method. and ihrough the subsequent clanficauon process. Traut1Nein did not provide evidence of a second project tn order to meet the requirements of BF-4, A.2.b. Therefore. your iirm's Bid did not meet the minimum experience requirement of the IFB as explained herein. Staff's recommendations lo OCSO's Board of Directors are as follows. 1. Reject the bid of Trautwein Construction Inc. as Non-Responsive 2. Award the Contract to OHL USA. Inc. dba Group OHL USA. Inc .. the lowest, responsive and responsible Bidder Staff's recommendations will be presented to the Board of Directors for award at its meeting scheduled for: Date: Time· Location. April 25. 2018 6:00 p.m Orange County Sanitat ion District Board Room. Administration Building 10844 Ellis Avenue Fountain Valley. CA 92708 The Final Agenda Report will be posted not less than 72 hours prior to the Board of Directors Meeting. Should you wish to determine if the item has been placed on the agenda. please contact the Clerk of the Board at (714) 593-7433. . -----.. :"-~a~ v:~p:t; . u;? ". -\ Principal Contracts Administrator GVP:LRL:yp cc: R. Thompson A. Nazaroff D. Berokoff K. Lore Revision 0622 1 7 ATTACHMENT A Mt11 ch 26, 2018 Or;rnge County Sanitation District i\ttn: Gary Prater 10844 Ellis Avenue Fountain I/alley, Ca. 92708 I RALJTIUE/r7 Construct i on GENERAL ENGINEERING CONTRACTOR LICENSE 773?G.!/\ RE: l'lewhope Placentia Trunk Sewer Replacement -P··oject 2-723 e. 2·72C Response to Clarification Request No. 3 Mr. Prater, Trautwein Construction has received Clarification Request No. 3 and is providing this response to further assist the OCSD team with the evaluatio n process. The following clarification will address the District's requests regarding section BF·4 of the bid package. In response to Clarification Request No 3, Traut·11eir disagrees with the assessment that all requested information was not provided, but rather contends that <ill inrormation has been pr~vided, anc has satis fi ed all oi tl1e e:<perience requ1i"e111 ents outlined 111 section l:l f-4. 111 f\F.11, sP.ction Al, the "bidrlc1 sh;ill lrnve at l~ast (LO) yeilfs of c:<pcrrcnce in sewer pipeline and sewer manl1ole construction by open trench or trench less methods ..... " Tl1is requirement must be met by the contrnctor, and only the contractor, without the use of any subcontrar.tor qualifications Trautwein Construction has met these expe rience requirements. In BF-4, section A2, the required listing of e:<perience is that of either the contractor or subcontractor, for the specific items of work listed in subsections A2a, A2b & A2c. The "bidder", in experience requirements A2, A2a, A2b & A2c takes the dual role of either being the contractor Q! subcontractor, but does not have to be both as implied per Clarification Request No. 2. OCSD, in requesting both contractor and subcontractor qualifications under A2 and A2b, is requiring Trautwein to provide documentation or a higher standard than required in BF-4. Trautwein Construction has met its experience reql1irement for trenchless e.<perience u1der section Al, and under the section A2 guidelines, has used the specific experience guidelines, notably section A2b, of the listed subcontractor, Golden State Boring, which is allowed OCSD is correct that Trautwein has only provided (1) project in the last (5) years in reference to section A2b, but this is irrelevant as section A2 clearly allows the subcontractors experience in supervision or self-performance of the specific work outlined in section A2b, as the acceptable criteria for experience. Once again, TrautwPin has already met its minimum experience requirements pertaining to trench less construction under section Al. Please note that there are no call outs anywhere in bi:J section BF-ti for the subcontractors qudlifications, accept if used as the qualifyinB agent of experience, as recognized in section A2, "The listing of experience shall clearly identify whether the experience is that of the bidder Q! listed subcontractor", and "1f the e.<perience is that of a listed Subcontractor, the Bidder must document that the Subcontractor has the minimum experience requirements described in this item". Trautwein has provided this information. Nowhere in section BF-4 is it implied thai "Bidders must submit the required experience documentation,: they plan to supervise a Subcontractor for this scope of work, and must meet the requirements themselves", as noted in Clarification Request No.3. Once again, section A2 differentiates that the qualifying documentation shall be that of the contractor Q! subcontractor, not both. Questi...:11, F ,. ~ svucun:rild i's qua::fica: ens are not acceptaule o· their O"\n nwri·. wily doe~ sertron Al. ;illow tne ~uhrnn1rnctors exp~ricncc rcq .. 1rcmcnts? As noted above, the quali fying merits 12223 HIGHLAND AVE, STE. 106. 11546 o RANCHO CUCAMONGA, G\ 91739 «> PH (951)369-8901 «> FX (CJS 1)369·89:11 o tr au tweininc@gm,1ii.com T-;·" ; .... 1/.· () ... ATTACHMENT B I RRLJTlllE1n Construction GENERAL ENGINEERING CONTRACTOR LICENSE n3764A are of either the contractor or subcontractor, and of self-performance 2! supervision, not both. Nowhere within section BF-4 does it require both the contractor and subcontractor to qualify independently of each other. Trautwein Construction and the OCSD evaluation team obviously have a differing opinion on section BF·4 language criteria. We adamantly contend that we have provided the evaluation team with all information required in section BF·4, and stand firm that we have absolutely complied and met all of the qualifying requirements of section BF-4. Trautwein has asked our legal counsel to review all materials and clarifications related to section BF-4, and they have confirmed that in accordance to the language in section BF-4, Trautwein has provided and met all the proper documentation and experience requirements to satisfy the Districts requests. Trautwein hopes that the OCSD evaluation team understands our position and agrees with our assessment so we can move forward towards award. If OCSD still has questions, we would like to meet with you to discuss this issue, hopefully avoiding any further actions. Thank You, Mike Lowen Trautwein Construction 12223 HIGHLAND AVE, STE.106, 11546 e RANCHO CUCAMONGA, CA 91739 o PH (951)369·8901 • FX (951)369-8921 o trautweininc@gmail.com ,-,,du llr 0# ATTACHMENT 8 May 22, 2018 KENDRA L. CARNEY DIRECT DIAL: (714) 415-107J DIRECT !'AX. (714) 415-1 173 E-MAIL: KCARNEY@WSS-1.AW COM Jeffrey S. Hurst, Esq. Monteleone & McCrory, LLP Suite 3200 725 South Figueroa Street Los Angeles, CA 90017-5446 Re: Contract No. 2-728 and 2-72C - Newhope-Placentia Trunk Sewer Replacement Dear Mr. Hurst: I received your letter dated May 18, 2018, on behalf of Trautwein Construction, Inc. ("Trautwein"), in which you continue to question the Orange County Sanitation District's ("OCSD") determination that the bid submitted by Trautwein for OCSD Contract No. 2-72B and 2-72C was non-responsive. Specifically, you ask whether the language of the Invitation for Bid ("'IFB'') allows the Bidder to meet the qualifications established in item BF A.2.b. based solel y on the experience of a listed Subcontractor. It does not. J\s OCSD and our office have previously info rmed you, the IFB required Bidders to submit information from previous projects to demonstrate the Bidders' experience with substantially similar projects. Specifically, Part 5, Bid Submittal Forms, Section BF-4 required the Bidder to submit a list of current and completed projects and experience. BF-4 A.2. informed the Bidder to: 1318631.I " ... provide its list of projects to demonstrate that it has self-performed the Work described in criteria "a." below, and either self-performed or directly supervised a Subcontractor(s) for the Work described in criteria "b." and "c." below as minimum construction experience requirements fo r this Project. The listing of ex.perience shall clearly identify whether the experience is that of the Bidder or listed Subcontractor(s). If the experience is that of a listed Subcontractor, the Bidder must document that the Subcontractor has the minimum experience requirements described in this item by indicating the Subcontractor's name, its list of projects, project names and locations, descriptions of work, final contract values, contract durations and completion dates, contact names and telephone numbers in the table." 555 ANTON HOULl:::VARD.SUITI~ 1200 • COST/\MESA,CA92626-7670 • (714)558-7000 • FJ\X(714)835-7787 WWW. WSS-Li\ W.COM Jeffrey S. Hurst, Esq. May 22, 2018 Page 2 Item BF-4 A.2.b. required the Bidder to list "at least two (2) pipeline projects with a public owner completed within the last five (5) years in which it has either self-performed or directly supervised a Subcontractor for the installation of minimum 72-inch diameter steel casing by Jack and Bore trenchless method." The listed projects were to be similar in nature, scope, complexity and cost to the project described in the IFB. Trautwein listed three (3) projects, only one (1) of which met the qualifications. The other two (2) projects, "West Side Relief Trunk Sewer" completed in May 2009, and "Orleander Transmission Pipeline" completed in November 2009 did not meet the above referenced criterion since these projects were completed more than five (5) years ago. Therefore, Trautwein did not respond to section BF-4 A.2.b. as required. If relying upon the experience of a Subcontractor, Item BF-4 A.2.b. clearly required the Bidder to further demonstrate its experience supervising such work. Although Trautwein also submitted qualifications for its listed Subcontractor, the Subcontractor qualifications could not independently meet this requirement for demonstrated direct supervision by the Bidder. Despite numerous attempts by OCSD to clarify this requirement during the bid process, Trautwein did not submit the information necessary to meet the required qualifications and accordingly, its bid was determined non-responsive. The District maintains that the bid submitted by Trautwein was nonresponsive and the allegations in Trautwein's April 61h and May 18th letters are unfounded. OCSD will proceed with its Award Recommendation as published. 1318631.1 Best regards, WOODRUFF, SPRADLIN & SMART A Professional Corporation