Resolution Number 17-10-17-03RESOLUTION NO. 17-10-17-03
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, REJECTING BID PROTESTS AND
AWARDING A CONTRACT TO RICH CONSTRUCTION, INC. FOR THE
RANCHO MISSION VIEJO RIDING PARK WATER AND SANITARY SEWER
PIPELINES PROJECT (CIP 17201)
Whereas, the City of San Juan Capistrano opened bids for the Rancho Mission
Viejo Riding Park Water & Sanitary Sewer Pipelines Project— CIP 17201 (the "Project") on
October 3, 2017; and
Whereas, Rich Construction, Inc. ("RCI") submitted a bid for the Project that has
been determined to be the low bid; and
Whereas, the City received a bid protest from JPI Development Group, Inc.("JPI")
dated October 6, 2017, alleging that the bids from RCI and the second low bidder failed to
list subcontractors for soil compaction testing services required under the Contract
Documents for the Project; and
Whereas, the City has broad discretion to determine responsiveness and accept a
responsive bid even if there are minor irregularities or mistakes, as long as such mistakes
are immaterial. (See Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175; Ghilloti
Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897); and
Whereas, the subcontractor listing requirement is a statutory requirement under the
Subletting and Subcontracting Fair Practices Act, codified at Public Contract Code section
4100 et seq. ("Act"); and
Whereas, the Act only requires prime contractors to list those subcontractors
performing more than 0.5% of the total bid amount on the project; and
Whereas, RCI indicated in its response to the bid protest that it assumes the cost of
the soil compaction testing will not exceed 0.5% of the total amount of RCI's bid and,
therefore, RCI was not required to list a subcontractor for that work pursuant to the Act;
and
Whereas, the soil compaction testing would be performed by a licensed
geotechnical engineer, and the Act does not generally apply to licensed architects or
registered civil or professional engineers acting within their professional capacity (See Pub.
Contract Code, § 4113 [defining term "subcontractor" under the Act by reference to the
definition of "contractor" under Chapter 9 of Division 3 of the Business & Professions
Code]; Bus. & Prof. Code, § 7026 [defining the term "contractor" to mean one who
constructs, alters, repairs, adds to, subtracts from, improves, moves, wrecks, or
demolishes any building, highway, road, etc.]; Bus. & Prof. Code, § 7051 [expressly
10/17/2017
excludes architects and engineers from being covered by Chapter 9 of Division 3 of the
Business & Professions Code]); and (�
Whereas, the California Attorney General, relying on Public Contract Code section
4110, has additionally opined that a public entity may accept a bid where the contractor
failed to comply fully with the Act. The Attorney General noted that the public entity may
require the contractor who failed to properly list subcontractors to pay the statutorily
prescribed penalty up to ten (10) percent of the amount of the subcontract involved or to
self -perform that portion of the subcontracted work in accordance with Public Contract
Code sections 4110 and 4106, respectively; and
Whereas, the City has no reason to believe that RCI has violated the Act and even if
such a violation were proven, the City is not obligated to reject RCI's bid in accordance with
the terms of the Act.
Whereas, all other legal prerequisites to the adoption of this Resolution have
occurred.
NOW, THEREFORE, BE IT RESOLVED, as follows:
SECTION 1. The City Council hereby finds and declares that any bid
irregularities in RCI's bid are immaterial and hereby waived.
SECTION 2. The City Council hereby finds and declares that the bid protest
submitted by JPI is meritless and rejected.
SECTION 3. The City Council hereby finds and declares that RCI is the
lowest responsible bidder submitting a responsive bid in the amount of
$588,428.
SECTION 4. The City Council hereby awards the contract for the Project in
the amount of $588,428 to RCI.
SECTION 5. The City Council hereby authorizes the City Manager to
execute the contract with RCI and any other documents that may be required
to execute the contact for the Project.
SECTION 6. The City Council hereby establishes a 10% construction
contingency for a total not to exceed Project construction budget of
$647,270, which the City Manager shall be authorized to approve the use of
for the Project.
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PASSED, APPROVED AND ADOPTED this 171" day of October 2017.
V)ERR FERGU O , MA OR
ATTEST:
MAR�A
IA MORPO, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano, do hereby
certify that the foregoing Resolution No. 17-10-17-03 was duly adopted by the
CU Council of the City of San Juan Capistrano at the Regular meeting thereof, held the
17 day of October 2017, by the following vote:
AYES: COUNCIL MEMBERS: Reeve, Maryott and Mayor Pro Tem Farias
NOES: COUNCIL MEMBERS: Patterson and Mayor Ferguson
ABSENT: COUNCIL MEMBERS: None
RIA MORRIS, 'CITY CLERK
10/17/2017