Loading...
HomeMy WebLinkAboutItem No. 9 BOD - Late Communication 05-28-2025OD May 28, 2025 TO: Board of Directors Orange County Sanitation District FROM: Kelly Lore Clerk of the Board RE: LATE COMMUNICATION The Clerk of the Board received the attached correspondence (Attachment No. 1) on May 27, 2025, from Max H. Kohn, Weinberg Roger & Rosenfeld regarding Item No. 9 after the agenda had published. Purchasing & Contracts Manager, Kevin Work provided a response to the correspondence received from Max H. Kohn, Weinberg Roger & Rosenfeld (Attachment No. 2) in regard to Item No. 9, received by the Clerk of the Board today, May 28, 2025. CONSENT CALENDAR: 4.SAFETY SHOWER AND EYEWASH STATIONS INSPECTIONS AND 2025-4292 TESTING, SPECIFICATION NO. S-2025-669BD RECOMMENDATION: Recommend to the Board of Directors to: GENERAL MANAGER'S RECOMMENDATION RECOMMENDATION: A.Receive and file Zeco, Inc. protest statement dated April 2, 2025; B.Receive and file Orange County Sanitation District’s Protest Response letter dated April 16,2025; C.Approve a General Services Contract to Haws Corporation for Safety Shower andEyewash Stations Inspections and Testing, Specification No. S-2025-669BD, for a total amount not to exceed $224,594; and D.Approve a contingency of $33,689 (15%). Originator: Riaz Moinuddin Attachments: Agenda Report Letter of Protest - Zeco, Inc. OC San Protest Response Letter - Zeco, Inc. General Services Contract, S-2025-669BD Correspondence received at Operations Committee 5/7/2025 Correspondence received by COB 5/13/2025 ♦ ► Weinberg Roger & Rosenfeld 1375 55th Street Emeryville, California 94608 TELEPHONE: (510)337-100 1 FACSIMILE: (510) 337-1023 Max H. Kohn mkohn@un ioncounsel.net A Professooal Corporation STEWART WEINBERG DAVIDA ROSENFELD WWAMA. SOKOL LINDA BALOMN JONES ALAN C CRO'M.EY KRISTINA L HILLMAN+ BRUCE A HARLAND CAREN P SENCER ANNE I YEN MANUEL A BOIGUES KERIANNE R STEELE+ GARY P PROVENCt-ER EZEKIEL D CARDER► LISL R SOTO .OLENE KRAMER CA1TUN E GRAY TIFFANY L CRAIN+ OAVIOWM FWMOTO ANDREA C MATSUOKA ALEXANDER S NAZAROV SEANW, McOONALD◄ KATHARINE R. MCDONAGH MAXI MILLIAN 0. CASILLAS• WIWAM T HANLEY BISMA StWiBAZ MATTHEW J ERLE MICHI\ELA F POSNER ALEXANDER M MILNE '-"1NNIE VIEN All YN GONZALEZ SARA J ZOLLNER NOREY L NAVARRO♦ R. MAXWELL SINCLAIR MtRANOA MAMMEN AROAlAN 'ARDV-RAGHIAN SHANE M REED OOMlt,IQUE ARMSTRONG MATTHEWC. FERJ,W.IJES JOt~ THAN S. EZELL MAX KOHN COREY A. SHERMAN OF COUNSEL ROBERTA O PERl<JNS ROBERT E. SZVKOYMV ANOREAK.OON ANTONIO RUIZ MICHAELJ. HA.YEST ASH.EV K. IKEQA. JANN.AH V MANANSALA LABOR EOUCATOR NINA FE NOEL (Rn.red Auorney) Adm.Utd in C~Off'd unleu ,.,.._ ..... AdlMledll'I Haw• ~ adToctttd n Nevada Also adm.1ted in New York-,<! Alaska A<mitted n Nevada tnd Wathlnglon AlsoadmittedW\ldAho Ano admttad W1 New York AdtMlod In Ntw York May 23, 2025 Via U.S. Mail & Email Jeremy Arbiso Senior Buyer Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jarbiso@ocsan.gov Re: Orange County Sanitation District's Safety Shower & Eyewash Stations Inspections & Testing Project Requires A Contractor License Dear Mr. Arbiso: Our law office represents the Construction Industry Force Account Council (''CIF AC"). CIF AC is a non-profit coalition of construction industry associations, contractors and labor unions that monitors state and local agencies' compliance with competitive bidding laws. These laws, enshrined mostly in the California Public Contract Code, ensure that agencies use taxpayer funds responsibly and "obtain the best result for the public," while allowing contractors on public construction projects to compete on an open and level playing field.1 CIFAC seeks to promote fair and open bidding on all public projects throughout the state and does not advocate on behalf of any specific contractors. This letter concerns the Orange County Sanitation District's ("District") Safety Shower and Eyewash Stations Inspections and Testing project, Specification No. S-2025-669BD ("Project"). CIFAC understands that Haws Corporation was or will soon be awarded the contract for the Project, and that Project requires a C36-Plumbing License. This correspondence apprises the District that Haws Corporation, appears to be an unlicensed contractor and therefore cannot lawfully perform the Project work. C IFAC requests that the District comply with California licensing and public contracting laws by rejecting Haws Corporation's bid and awarding the Project to an e ligible bidder. I. The Project's Scope of Work Describes Repair Work & Requires a Contractor's C-36 License According to the Project's Scope of Work, included as Exhibit A of the District's Notice Inviting Bids, the Project requires the awarded contractor ("Contractor") to perform weekly and annual inspections and testing to ensure that the District's safety showers and eye wash stati ons within Reclamation Plant Numbers I and 2 comply with American National Standards Institute I . M & B Constructwn v. Yuba County Water Agency ( 1999) 68 Cal.App.4th 1353 , 1360; see also Domar Electric, Inc. v. City of Los Angeles ( 1994) 9 Cal.4th 16 1, 170-17 1. LOS ANGELES OFFICE 800 WIishire Boulevard, Su,le 1020 Los Angeles. CA 90017-2623 TEL 213.380.2344 FAX 213.443.5098 SACRAMENTO OFFICE 431 I StreeL Suite 201 Sacramento, CA 95814-2341 TEL 916.443.6600 FAX 916.442.0244 LAS VEGAS OFFICE 3199 E. Warm Springs Road, Suite 400 Las Vegas, NV 89120-3150 TEL 702.508.9282 FAX 510.337.1023 Attachment No. 1 May 23, 2025 Page2 ("ANSI") requirements. Section 3.3 of the Scope of Work, titled "Corrective Maintenance" outlines the Contractor's obligations regarding repair work. If the Contractor discovers during inspections that a safety shower or eye wash station requires repair in order to meet ANSI standards, Section 3.3 obligates them to schedule repair service, specifically stating "the Contractor shall schedule a follow up service for any necessary corrective maintenance and parts replacement." (Emphasis added). Section 3.3. l establishes the procedure the Contractor must follow for approval for the repairs. Section 3.3.2 of the Project's Scope of Work states "[t]he Contractor should abide by the 2024 Uniform Plumbing Code Guidelines 609.10 when cutting, replacing, or tying into any potable water piping. New or repaired potable water systems shall be disinfected prior to use." CIF AC understands that Zeco, Inc., a bidder on the Project, submitted a bid protest to the District in which it notified the District that Haws Corporation could not perform the work given it is an unlicensed contractor. In its April 16, 2025, response to Zeco, Inc. 's bid protest, the District claimed that "[t]his is a service contract, not a public works contract, so a contractor's license would not be required. The proposed work is to conduct safety shower and eyewash inspections as a regulatory compliance obligation, not to construct or alter those facilities." Respectfully, the District's position runs contrary to facts and law. First, the scope of work in Section 3.3.2 clearly describes repair work and section 3.3 outlines procedure obligating the awarded Contractor to schedule follow up repair work. This repair work meets the definition of public work under Public Contract Code section 1101 which defines a public works contract as "an agreement for the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind." While it is hypothetically possible that the Contractor will not determine that any repair work is necessary on any of the safety shower and eye wash stations during Contractor's numerous inspections over the lifetime of the contract and therefore never have to act upon their obligation to conduct repair service under Section 3.3, the Scope of Work anticipates repair work that requires a C36-Plumbing license, and provides a detailed procedure requiring the Contractor to schedule follow up service to make such repairs. Section 3.3.2 even specifies the Plumbing Code Guideline that the repairs should abide by. Therefore, the Contractor awarded the Project will likely have to make plumbing repairs for the District. Second, the Contractors State License Board ("CSLB") has confirmed that a contractor's license, specifically one with a C36 Plumbing classification, is required under the Project contract. On May 6, 2025, a CIF AC Regional Compliance Manager contacted the Contractors State License Board regarding a review of this scope of work. On May 7, 2025, Hal Clay, a CSLB Special Investigator, Licensing Classification Deputy, stated that any potential shower/eye wash station repairs fall under the C36-Plumbing license classification and any repairs require a license. (See attached correspondence). Thus, the Project awardee must have the appropriate contractor's license, in this case a C36-Plumbing license. May 23, 2025 Page 3 II. Haws Corporation, as an Apparently Unlicensed Contractor, Cannot Lawfully Perform the Project Contract CIF AC conducted a thorough search regarding whether Haws Corporation is a licensed contractor in the State of California. Haws Corporation does not appear when conducting a contractor name search on the CSLB website. Similarly, no license appears when searching by personnel name using the names of Haws Corporation's officer listed on its bid, Chuck Gruber. While it appears that another entity related to Haws Corporation, Spot Devices, Inc., was at one point licensed, that license (number 9 11 352) was cancelled in March 2013. T hus, it appears that Haws Corporation is not a licensed contractor in California. Haws Corporation cannot lawfully perform the Project under two different state laws. First, Business and Professions Code section 7028.1 5 clearly states that "a bid submitted to a public agency by a contractor who is not licensed in accordance with this chapter shall be considered nonresponsive and shall be rejected by the public agency." As Haws Corporation does not hold the required contractor's license, it cannot lawfully be awarded or perform the Project. Second, Public Contract Code section 20783 obligates County Sanitation Districts to award public works contracts for work greater than $35,000 to only responsible bidders.2 A responsible bidder means "a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract."3 Here, Haws Corporation is not a responsible bidder because it lacks the attri butes of fitness and capacity to complete the Project given it does not possess the required license to engage in the plumbing repair work included in the Scope of Work. Moreover, because Haws Corporation lacks the license that CSLB states is necessary to complete the repair work described in the contract, it also li ke ly lacks the attribute of experience because it cannot have performed other public works projects doing similar repairs. As such, Haws Corporation cannot satisfactorily perform the public works contract and is not a responsible bidder. Thus, both the Business and Professions Code and the Public Contract Code apply in this case to make it unlawful both for the District to award the Project contract to Haws Corporation and for Haws Corporation to perform the Project work. III. Conclusion CIFAC respectfully requests that District respond to this letter by June 4, 2025 indicating that it will comply with state law by (1) refrainin g from awarding the Project to Haws Corporation or rescinding any Project award to Haws Corporation and (2) awarding the Project to an eligible bidder who submitted a responsive bid. Pl ease provide your response to the undersigned at mkohn@unioncounsel.net and amatsuoka@unioncounsel.net, and to ClF A C's Executive Director, Michell e Pickens, at mpickens@cifac.org. 2 Pub. Contract Code, § 20783. 3 Pub. Contract Code, § I I 03. Thank you in advance for your consideration of this important matter. MHK:sma opeiu 29 afl-cio( 1) Enclosure Sincerely, 1~4 .. - Max H. Kohn Andrea Matsuoka cc: M ichelle Pickens, Executive Director, CIF AC, mpickens@cifac.org (via email) Andrea Matsuoka, Shareholder, Weinberg Roger & Rosenfeld, amatsuoka@ unioncounsel.net (via email) 119274\ 1570834 May 23, 2025 Page 4 From: To: Subject: Date: Attachments: Clay Hal@CSLB on behalf of CSLB Classifications Deputy@CSLB Patricia Rascon EXTERNALRE: Plumbing Contractor license classification question Wednesday, May 7, 2025 7:53:19 AM imaqeoo1 png jmageoo2 png image003 ong image004 png imaaeoos.ona image006.ong S-2025-6698D 250506 130549 pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Good morning, Based on the information provided, the proper license classification for any potential shower/eye wash station repairs is C36-Plumbing. The testing and inspections do not require a license, but the repairs would. Thank you. Hal Clay Special Investigator Licensing Classification Deputy Contractors St ate License Board 916 255-4149 CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. From: Patricia Rascon <prascon@cifac.org> Sent: Tuesday, May 6, 2025 2:17 PM To: CSLB Class ifications Deputy@CSLB <Classifications@cs lb.ca.gov> Cc: Gus Garcia <Gusg@socalccc.org> Subject: Plumbing Contractor license class ification question You don't oflen get email from prasconro cifoc or:.:. learn whv this i, imponanI CAUTION: This email originated from outside of CSLB. Do not click links or open attachments unless you recognize the sender and know the content is safe. Good afternoon, I am reviewing the attached Scope of Work for Safety Shower and Eyewash Stations Inspections and Testing. Would a C-36 Plumbing license be required for this work? Page 18, 3.3.2 states the following: The Contractor should abide by the 2024 Uniform Plumbing Code Guidelines 609.10 when cutting, replacing, or tying into any potable water piping. New or repaired potable water systems shall be disinfected prior to use. Thank you in advance for your assistance. Palruc.u:t (Patli,) R.AAWlt, Southern Regional Compliance Manager ~ 21 3-418-4264 IEl 707-439-3810 prascon@cifac org www cjfac org P.O. Box 2102 Beaumont, CA 92223 Attachment No. 2 Clerk of the Board - Received May 28, 2025 From: Work, Kevin <KWork@ocsan.gov> Sent: Wednesday, May 28, 2025 12:00 PM To: Lore, Kelly <klore@ocsan.gov> Subject: Fwd: EXTERNAL: RE: Correspondence received re: Orange County Sanitation District's Safety Shower & Eyewash Stations Inspections. Hi Kelly, In response to the letter dated May 23, 2025, from Weinberg Roger & Rosenfeld regarding Board Item No. 9, Specification No. S-2025-669BD for Safety Shower and Eyewash Stations Inspections and Testing, OC San outlines the following points: 1.Under the Notice Inviting Bid and OC San protest policy, only Zeco, Inc. can protest the awardof contract as the interested bidder. Neither Weinberg Roger & Rosenfeld nor the Construction Industry Force Account Council (CIFAC) were bidders on the project and have the right toprotest or appeal. Zeco, Inc., the 2nd lowest bidder on the project, submitted a protest on 4/2,which was responded to on 4/16 and found to be without any merit by OC San. No appeal wasreceived, and the appeal period has closed, and so no new protests can be filed. 2.OC San properly investigated the protest and responded. This is a service contract that doesnot require a construction contractor’s license, not a public works contract, as nothing is beingaltered or constructed. The service provider is to provide inspections and testing of the safetyshowers and eyewash stations, and there is only minor, routine and preventative maintenancecontemplated within the scope of work, and thus no contractor license is required. 3.Regarding the use of a C-36 Plumbing license, OC San has confirmed with Maintenance thatthere will be no altering, cutting or replacing of any piping or connections from the water sourceto the eyewash station. All preventative maintenance, if needed, is limited strictly to the station itself. As such, a C-36 license is not required. 4.No contract license requirement was included within the solicitation and resulting contract, andthus Haws is allowed to perform the work. 5.The Zeco, Inc. protest focuses on Haws Corp.’s low price for the work and protests that it isnot feasible and too low. This is not a protestable item. General Counsel has reviewed the originally filed protest as well as the contents of the law firm’s letter. Counsel does not have any issues with the Board adopting staff’s recommendation and awarding a contract to Haws. Kevin Work, CPPB Purchasing & Contracts Manager Office: 714-593-7512 | www.ocsan.gov