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070224-6.8 MVP CONSTRUCTION LETTER AND ATTACHMENTS 070124 (2)
Marie Sunseri Subject: FW: Diablo Vista Playground Renovation & Multi -Sport Skate Park Attachments: Followup not included in Agenda.pdf; MVP Bid Letter Diablo Vista Park 06.30.2024.pdf; Example WA Vallejo F3 Marina QA.pdf; Example Certification for Warranty Mfr.pdf; 6.8 Consent Item.pdf From: Mike Vila <mike@mvpcllc.com> Sent: Monday, July 1, 2024 2:41 PM To: Rob Ewing <REwing@danville.ca.gov>; Bob Russell <BRussell@danville.ca.gov>; Karen Stepper <KStepper@danville.ca.gov>; David Fong <dfong@danville.ca.gov>; Newell Arnerich <NArnerich@danville.ca.gov>; Renee Morgan <RMorgan@danville.ca.gov>; Robert Storer <RStorer@danville.ca.gov> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov>; Tanya Vila <Tanya@mvpcllc.com> Subject: FW: Diablo Vista Playground Renovation & Multi -Sport Skate Park ***CAUTION*** THIS EMAIL WAS NOT SENT FROM DANVILLE STAFF This email originated from outside of the Town of Danville and was not sent from a Town Staff member! Do not click on links or open attachments unless you recognize the sender and know the content is safe. Rob, To follow up. This email from Sunday and attachments was also requested to be added and is not added. Please add this to the agenda as originally requested earlier today. As of now, only today's emails and attachments were included, please add the balance of my request Today. For your convenience, I have forwarded the email from below and attachments from that email to make it simple. Thank you Mike Vila Owner/President M V P Construction LLC l 925.586.1478 "Woman Business Enterprise" License #1047890 www.rr1vpcllc.comr 1 428 N. Buchanan Circle #15 Pacheco, CA 94553 v CONSTRUCTION ....LC From: Mike Vila Sent: Sunday, June 30, 2024 9:21 AM To: 'Rob Ewing' <REwing@danville.ca.gov>; Bob Russell<BRussell@danville.ca.gov>; 'kstepper@danville.ca.gov' <kstepper@danville.ca.gov>; 'dfong@danville.ca.gov' <dfong@danville.ca.gov>; 'narnerich@danville.ca.gov' <narnerich@danville.ca.gov>; 'rmorgan@danville.ca.gov' <rmorgan@danville.ca.gov>; 'rstorer@danville.ca.gov' <rstorer@danville.ca.gov> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov>; Tanya Vila <Tanya@mvpcllc.com> Subject: RE: Diablo Vista Playground Renovation & Multi -Sport Skate Park Good Morning, I saw that this was posted already for the meeting on 07.02.2024. Rob, I was hoping we would have had further conversation before this decision was made. There is an issue still remaining that was not addressed. I would like to have this Consent Item 6.8 pulled from the agenda, Resolution No. 50-2024 or reverse your recommendation to MVP. Please see attached letter and exhibits. Thank you, Mike Vila Owner/President M V P Construction LLC C 925.586.1478 "Woman Business Enterprise" License #1047890 www.rr1vpcllc.comr 428 N. Buchanan Circle #15 Pacheco, CA 94553 2 CONSTRUCTION ,.. L.t .. From: Rob Ewing <REwing@danville.ca.gov> Sent: Thursday, June 13, 2024 8:51 AM To: Mike Vila <mike@mvpcllc.com>; Bob Russell <BRussell@danville.ca.gov> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov>; Tanya Vila <Tanya@mvpcllc.com> Subject: RE: Diablo Vista Playground Renovation & Multi -Sport Skate Park Mr. Vila, We also need you to address one other item. In your June 10 protest letter, you allege that Gradetech engaged in bid shopping after bids were submitted and in a previous email to Bob Russell you included what appear to be portions of a text exchange between Aaron Spohn and Greg Fulton, who we presume is an employee of Gradetech. What you have included doesn't show dates, so we can't tell if it was pre- or post -bid submittal and it doesn't include anything showing the context. If you wish this to be evaluated by the Town on what is a serious accusation, we need you to provide that information. Thanks, Rob Ewing City Attorney From: Mike Vila <mike@mvpcllc.com> Sent: Thursday, June 13, 2024 8:45 AM To: Bob Russell <BRussell@danville.ca.gov> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Rob Ewing <REwing@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov>; Tanya Vila <Tanya@mvpcllc.com> Subject: Re: Diablo Vista Playground Renovation & Multi -Sport Skate Park ***CAUTION*** THIS EMAIL WAS NOT SENT FROM DANVILLE STAFF This email originated from outside of the Town of Danville and was not sent from a Town Staff member! Do not click on links or open attachments unless you recognize the sender and know the content is safe. Thanks Bob. We will respond formally. Can also get a copy of their bid form as well. I don't think I was provided a copy of that. I did notice they did not address any of the items we pointed out. The items they point to are minor irregularities don't affect the overall outcome or give MVP an advantage. Thanks, 3 Mike Vila Owner/President IIS V IIF` Construction III II C 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcRc.co r 428 N. Buchanan Circle #15 Pacheco, CA 94553 From: Bob Russell <BRussell@danville.ca.gov> Sent: Thursday, June 13, 2024 8:01:27 AM To: Mike Vila <mike@mvpcllc.com> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Rob Ewing <REwing@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov> Subject: RE: Diablo Vista Playground Renovation & Multi -Sport Skate Park Mike, See the attached PDF information received. Bob From: Mike Vila <mike@mvpcllc.com> Sent: Thursday, June 13, 2024 7:32 AM To: Bob Russell <BRussell@danville.ca.gov> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Rob Ewing <REwing@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov> Subject: Re: Diablo Vista Playground Renovation & Multi -Sport Skate Park ***CAUTION*** THIS EMAIL WAS NOT SENT FROM DANVILLE STAFF This email originated from outside of the Town of Danville and was not sent from a Town Staff member! Do not click on links or open attachments unless you recognize the sender and know the content is safe. Thank you, Bob. May I please get a copy of GradeTechs bid protest? Thanks, Mike Vila 4 Owner/President IIS V IIF` Construction Ill 11 C 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcRc.com 428 N. Buchanan Circle #15 Pacheco, CA 94553 Error! Filename not specified. From: Bob Russell <BRussell@danville.ca.gov> Sent: Thursday, June 13, 2024 7:28:29 AM To: Mike Vila <mike@mvpcllc.com> Cc: Diane Friedmann <DFriedmann@danville.ca.gov>; Steven Jones <SJones@danville.ca.gov>; Rob Ewing <REwing@danville.ca.gov>; Guillermo Santolaya <GSantolaya@danville.ca.gov> Subject: Diablo Vista Playground Renovation & Multi -Sport Skate Park Mike, Given the fact that both bidders have filed protests arguing the other bid is non-responsive, the Town is going to take extra two weeks to do a more in-depth review of their allegations before the Town makes a final recommendation to the Council so that all are comfortable with the recommendation. The Town is going to continue this item on Diablo Vista Playground Renovation & Multi -Sport Skate Park until the Jully 2 meeting and will not appear on the June 18th agenda. Sincerely, Bob Bob Russell Landscape Architect, PLA Clean Water Program Coordinator Town of Danville 50o La Gonda Way Danville, CA 94526 (925) 314-3315 f (925) 838-0360 Brussell@danville.ca.gov www.danville.ca.gov 500 La Gonda Way. Visit our websrte for more information. Stay Connected with us! dJll JJ%% nixi 5 ADMINISTRATIVE STAFF REPORT 6.8 TO: Mayor and Town Council July 2, 2024 SUBJECT: Resolution No. 50-2024, awarding a construction contract for Diablo Vista Park Play Area Renovation and Multi -Sport Skate Park, CIPs B-560 & B- 616 BACKGROUND The Town's Capital Improvement Program includes Diablo Vista Park Capital Maintenance and Multi -Sport Skate Park, CIPs B-560 & B-616. The project park improvements include an 11,000 -square -foot multi -use skate park incorporating features for a variety of ages and uses, and an updated play area with a variety of play features for both older and younger children as well as those with limited mobility. The park's iconic elements such as the 'snake' feature and existing hill allowing a southern view were preserved. Funding for the project includes a $2,500,000 grant from the American Rescue Plan Act, a federal grant program. DISCUSSION Two bids were received and opened on June 4, 2024. The lowest bid was submitted by GradeTech, Inc. of Livermore, California, with a bid of $2,921,950.55, with the second bid being submitted by MVP Construction at $4,788,102. Bid results are summarized in Attachment C. The Engineer's estimate was $3,350,000. After opening the bids, the Town received bid protests from both bidders (Attachments D and E). Based on the review and analysis of both bids, the project specifications, applicable law, the protests, and the responses submitted, staff recommends rejecting the protests and awarding the contract to GradeTech as the lowest responsive bidder. MVP Protest of GradeTech Bid MVP, the second lowest bidder, alleged three areas in which the GradeTech bid was non- responsive: • The bid specifications call for the contractor installing the playground equipment to be "trained and approved by the manufacturer." MVP alleges that GradeTech doesn't meet that requirement. Because the specifications do not require this to be met at the time of bid submittal, the Town's interpretation is that it must be satisfied prior to installation of the play equipment. • The bid specifications call for certain portions of the site work to be certified by a licensed surveyor or engineer. MVP alleges that GradeTech has not listed a surveyor on their list of subcontractors. This argument fails for two reasons. First, the subcontracting law in the Public Contract Code only applies to licensed contractors, not to other consultants licensed under other laws, such as surveyors. Second, no subcontractor needs to be listed if their work amounts to less than 0.5% of the total project. GradeTech has informed the Town that this is the case here. • MVP argues that the specifications require the winning bidder to have a "skatepark contractor" and/or a "skatepark designer" as part of their bid. With regard to a skatepark contractor, there is no such license or classification. The GradeTech bid lists a shotcrete subcontractor who has the certification that is required in the specifications. With regard to the skatepark designer, the specifications for the park are very detailed, both in terms of design and construction requirements. In the event that a question about design were to arise during construction, the Town would use its normal process of forwarding the question to the original designer for clarification/revision. That is not the job of the contractor. • Finally, MVP alleges that post -bid opening contacts between GradeTech and Aaron Spohn, a subcontractor on MVP's bid, constitute illegal "bid shopping." The state law is very clear on how and when a general contractor can substitute a subcontractor after bids are opened and the Town is well aware of those requirements and will enforce them. A mere conversation does not violate any law. GradeTech Protest of MVP bid Because the Town has determined that GradeTech is the low -responsive bidder, this protest is of less importance, but in order to provide everyone with clear answers this report addresses it. The GradeTech protest lists three areas of alleged non- responsiveness. (Attachment E) The staff has reviewed the response provided by MVP (Attachment F) as well as the additional letter provided by GradeTech's attorney (Attachment H). Town staff agrees that there are inconsistencies in the MVP bid which appear to make it non-responsive but agrees with MVP's view that they are performing the minimum of 30% of work. Given the fact that the GradeTech bid is responsive, there is no need for additional analysis at this time. The work is scheduled to begin in summer 2024 and be completed later in winter 2024. This project is considered maintenance and repair work and is therefore Categorically Exempt from the requirements of the California Environmental Quality Act (CEQA) according to Guidelines Section 15301 (Class 1). Award of Construction Contract 2 Diablo Vista Park Play Area Renovation and Multi -Sport Skate Park, CIPs B-560 & B-616 July 2, 2024 PUBLIC CONTACT Posting of the meeting agenda serves as notice to the general public. Before construction begins, residents within proximity to the project will be notified by the contractor in writing. In addition, project identification signs will be posted together with changeable message boards. FISCAL IMPACT The low bid amount of $2,921,950.55 plus bid alternate 4A which includes boulders in the amount of $26,761, totals $2,948,711.55, plus a 10% contingency amount of $294,871.16 yields a total construction budget of $3,243,582.71. RECOMMENDATION Adopt Resolution No. 50-2024, awarding a construction contract for Diablo Vista Park Play Area Renovation and Multi -Sport Skate Park, CIPs B-560 & B-616. Prepared by: (.3,6Pa4 Bob Russell, PLA. Landscape Architect Reviewed by: Diane J. Friedmann Development Services Director Attachments: A - Resolution No. 50-2024 B - CIP Page No. B-560 & B-616 C - Bid Results Summary D - MVP bid protest 6/10/24 E - GradeTech bid protest 6/11/24 F - MVP response to protest 6/13/24 G - GradeTech response to protest 6/20/24 H - Additional GradeTech letter 6/21/24 Award of Construction Contract 3 Diablo Vista Park Play Area Renovation and Multi -Sport Skate Park, CIPs B-560 & B-616 July 2, 2024 DocuSign Envelope ID: 0AB7635B-A2DD-4D82-8D2E-5F2762DA76EF RESOLUTION NO. 50-2024 AWARDING A CONSTRUCTION CONTRACT FOR DIABLO VISTA PARK PLAY AREA RENOVATION AND MULTI -SPORT SKATE PARK, CIPS B-560 & B-616 WHEREAS, the Danville Town Council has previously approved funding in the Capital Improvement Program for Diablo Vista Park Capital Maintenance and Multi -Sport Skate Park, CIPs B-560 & B-616; and WHEREAS, the funding includes a $2,500,000 grant from the American Rescue Plan Act, a federal grant program; and WHEREAS, the Town has determined that the project is Categorically Exempt from requirements of the California Environmental Quality Act (CEQA); and WHEREAS, bids were solicited from contractors for the project; and WHEREAS, the City Clerk of this Town did, in open session on the 4th day of June, 2024, publicly open and read aloud the sealed bids received as required by law; and WHEREAS, the Town received bid protests from both bidders. The bid protests identified several items allegedly making the bids non-responsive. Based on the review and analysis of both bids, the project specifications, applicable law, the protests and responses submitted, the Town has determined that the protests are without merit and that both bids are responsive. As a result, the low responsive bid was submitted by GradeTech, Inc. of Livermore, California and the City Engineer recommends awarding a construction contract for the project to said contractor; now, therefore, be it RESOLVED, by the Danville Town Council, that the Town award a construction contract for Diablo Vista Park Play Area Renovation and Multi -Sport Skate Park, CIPs B-560 & B- 616, to GradeTech, Inc. of Livermore, California; and, be it further RESOLVED, by the Danville Town Council, that the Town Manager be and hereby is authorized to execute, on behalf of the Town, a written contract with GradeTech, Inc. of Livermore, California for $2,948,711.55 and authorize the use of a 10% contingency not - to -exceed $294,871.16 for a total construction budget of $3,243,582.71 for work in connection therewith, and the City Clerk is hereby directed to attest same and affix thereto the official seal of the Town; and, be it further RESOLVED, that staff shall within five (5) days of the adoption of this resolution, transmit an Extract of Public Works contract award to the Department of Industrial Relations, Division of Apprenticeship Standards, P.O. Box 420603, San Francisco, CA 94142. (Note: Should a finding of any discrepancy regarding this ratio of apprentices to ATTACHMENT A DocuSign Envelope ID: 0AB7635B-A2DD-4D82-8D2E-5F2762DA76EF journeymen be made, the Town shall notify the Division of Apprenticeship Standards of such findings.) APPROVED by the Danville Town Council at a regular meeting on July 2, 2024, by the following vote: AYES: NOES: ABSTAINED: ABSENT: APPROVED AS TO FORM: ,-DocuSigned by: lZ z E. E44441 895C6C4OADBF4BF MAYOR ATTEST: CITY ATTORNEY CITY CLERK PAGE 2 OF RESOLUTION NO. 50-2024 DIABLO VISTA PARI( CAPITAL MAINTENANCE CIP No: B-560 1 STATUS: In Design 1 GREEN PROJECT:Yes 1 PRIORITY: 2/3 PROJECT COST ESTIMATE 1 PROJECT MANAGER: DC This project has been modified from the previous year. PROJECT DESCRIPTION AND LOCATION: This project provides ongoing maintenance of Diablo Vista Park facilities including: Ongoing: Major tree pruning Sports field and pathway lighting repairs Restroom maintenance - painting and repairs Cyclone fence and backstop repairs Fence painting and repairs Safety surface repairs Tennis/basketball court repairs Windscreen repairs/replacement 2022/23 Playground equipment replacement design 2023/24 Playground equipment replacement Construct Skate Park (B-616) Future Projects: Replace Field Lighting with LED ($700,000) Parking lot repairs and resurfacing DESCRIPTION OF MODIFICATIONS: Moved playground replacement design and construction out a year. Added funding for 2027/28. PRINTED ON: 5/22/2023 Expenditure Category Capital Maintenance Construction Total Cost Estimate: Total Expenditure: Prior Years 2023/24 2024/25 2025/26 2026/27 2027/28 Total $937,283 $25,000 $962,283 $318,849 $500,000 $150,000 $150,000 $150,000 $150,000 $0 $0 $0 $0 $0 $500,000 $150,000 $150,000 $150,000 $150,000 Unexpended: $643,434 on 03-30-2023 $2,037,283 $25,000 $2,062,283 ..P. RQJECT..APPRQ PRIAIIQIIL.AND. EUNDIN.G Funding Source(s) CIP Gen Purpose Rev LLAD Zone D Park Facilities Total Funding: Prior Years 2023/24 2024/25 2025/26 2026/27 2027/28 Total $0 $500,000 $0 $0 $0 $0 $500,000 $26,907 $0 $0 $0 $0 $0 $26,907 $935,376 $0 $150,000 $150,000 $150,000 $150,000 $1,535,376 $962,283 $500,000 $150,000 $150,000 $150,000 $150,000 $2,062,283 RATIONALE FOR PROPOSED PROJECT: Provide for ongoing repair. CIP71 EXPECTED IMPACT ON OPERATING BUDGET: Additional worker hours required to maintain per year: 0 Additional Town direct operating costs per year: $0 ATTACHMENT B MULTI -SPORT SKATE PARI( CIP No: B-616 1 STATUS: In Design 1 GREEN PROJECT: No 1 PRIORITY: 1/2 PROJECT COST ESTIMATE 1 PROJECT MANAGER: HRP This project has been modified from the previous year. PROJECT DESCRIPTION AND LOCATION: The Parks, Recreation and Arts Commission recommends this as a high priority parks project. The project is identified in the Parks, Recreation, and Arts Strategic Plan as an important enhancement to the Parks, Recreation, and Arts system. 2018/19: Study for potential locations will include search for a location and a conceptual design. (COMPLETE) 2023/24: Multi -sport skate park design and construction at Diablo Vista Park; project will be combined with playground equipment replacement (B-560) DESCRIPTION OF MODIFICATIONS: Updated funding. PRINTED ON: 5/22/2023 Expenditure Category Prior Years Study $20,000 Design $330,000 Construction $2,170,000 Total Cost Estimate: $2,520,000 Total Expenditure: $178,020 2023/24 2024/25 2025/26 2026/27 2027/28 Total $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Unexpended: $2,341,981 on 03-30-2023 $0 $0 $0 $0 $0 $0 $0 $0 $20,000 $330,000 $2,170,000 $2,520,000 ..P. RQJECI.APPRQ PRIAIIQIIL.AND. FUNDIN.G Funding Source(s) ARPA CIP Gen Purpose Rev Park Facilities Total Funding: Prior Years $2,500,000 $0 $20,000 $2,520,000 RATIONALE FOR PROPOSED PROJECT: Provide recreation facilities for residents. 2023/24 2024/25 2025/26 2026/27 2027/28 Total $0 $0 $0 $0 $0 $2,500,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $20,000 $0 $0 $0 $0 $0 $2,520,000 CIP73 EXPECTED IMPACT ON OPERATING BUDGET: Additional worker hours required to maintain per year: 50 Additional Town direct operating costs per year: $5,000 PROJECT: Diablo Vista Park Playground Renovation and Multi -Sport Skate Park, Project #B-560 & B-616 BID OPENING: June 4, 2024 at 2:00 p.m. PST Please direct all questions regarding this bid opening to: Bob Russell, Landscape Architect, (925) 314-3315 brussell@danville.ca.gov BID RESULTS SUMMARY CONTRACTOR BID AMOUNT * Grade Tech Inc. $2,921,950.55 MVP Construction Inc. $4,788,102.00 $ $ $ $ $ $ $ *Lowest Responsive Bid I, Marie Sunseri, City Clerk for the Town of Danville, do hereby affirm that the bids received were not opened prior to the time of the public bid opening. ATTACHMENT C CONSTRUCTION June 10, 2024 Delivered via Email: Attn: City Attorney Diablo Vista Playground Renovation & Multi Skate Park Contract Nos B-560 & 616 This letter is intended to serve as an official letter of Bid Protest by M V P Construction LLC regarding the incomplete Bid which was non -responsively submitted by GradeTech Inc. for the Diablo Vista Playground Renovation & Multi Skate Park Contract Nos B-560 & 616. Under mandated rule of "Subcontractor Information; Department of Industrial Relations Registration" Bidders shall provide the names, business addresses and all license numbers of all subcontractors listed on bidder's List of Subcontractors — as clearly stated in the Bid Form. Furthermore, this public works project is subject to compliance monitoring and enforcement by the DIR. "The successful bidder shall furnish a complete list of all subcontractors as required under the Request for Proposal and pursuant to Section 4100 to 4113 of Public Contract Code, Section 8-1.01 of the Standard Specifications." All bidders are required to list subcontractors whose bid values exceed the '/2 of 1% threshold of their total bid that will perform work or provide services. Any scope not listed is deemed self -perform. Thus, the concept of responsibility focuses on the contractors' worthiness, quality, ability, and capacity to satisfactorily perform. City of Inglewood -Los Angeles Civic Center Auth. V. Superior Court, 7 Cal. 3d 861 (1972) ### I. Violation of Mandatory Subcontractor Listing & Non Compliance with Licensing Requirements Per the Specifications, Special Provisions of the bidding documents, on Page 39 out of 213. Under 10.5 Construction Staking (Bid Item 5). 10.5.01 General - The Contractor shall be responsible for all land surveying and shall provide construction stakes or marks necessary to establish the limits, lines, alignments, and grades required for proper construction staking layout and completion of the work as shown on the drawings, as specified in these Special Provisions, and as directed by the Engineer. All construction staking shall be provided under the direction of either a professional land surveyor licensed by the State of California, or an Engineer qualified to perforin land surveying. After reviewing the subcontractor list submitted by GradeTech, they failed to list a subcontractor for the necessary Surveying and Staking work on the project. As noted above, they need the proper license to self -perform this work. They do not have the appropriate specialty license to perform this work. (See attached CSLB license check.) In addition to the above, they also failed to list a subcontractor for the (Equipment) Playground Equipment and Fitness Equipment as a major supplier and failed to submit an appropriately licensed and certified subcontractor to install the playground equipment. The specifications under section 116800 Play and Fitness Equipment and Structures, in the Special Provisions, under 11.8 Quality Assurance B. Installer Qualifications. "An entity that employs installers and supervisors who are trained and approved by manufacturer." (at time of bid) As it currently stands, the manufacturer who is Landscape Structures certifies installers and currently GradeTech is not certified with them as an installer and therefore cannot provide you with a warranty on the project. This makes their bid non-responsive. This was also confirmed by the supplier, Ross Recreational, via email from MVP sent to Bob Russell, where Ross Recreational did confirm that Landscape Structures does certify the installers. Lastly, they also failed to list a Skate Park Subcontractor as noted per 10.10.5 Skate Park (Bid Item 11) as noted in the Special Provisions starting on page 39 out of 213. This is for all work and incidentals for doing all the work involved, including being able to submit a Submittal for the Skate Park Design by a Licensed Engineer. The plans mvpcl lc.com 1 0: 925.586.1478 428 N. Buchanan Circle #15 Pacheco, CA 94553 License #1047890 ATTACHMENT D on Sheet SK2.0 under the specifications on that page list that "any engineering design provided by Contractor or others and submitted for review shall be wet signed and stamped by an insured registered structural or civil engineer licensed in California. They do not currently possess that license and did not list a Skate Park Designer Subcontractor that would be the one creating a Shop Drawing as required. They only listed a subcontractor for the shotcrete. They did not list a subcontractor for the Rebar, and Misc Metal work involved at the Skate Park. In addition, they also called Spohn Ranch, our listed Skate Park subcontractor after the bid, looking for a bid from them on the Rebar as confirmed with Spohn Ranch. This is the definition of GradeTech bid peddling and bid shopping to get an advantage and force contractors to price the job for a lessor amount. ### II. Legal Provisions Breached GradeTech's submissions not only fail to conform to the mandatory requirements of the bid documents but also compromise the integrity of the bidding process and adherence to the CSLB, Business and Professions Code, and the Public Contract Code requirements. ### III. Appeal for Rejection Based on meticulous adherence to statutory requirements and industry standards, M V P Construction LLC emerges as the lowest responsible and responsive bidder. We ardently appeal to the Town of Danville to reject the non- compliant bid of GradeTech, as they fail to meet the mandatory requirements of the bid documents and contractual obligations under Contract Code 20111, breaching the basic principles of competitive bidding and conformance. ### IV. Request for Adherence It is imperative for procedural correctness and lawful adherence to be maintained, awarding the contract only to responsible contractors submitting responsive bids. Upholding the integrity of the bidding process is essential to ensure fairness and legality in the awarding of public works contracts. ### V. Conclusion M V P Construction LLC as the lowest responsible and responsive bidder, respectfully requests the rejection of the bid from GradeTech. We believe an award in our favor is both proper and justified under the circumstances and adherence to the law. The Town of Danville must not overlook the basic rules of competitive bidding and conformance. A Bid that does not conform to mandatory requirements of the bid documents and has not met all the bid requirements cannot be accepted. Therefore, the bid as submitted by GradeTech should be rejected as incomplete and nonresponsive to the required documents qualifying a complete bid. An agency is bound to follow the terms of the solicitation and may be ordered by writ of mandate to do so. Pizar v. Department of Transportation, 144 Cal. App.3d 269,272 (1983). By Law, the Town of Danville can award a contract only to a responsible contractor that submits a responsive bid. Contract Code 20111 In Closing, as for the details set forth above, M V P Construction LLC respectfully requests that the Town of Danville reject the bid of GradeTech. M V P Construction LLC is the lowest responsible and responsive bidder and an award to M V P Construction LLC is proper. Sincerely, Mev Mike Vila, Owner/President M V P Construction LLC Gradetech Inc. General Engineering Contractor Lic. A628365 June 11, 2024 BY EMAIL Town of Danville Attn: Bob Russell, PLA Development Services Department 500 La Gonda Way Danville, CA 94526 Brussell@danville.ea.gov Re: Diablo Vista PlayEround Renovation and Multi -Sport Skate Park, Contract Nos. B-560 & B-616 To Whom It May Concern: After reviewing the Bid Proposal that MVP Construction LLC submitted for the Diablo Vista Playground Renovation and Multi -Sport Skate Park project GradeTech Inc. would like to raise some concerns about the responsiveness of the bid proposal. 1. MVP Construction listed 12 subcontractors on their bid with a total of 83% of the work being performed by others. Per Cal Trans Spec 3-507A Amount of Work Subcontracted, the standard specification requires that the prime contractor to perform at least 30 percent of work using the contractors own organization unless a different percentage is specified in the special provision. It appears that MVP will only be performing 17% of the work to be completed. 2. Another irregularity GradeTech Inc. found in MVP Construction's bid proposal is that Additive Alternate Number 3 bid item 2 "Clearing and Grubbing" a unit price as well as an item total was not provided, it was left blank. Again, in Additive Alternate Number 4A both bid items 2 and 3 were listed as $0.00. 3. It appears that neither that signature page nor the bidder's bond contained an embossed seal for MVP Construction, which is typically required on bid proposals. Sincerely, Sam Rivinius President 299 W Jack London Blvd. Livermore, CA 94551 •TeI: (925)401-5092 Fax:(925)397-6733 ATTACHMENT E CONSTRUCTION June 13, 2024 BY EMAIL Town of Danville Attn: Rob Ewing Town Attorney 500 La Gonda Way, Danville, CA 94526 Email: rewing@danville.ca.gov Project: Diablo Vista Park Playground Renovation and Multi -Skate Park Contract NO. CIP B-560 & B-616 This Tetter is in response to GradeTech Inc.'s Letter to the Town of Danville about MVP's bid. As noted in the letter from GradeTech Inc., they are raising concerns about the responsiveness of another bid. This is a bit strange considering GradeTech was the apparent low bidder. The apparent low bidder (first place) generally cannot protest the second lowest bidder. Instead, a bid protest typically occurs when a bidder challenges the process or outcome of the bidding. GradeTech responded to a protest by the second place bidder with concerns about "the responsiveness of the bid," this doesn't constitute a formal bid protest against the second bidder. Instead, it seerns to be a defensive response to the initial protest. The first place bidder is generally expected to defend their position as the lowest bidder by addressing the points raised in the protest, rather than lodging a new protest against the second bidder. GradeTech presented no evidence that MVP's statements are wrong as noted in our Bid Protest. Although not required, MVP will respond to their points of concern noted in their letter for further clarity and their understanding. Regarding item #001 rnvpcl Ic.cam 1 0: 925.586.1478 2410 Saybrook Place, Martinez, CA 94553 License # 1047890 ATTACHMENT F We listed subcontractors and suppliers for transparency. Since there are major suppliers on the project, we felt it necessary for the public to know and to show a complete bid for materials that were just being supplied. 13% out of that 83% is just the suppliers, which can be determined by reading and adding up the percentages as noted in the bid form. Meaning they are only furnishing materials and not installing. Suppliers are not considered subcontractors and do not get a subcontract. They get a Purchase Order. If you just calculate the subcontractors and not the suppliers, it shows 70% Subcontracted out and 30% for MVPs portion. Our Bid Form is re -attached. Regarding item #002 Award Criteria is based on the Base Bid Total Bid. See the note at the bottom of the page of the Total Bid Summary. Add Alternates are not a factor in determining the low bidder. Regarding item #003 We are a limited liability company, and do not have a corporate seal, this has never been an issue. Typically, Corporations have a seal. We are not incorporated like GradeTech. This again is a non -issue. These are all items that do not affect the total base bid or change the outcome of what was submitted and what the awarding criteria is based upon. Thank you, Mike Vila Owner/President V ' Construction 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 428 N. Buchanan Circle #15 Pacheco, CA 94553 MATHEW R.TROUGHTON E-MAIL Mathew.Troughton@hennighlaw.com June 20, 2024 VIA EMAIL (rewinqadanville.ca.gov) Town of Danville Attn: Rob Ewing Town Attorney 500 La Gonda Way, Danville, CA 94526 HENNIGH IOW €orr,oranien Re: Project Diablo Vista Playground Renovation & Multi -Sport Skate Park Contract Nos CIP B-560 & B-616 Dear Mr. Ewing, This letter is GradeTech, Inc.'s ("GradeTech") formal letter response to bid protest letter dated June 10, 2024 by disappointed bidder MVP Construction LLC ("MVP") whose base bid of $4,788,102 is $1,866,151.45 more than Gradetech's bid. I. INTRODUCTION "[C]ities, as well as other public entities, are required to put significant contracts out for competitive bidding and to award the contract to the lowest responsible bidder.... A bid is responsive if it promises to do what the bidding instructions require. Usually, whether a bid is responsive can be determined from the face of the bid without outside investigation or information." MCM Const., Inc. v. City & Cty. of S.F., 66 Cal. App. 4th 359, 368 (1998). Here, GradeTech's bid is clearly responsive as determined from the face of the bid without outside investigation or information. MVP's arguments are each based upon false assertions concerning the bidding instructions, mostly attributable to MVP's false premise that design professionals and material suppliers are "subcontractors" that needed to be listed on the "Subcontractor List" pages of GradeTech's bid. The truth is the "Subcontractor List" expressly requests each subcontractor's "California State Contractor License No(s)" while the Notice to Bidders explicitly states a "subcontractor" is a contractor who "possesses a valid California contractor's license issued by the Contractor's State License Board (www.cslb.ca.gov) for the type(s) of work they are proposing to perform at the time the bid is submitted." MVP also purposefully ignores that the Subcontractor List instructions state "The Bidder shall list ... each subcontractor to whom the Bidder proposes to subcontract portions of the work in an amount in excess of one-half of one percent of the total bid Hennigh Law Corporation Four Embarcadero, Suite 1400 San Francisco, CA 94111 700 Flower Street, Suite 1000 Los Angeles, CA 90017 ATTACHMENT G Town of Danville Attn: Rob Ewing June 20, 2024 Page 2 or $10,000, whichever is greater...." Two of the GradeTech vendors MVP complains about fall within the forgoing de minimis exception. II. GRADETECH'S BID IS COMPLETELY RESPONSIVE TO ALL ACTUAL BIDDING REQUIREMENTS, AND MVP'S ARGUMENTS BASED UPON NON- EXISTENT BIDDING REQUIREMENTS HAVE NO MERIT. First, MVP erroneously argues that "subcontractor" includes surveyors and suppliers. However, MVP's argument is incorrect. According to the Notice to Bidders, a "subcontractor" is a contractor who "possesses a valid California contractor's license issued by the Contractor's State License Board (www.cslb.ca.gov) for the type(s) of work they are proposing to perform at the time the bid is submitted." Next, MVP ignores the pricing rule on the Subcontractor List form that explicitly states, "The Bidder shall list ... each subcontractor to whom the Bidder proposes to subcontract portions of the work in an amount in excess of one-half of one percent of the total bid or $10,000, whichever is greater...". MVP's argument regarding surveyors fails for two reasons. Surveyors are professional engineers and do not possess contractor licenses issued by the Contractors State License Board. Rather, surveyors are licensed by the Board for Professional Engineers, Land Surveyors, and Geologists (https://www.bpelsg.ca.gov/). Specifically, Cullen -Sherry & Associates Inc., GradeTech's professional surveyor, is not considered a "subcontractor" in accordance with the Town of Danville's provisions. Second, Cullen -Sherry's work is valued at $13,680.00, an amount less than $14,609.75 which is one-half of one percent of GradeTech's total base bid. (See Exhibit A - Cullen -Sherry & Associates Inc.'s Price Proposal dated June 3, 2024). This price does not meet the threshold required for listing on the Subcontractor List. For the above reasons, there is no merit to MVP's argument regarding an alleged failure by GradeTech to include its' surveyor in the Subcontractor List. Second, MVP argues that GradeTech's bid is non-responsive because GradeTech allegedly did not follow two bid requirements that, in reality, exist nowhere in the solicitation documents, but rather were made-up by MVP itself. MVP's phony requirements start with the incorrect assertion that GradeTech was required to list a mere supplier of playground equipment as a "subcontractor" and evolves further with an unsupported assertion that GradeTech must already be certified by that supplier in order to submit a bid at all. MVP's trick is embodied by a MVP parenthetical which states, "(at the time of bid)." That parenthetical language exists nowhere in the bidding requirements. GradeTech's bid is fully responsive to the actual requirements of the Town of Danville's solicitation for bids. To the extent certification is required, it will be properly obtained prior to installation. Third, MVP next weaves a convoluted argument with the punchline that GradeTech "did not list a Skate Park Designer Subcontractor that would be the one creating a Shop Drawing as required." (emphasis added). Skate Park designers are designers, Town of Danville Attn: Rob Ewing June 20, 2024 Page 3 not "subcontractors." Again, according to the Notice to Bidders, a "subcontractor" is a contractor who "possesses a valid California contractor's license issued by the Contractor's State License Board (www.cslb.ca.gov) for the type(s) of work they are proposing to perform at the time the bid is submitted." Skate Park designers do not get contractor's licenses. Designers are regulated by either California's Board for Professional Engineers, Land Surveyors, and Geologists or the California Architects Board, not the California Contractors State License Board. Again, MVP's argument has no substance and GradeTech's bid is proper and responsive in all respects. Fourth, MVP complains that GradeTech's rebar subcontractor, PJ's Rebar & Stud Rails, is not listed on the Subcontractor List. That subcontractor's proposal to Gradetech is less than one-half of one percent of GradeTech's total bid, amounting to $10,903.93, an amount far less than the $13,680.00 that would be one-half of one percent of GradeTech's total base bid. (See. Exhibit B) Therefore, GradeTech was correct again in not listing its rebar subcontractor in the Subcontractor List. Fifth and finally, MVP's arguments "### II," "###III," "###IV," "###V," are gibberish requests for "Legal Provisions Breached," "Appeal for Rejection," "Request for Adherence," and "Conclusion." MVP argues the "Town of Danville must not overlook the basic rules of competitive bidding and conformance," concepts that MVP itself clearly does not understand. A bid is responsive if it promises to do what the bidding instructions require. GradeTech's bid does just that. MVP has no authority to concoct new and different bidding instructions than those provided by the Town of Danville. MVP's bid protest has no merit. The contract should be awarded to GradeTech. By separate letter, GradeTech will set forth the reasons why MVP's bid is non- responsive and should be disqualified. Very truly y Mathew R. `iughton, Esq. HENNIGH LAW CORPORATION cc: GradeTech Inc. (gradetinc@sbcglobal.net) MVP Construction LLC (mike c(�mvpclIc.com) Bob Russell (brussell@danville.ca.gov) EXHIBIT A Cullen -Sherry & Associates, Inc. GradeTech Sam Rivinius 299 W Jack London Blvd. Livermore CA 94551 Reg: Diablo Vista Park Playground Renovation, Danville Contract No. B-560, & B-616 June 3,2024 Sam, We have reviewed the 100% submittal plans for the above noted project for the City of Danville. The plans were prepared by O'Dell Engineering, dated 203-09-15. We have the following comments and estimated pricing: 1. The project survey was based on CA State Plane, Zone 3, 1983 (CCS83). We will require at least 1 local control point, from the original survey, to assure we are able to match/reproduce the project coordinates. 2. We will require an AutoCAD file(s) of the original topographic survey and design layout. 3. The project is prevailing wage requiring certified payroll reporting for field crew hours. 4. A 2 man survey crew using Trimble robotic equipment will utilized. 5. We will require a minimum of 1 week notice to provide time for project and CAD setup, office calculations and DAS-140 notification. 6. We anticipate the following hours and fees: a. Project Startup / Setup & Plan Review: 8 hours @ $195/hr: $1,560 b. Office Calculations: 8 hours @ $195/hr: $1,560 c. Field Survey (2 man crew): 24 hours @ $365/hr: $8,760 d. Cut Sheets & Plats: 6 hours @ $195/hr: $1,170 e. Project Management & CPR: $630 7. Total Estimated fees: $13,680.00 Per our standard working agreement, we will invoice GradeTech on a Time & Materials Based on the above listed rates for services. If you have any questions or concerns, please let me know. Sinc rely, //c Rod Sherry, P.E. PO Box 591 • 1090 Aoams St Suite A • Benicia, CA 94510 • www csa-engineers com • Tel 707-745-3219 • fax 707-745-9436 EXHIBIT B �5 REBAR & STUD RAILS Quotation Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX COMPANY: GRADE TECH, INC. JOB NAME: DIABLO VISTA PARK RENOVATION QUOTE DATE: May 30, 2024 CONTACT: FULTON, GREG PRELIEN INFORMATION REQUIRED PRIOR TO FIRST DELIVERY THIS QUOTATION WILL EXPIRE ON June 28, 2024 FOR REBAR SOURCING PLEASE SEE IMPORTANT READ SIGN SECTION METHOD OF PAYMENT COUNTY TAX F.O.B. ESTIMATE REF. SALESPERSON NET 30 DAYS 8.750% DELIVERED 24-RD155 Enriquez, Javier QTY UOM ITEM DESCRIPTION UNIT PRICE TOTAL FOB QUOTE IS FOR FABRICATED REBAR BY PJ's *INCLUDES: - SKATE PARK FND. - SKATE PARK SLAB - SHOP DRAWINGS - (1) DELIVERY TO THE JOBSITE $10,026.60 FOB SubTotal: $10,026.60 DELIVERY SURCHARGE: DELIVERY CHARGE SUBJECT TO CHANGE BASED ON FUEL PRICES Page: 1 of 6 SubTotal: Sales Tax: Grand Total: $10,026.60 $877.33 $10,903.93 �5 REBAR & STUD RAILS Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX INCLUSION & ASSUMPTIONS: ESTIMATE IS FOR: SKATE PARK REINFORCMENT THROUGHOUT RAMPS, CURBS, THICKEN EDGES,STAIRS, AND STEM WALLS. EXCLUDE ALL SLIP DOWELS ON SHEET SK9.0,SK9.1 NO REINF. SPECS OR SPACING PROVIDED. ASTM 615 GRADE 60 48D LAP SPLICE (ASSUMED) NO LAP SCHEDULE Page: 2 of 6 �5 REBAR & STUD RAILS Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX INCLUSION & ASSUMPTIONS (cont'd): Standard Lead Time: This bid is based on a standard lead time listed below. Additional charges will apply for orders requested sooner than our standard lead time. Lead time is determined based on the time the order generated to the requested delivery date, not when the order is confirmed. Fabrication Lead Time = 3 days Preassembled Lead Time = 10 business days. Detailing and Shop Drawings: Pricing includes both detailing and required shop drawings submittals and plans to jobsite. Detailing charges to be billed when drawings are submitted for approval or upon each release. Re -detailing charges may apply and will be billed at a rate of $ 75.00 /hr ( or at contract price if significant changes are required) and are extra to this contract. Agreed Upon Pricing Structure: Lump Sum: It is understood that this is a Lump Sum billable project. Therefore, if unit price or estimated weights are listed above, it is for reference bidding purposes only. Additionally, the unit price may change periodically based on the amount left to ship or remainder of contract due to be billed. PJ's reserves the right to bill up to the Lump Sum amount upon final shipment or notice of completion. PJ's will submit a final billing to complete this contract. PJ's will not bill above this Lump Sum amount unless change orders, extras to contract, or Buyer ordering errors occur. Transportation Includes 1 delivery to jobsite. Deliveries must be unloaded within two hours of arrival. If more time is necessary, there will be a detention charge of $75 per hour. Additional deliveries, excluding those caused by PJ's errors or corrections, will cost $550.00 per load. All deliveries arrived on site are FOB. The material is to be offloaded by the purchasing contractor. Pj's Rebar Inc. is not responsible for unloading or rigging any materials on the truck or trailer. DRAWING REFERENCES: APPROVED DRAWINGS DATED:[4/25/2024] SK1.0, SK1.1, SK2.0, SK2.1, SK3.0, SK4.0, SK5.0, SK6.0, SK7.0, SK8.0, SK8.1, SK8.2, SK9.0, SK9.1. Page: 3 of 6 �5 REBAR & STUD RAILS Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX EXCLUSIONS: 1.Bonds or rentention on material or our labor. 2.Establishment of grades, lines of templates. 3.AII Testing and inspection. 4.Cleaning, reworking or cutting of existing reinforcement. 5.Hoisting, lowering or placing. 6.Pile dowels, smooth bar, mesh or drilling ( unless quoted specifically above ). 7.Masonry reinforcement of any kind ( unless quoted specifically above ). 8.sidewalk, paving site work, curb and gutter ( unless noted above ). 9.Welding, end prep, form savers, or coupler systems ( unless noted above ). 10.Traffic control, over -length or special permits related to travel or access. 11.Post-Tension ( unless noted above ). 12.Dumpster for clean up, removal of excess rebar ( additional costs apply ). 13.Hold down steel, rebar protection, and additional template steel. 14.Any phases not previously priced or mentioned. 15.Detailing cost as a result of significant drawing revisions. 16.Excludes additional fuel or delivery charges. 17.Chairs or accessories ( unless noted above ). 18.Trim and/or additional rebar required at Mech Openings. Page: 4 of 6 �5 REBAR & STUD RAILS Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX SPECIAL INSTRUCTIONS: JOB PARAMETERS: Fabrication Start Date: June 28, 2024 Shipping Completion Date: August 27, 2024 Job Name and Delivery Address: Job Name: DIABLO VISTA PARK RENOVATION Address: Street: 1000 TASSAJARA RANCH DRIVE City: DANVILLE Zip: State: CA Page: 5 of 6 �5 REBAR & STUD RAILS Quote#: 0056027 45055 Fremont Blvd. - Fremont, CA 94538 TEL#: 800-347-7141 - FAX 866-333-2FAX IMPORTANT READ AND SIGN General Conditions and Disclaimers: The purchaser, without charge to the seller, shall provide access roads to the point where material is to be placed or hoisted, grades, lines, racks, templates, hoisting, and adequate scaffold in place, if needed. Provide space for delivery and storage of steel accessible to semi -tractor trailer or bobtail deliveries and adjacent to place where material is to be placed or hoisted. Purchaser is responsible for providing latest set of drawings, addendums, and corrected shop drawings in a timely manner in order to ensure correct material is fabricated and delivered. Orders will not be fabricated until approved shop drawings have been returned from engineer unless consented to by the purchaser, PJ's cannot guarantee quantity or dimensions without approved drawings. Detailing, fabrication and delivery will be in accordance with C.R.S.I. standards. Above prices are based on splicing and or coupling of reinforcing steel where shown on plans ONLY . The purchaser will pay for any additional splices or couplers for the convenience of purchaser that are not paid by the owners. All terms and conditions of this quotation are to be incorporated into the subcontract agreement between the seller and general contractor. Volatility Disclaimer: (1) All quotations are based upon the best pricing information currently available and may be good for no longer than 30 calendar days (2) After the thirtieth day, if the quotation is not signed and approved with a confirmed ship and complete date, this quotation may require re -pricing based on current market conditions. (3) Start and complete dates must accompany all valid orders. Quotes will be priced based upon the best information available based on anticipated start and complete dates for job. If the project starts later than anticipated, for any reason or continues beyond the complete date, job may be subject to additional pricing. (4) PJ's will be held harmless and without penalty, liquidated damages or back charges due to any material shortages caused by mill shortages, delays, or cancellations. (5) Given the fluctuation of both scrap and rebar prices historically, PJ's reserves the right to fabricate, ship and invoice for any and all portions of project. Customer is responsible for any refusals of rebar based on these disclaimers. Taxation: Sales tax subject to change based on California updated tax rates. Rebar Source: PJ's reserves the right to purchase both domestic or import ASTM A615/A706 rebar for this quote unless otherwise told. Due to the lack of domestic suppliers ability to provide material, it's given PJ's no choice but to provide imported rebar from several countries. Buyer's signature and acceptance of terms and conditions: Date: / / By: Print Name: Print Title: Page: 6 of 6 MATHEW R. TROUGHTON E-MAIL Mathew.Troughton@hennighlaw.com June 21, 2024 VIA EMAIL (rewingadanville.ca.gov) Town of Danville Attn: Rob Ewing Town Attorney 500 La Gonda Way, Danville, CA 94526 HENNIGH corporothm Re: Project Diablo Vista Playground Renovation & Multi -Sport Skate Park Contract Nos CIP B-560 & B-616 Dear Mr. Ewing, This is GradeTech, Inc.'s ("GradeTech") further letter protesting the bid of MVP Construction LLC ("MVP"). I. GRADETECH HAS STANDING TO PROTEST MVP'S BID. There is no merit to MVP's argument in its letter to Town of Danville ("Danville") dated June 13, 2024, that Gradetech as "[t]he apparent low bidder (first place) generally cannot protest the second lowest bidder." This is made clear by the Danville Municipal Code section 3-8.13, entitled "Protest Procedure", which only restricts who may file a bid protest to the time period "After the award of any contract, ...." No one has yet been awarded the contract at issue. MVP cites no legal authority supporting its meritless assertion. Gradetech has standing to protest MVP's bid. II. MVP'S BID IS NOT RESPONSIVE BECAUSE IT INCLUDES A VARIANCE THAT AFFECTS THE PRICE OF ITS BID. Danville elected to use alternative bid packages. California law allows California public agencies to use alternative bid packages in public contracts, which is not at odds with competitive bidding law or its purposes. Schram Constr., Inc. v. Regents of Univ. of California, 187 Cal. App. 4th 1040, 1060-61 (2010). In Additive Alternate Number 3 — Schedule of Bid Prices, MVP left Section SP (Addendum No. 2, Page 7 of 9) for "Clearing and Grubbing" work with an estimated quantity of 511 square feet completely blank for both the unit price and total price. Similarly, in Additive Alternate Number #4A, (Addendum No. 2, Page 9 of 9) MVP put $"0" both as a unit price and an item total price for "Remove / Delete PIP rubber surfacing at playground mound," totaling 200 square feet, and again, for "Remove planting and irrigation near the skate ramp to accommodate the boulders...." Hennigh Law Corporation Four Embarcadero, Suite 1400 San Francisco, CA 94111 700 Flower Street, Suite 1000 Los Angeles, CA 90017 ATTACHMENT H Town of Danville Attn: Rob Ewing June 21, 2024 Page 2 MVP's bid does not conform to the specifications and thus must be deemed non- responsive. The bid variance of MVP clearly affects the amount of the bid. This is not allowed because any variance in a bid that affects the amount of the bid is a consequential deviation that cannot be waived by Danville. Ghilotti Constr. Co. v. City of Richmond, 45 Cal. App. 4th 897, 904-905 (1996), Bay Cities Paving & Grading, Inc. v. City of San Leandro, 223 Cal. App. 4th 1181, 1188 (2014). In MVP's letter to Danville dated June 13, 2024, MVP has already stated its position on this issue, which is that the lowest responsive bidder is to be determined by the lowest base bid price. MVP's position is meritless and shows again its fundamental misunderstanding of competitive bidding law. Determination of which bidder is low is a completely different issue than determining whether a bid is responsive. Only responsive bids are considered on the issue of which bid is lowest. Non-responsive bids are thrown out before that determination is made. III. MVP GAVE FALSE CONTRACTORS LICENSE INFORMATION ON THE SUBCONTRACTOR LIST PAGES OF ITS BID. Another serious irregularity in MVP's bid appears on the third page of the Subcontractor List bid section. There, MVP lists a company called "Northern Cal Rec" and provides a "California State Contractor License No(s)" for that company of 686356. The license information is false. License 686356 belongs to a different company called "Progressive Design Playgrounds dba PDPLAY." Attached hereto as Exhibit A is the Contractors State License Board's license lookup report showing that no entity called Northern Cal Rec is allowed to use license 686356. IV. THE BETTER EXPLANATION FOR MVP'S BIZZARE DECISION TO LIST SO MANY "SUBCONTRACTORS" ON ITS SUBCONTRACTOR LIST IS THAT MVP IS PLANNING TO SELF PERFORM LESS THAN 30% OF THE WORK. Per Cal Trans Spec 3-507A "Amount of Work Subcontracted" of the standard specification, the prime contractor is required to perform at least 30 percent of work using the contractor's own organization unless a different percentage is specified in the special provisions. It appears from its "Subcontractor List" that MVP will only be performing 18 percent of the work to be completed. Other than its surveyor, every entity listed as a "subcontractor" by MVP has a Contractor's License issued by the Contractor's State License Board according to MVP authorizing them to perform work in the field. Why does MVP so vehemently, but incorrectly, argue that GradeTech needed to list mere suppliers as "subcontractors" in GradeTech's bid? The best explanation for MVP's vehemence is that MVP's real plan is to have more than 70 percent of the work performed by others in violation of the specifications, which renders MVP's bid non-responsive. Town of Danville Attn: Rob Ewing June 21, 2024 Page 3 Very truly yours, -7.42-472---__ Mathew R. Troughton, Esq. HENNIGH LAW CORPORATION cc: GradeTech Inc. (gradetinc(a�sbcglobal.net) MVP Construction LLC (mike@mvpcllc.com) Bob Russell (brussell@danville.ca.gov) illni CONTRACTORS STATE LICENSE BAR OContractor's License Detail for License # 686356 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations. ► CSLB complaint disclosure is restricted by law (B&P 7124.6) If this entity is subject to public complaint disclosure click on link that will appear below for more information. Click here for a definition of disclosable actions. ► Only construction related civil judgments reported to CSLB are disclosed (B&P 7071.17). ► Arbitrations are not listed unless the contractor fails to comply with the terms. ► Due to workload, there may be relevant information that has not yet been entered into the board's license database. Data current as of 6/19/2024 1:49:13 PM Business Information PROGRESSIVE DESIGN PLAYGROUNDS dba PDPLAY 2235 MEYERSAVE ESCONDIDO, CA 92029 Business Phone Number:(760) 597-5990 Entity Corporation Issue Date 03/31/1994 Reissue Date 11/13/1997 Expire Date 11/30/2025 License Status This license is current and active. All information below should be reviewed. Classifications ► B- GENERAL BUILDING ► D34- PREFABRICATED EQUIPMENT ► D12 - SYNTHETIC PRODUCTS Bonding Information Contractor's Bond This license filed a Contractor's Bond with AMERICAN CONTRACTORS INDEMNITY COMPANY. Bond Number: 266995 Bond Amount: $25,000 Effective Date: 01/01/2023 Contractor's Bond History Bond of Qualifying Individual The qualifying individual JOHN MONTAGUE OGDEN certified that he/she owns 10 percent or more of the voting stock/membership interest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 10/15/2008 BQI's Bond History Workers' Compensation This license has workers compensation insurance with the INSURANCE COMPANY OF THE WEST Policy Number:WSD505616704 Effective Date: 07/01/2023 Expire Date: 07/01/2024 Workers' Compensation History Back to Top Privacy Policy Accessibility Certification Miscellaneous Information ► 11/13/1997 - LICENSE REISSUED TO ANOTHER ENTITY ► Personnel listed on this license (current or disassociated) are listed on other licenses. Conditions of Use Copyright © 2024 State of California Accessibility Mike Vila From: Maroney Jr., Donald <Donald.Maroney@gcpat.com> Sent: Friday, February 24, 2023 7:10 AM To: Kyle Carhart; Mike Vila Subject: Re: City of Vallejo - F3 Marina Project Attachments: PROCOR 10 yr Fluid Applied Sample.pdf Non composite warranty, I misread the spec. Don Maroney Senior Technical Sales Advisor Specialty Building Materials San Francisco Bay Area / Hawaii ., gcp Oakland, CA (510)206-8115 qcpat.com PROUDLY PART SAINT-GOBAIN OF SAINT-GOBAIN From: Maroney Jr., Donald <Donald.Maroney@gcpat.com> Date: Friday, February 24, 2023 at 7:07 AM To: Kyle Carhart <kyle@roofwa.com>, Mike Vila <mike@mvpcllc.com> Subject: Re: City of Vallejo - F3 Marina Project Please see attached. Thanks Don Maroney Senior Technical Sales Advisor Specialty Building Materials San Francisco Bay Area / Hawaii gcp Oakland, CA (510)206-8115 qcpat.com _AnN llu ln_. PROUDLY PART SAINT GOBAIN OF SAINT-GOBAIN From: Kyle Carhart <kyle@roofwa.com> Date: Wednesday, February 22, 2023 at 9:26 AM To: Mike Vila <mike@mvpcllc.com>, Maroney Jr., Donald <Donald.Maroney@gcpat.com> Subject: [EXT] RE: City of Vallejo - F3 Marina Project Don, As Mike mentioned, the City of Vallejo is requesting the works regarding information for Procor Fluid Applied I attached the specs for your use if needed, as well as all the requested info below. I will put together the 3 similar projects. Please provide the following information as soon as you can as required by Technical Specifications, Division 07, Section 07 14 00, Fluid Applied Waterproofing: Y Your proposed waterproofing system is manufactured and marketed by a firm with a minimum of 20 years' experience in the production and sale of waterproofing. Y Name of the waterproofing manufacturer Y Name of the waterproofing installer Y Certification from the waterproofing manufacturer that the installer is a certified applicator. Y List of three projects the installer has contracted within the past five years of similar scope and complexity to this project. Y Documentation the installer will have adequate equipment and trained field personnel to successfully complete the project in a timely manner. Y Documentation the installer's credentials are approved by the waterproofing manufacturer. Y Documentation the installer can obtain a warranty from the waterproofing manufacturer. Kyle Carhart Project Manager / Estimator �.iGSr l rllfl :'4ti^i Uii1 1295 Norman Ave. Santa Clara, CA 95054 Office (650) 937-1299 Cell (209) 663-3171 www.roofwa.com From: Mike Vila <mike@mvpcllc.com> Sent: Wednesday, February 22, 2023 9:15 AM To: donald.maroney@gcpat.com; Kyle Carhart <kyle@roofwa.com> Subject: FW: City of Vallejo - F3 Marina Project Importance: High 2 Guys, See below to follow up on what the City of Vallejo has requested. Thanks, Mike Vila Owner/President M V P Construction LLC 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 2410 Saybrook Place Martinez, CA 94553 v P CONSTRUCTION LLC From: Mike Vila Sent: Tuesday, February 21, 2023 10:51 AM To: Dan Sequeira <Dan.Sequeira@cityofvallejo.net> Subject: RE: City of Vallejo - F3 Marina Project Hi Dan, Will get this info over to you shortly. Our waterproofing is Waterproofing Associates and they do use GCP Products such as the one called out in spec. More info to follow. Yes confirmed we are ready to start and complete the project immediately. Thanks, Mike Vila 3 Owner/President M V P Construction LLC 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 2410 Saybrook Place Martinez, CA 94553 P CONSTRUCTION LLC From: Dan Sequeira<Dan.Sequeira@cityofvallejo.net> Sent: Tuesday, February 21, 2023 10:11 AM To: Mike Vila <mike@mvpcllc.com> Subject: City of Vallejo - F3 Marina Project Hello Mike, We are still reviewing bids. Please provide the following information as soon as you can as required by Technical Specifications, Division 07, Section 07 14 00, Fluid Applied Waterproofing: Y Your proposed waterproofing system is manufactured and marketed by a firm with a minimum of 20 years' experience in the production and sale of waterproofing. Y Name of the waterproofing manufacturer Y Name of the waterproofing installer Y Certification from the waterproofing manufacturer that the installer is a certified applicator. Y List of three projects the installer has contracted within the past five years of similar scope and complexity to this project. Y Documentation the installer will have adequate equipment and trained field personnel to successfully complete the project in a timely manner. Y Documentation the installer's credentials are approved by the waterproofing manufacturer. Y Documentation the installer can obtain a warranty from the waterproofing manufacturer. Also, please confirm MVP has the equipment, labor, and time to start and complete the project immediately following execution of the contract. Daniel A. Sequeira, PE Assistant Public Works Director / City Engineer City of Vallejo 1 Public Works 4 (707) 648-5434 dan.sequeira@cityofvallejo.net 5 gcp applied technologies GRACE CONSTP UC1ION & ,ACKAGI G Donald Maroney Senior Technical Sales Advisor Structural Waterproofing & Air Barriers Grace Construction Products 510.206.8115 Memo Date: 2/24/23 To: Waterproofing Associates RE: City of Vallejo — F3 Marina Project To whom it may concern: 62 Whittemore Avenue Cambridge, Massachusetts 02140 USA GCPat.com GCP recognizes Waterproofing Associates as a trained/certified applicator for all GCP products and systems. This includes the Procor system specified on this project. They are eligible to provide any of the available system warranties. GCP has been manufacturing these products for 50 years. If you require any additional information or assistance with this project, please contact me at your convenience. Sincerely, Mike Vila From: Mike Vila Sent: Thursday, June 20, 2024 5:55 PM To: Sylvia Yang; rewing@danville.ca.gov Cc: GradeTech Inc; brussell@danville.ca.gov; Mathew Troughton; Sylvia Yang Subject: RE: Project. CIP B-560 & B-616: Diablo Vista Playground Reno & Multi -Sport Skate Park: Gradetech's Response to MVP's Bid Protest Attachments: Registrations.pdf; Diablo Vista Park.pdf Matthew, Your claiming that a surveyor, who performs work in the field on a DIR California Public Works project does not need to be listed and is not considered a subcontractor? When GradeTech contracts with them and they perform surveying and staking on the site for the Earthwork, Skatepark, Demo limits, grading and site concrete you still think they are not considered a subcontractor performing labor? You realize they have to report certified payroll for the labor they perform on a project. Per the Specifications, Special Provisions of the bidding documents, on Page 39 out of 213. Under 10.5 Construction Staking (Bid Item 5) -All construction staking shall be provided under the direction of either a professional land surveyor licensed by the State of California, or an Engineer qualified to perform land surveying. No one was listed and the bid form called for a listed licensed surveyor. attached your surveyors license number for your reference, you cannot "skate" around the licensing issue. The certified installer issue is a greater issue than you realize. It is not some made up thing as you allege. See the attached bid,. there is a reason why it states on the bid they are a certified installer. Here is another example. It is the same thing for a roofing manufacturer like Garland. Roofers needs to be certified with the manufacturer to install their products and to have the manufacturer provide a warranty at the end. Why are you thinking it is any different for a playground manufacturer. After all, our kids will be playing on that equipment and the City wants to ensure they are installed correctly to avoid any claims against them due to a contractor cutting corners and not being a certified installer and have a warranty provided. get it, your sour because we protested and pointed out deficiencies in your bid and on top of that our bid was much higher than yours. That's the difference between a complete, quality and responsive bid. I get it, not like I enjoy seeing a job go over budget, seems like that has been the case on all these jobs this year. Does that mean your bid is the right bid because of that fact alone, no I am sorry did you stop to think that one of the reasons why it is higher is because when you have the right qualified and certified contractors who can perform the work, there is a cost for it. Margins are tight already, not sure what you are implying. We certainly are not hiring a bunch of guys from home depot to work and learn on the job, otherwise the labor to do the work would be significantly cheaper. I hope that is not your intent on a public works project. I read the specifications, did you? Lastly you don't even address the bid shopping about the steel (rebar) and misc metal edging at the skatepark. If you had that covered with the bid from PJ then why are you soliciting the 2 skate park subs for bids. Your only proving the bid shopping when you already had a bid in your possession but didn't list the sub. Oh that's right, you didn't have to list PJ's rebar and sought bids from the skate park subs after they had already bid to you at bid time and leveraged your rebar bid you received already to see if you can get a better bid from CA Skate Park and Spohn Ranch. This was already confirmed with both subs. Yes they both confirmed that you called them after the bid looking for better pricing, your client Gradetech I should say. 1 can't believe you guys are even fighting me on this. You clearly violated the bidding procedures and your attorneys letter did not even address it on top of that. am sure your surety was alarmed at the spread of the bids. The only thing I was disappointed in was seeing another cheap public works contractor cutting corners then complaining about being bid protested. Well then put a proper bid together and list subs like I did. Mike Vila Owner/President M V P Construction LLC 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 428 N. Buchanan Circle #15 Pacheco, CA 94553 v P CONSTRUCTION LLC From: Mike Vila <mike@mvpcllc.com> Sent: Thursday, June 20, 2024 5:02 PM To: Sylvia Yang <sylvia.yang@hennighlaw.com>; rewing@danville.ca.gov Cc: GradeTech Inc <gradetinc@sbcglobal.net>; brussell@danville.ca.gov; Mathew Troughton <Mathew.Troughton@hennighlaw.com>; Sylvia Yang <sylvia.yang@hennighlaw.com> Subject: Re: Project. CIP B-560 & B-616: Diablo Vista Playground Reno & Multi -Sport Skate Park: Gradetech's Response to MVP's Bid Protest Also you did not address the bid shopping email? That was left unaddressed as the evidence speaks for itself. Thanks, Mike Vila 2 Owner/President M V P Construction LLC 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 428 N. Buchanan Circle #15 Pacheco, CA 94553 From: Mike Vila <mike@mvpcllc.com> Sent: Thursday, June 20, 2024 4:53:02 PM To: Sylvia Yang <sylvia.yang@hennighlaw.com>; rewing@danville.ca.gov <rewing@danville.ca.gov> Cc: GradeTech Inc <gradetinc@sbcglobal.net>; brussell@danville.ca.gov <brussell@danville.ca.gov>; Mathew Troughton <Mathew.Troughton@hennighlaw.com>; Sylvia Yang <sylvia.yang@hennighlaw.com> Subject: Re: Project. CIP B-560 & B-616: Diablo Vista Playground Reno & Multi -Sport Skate Park: Gradetech's Response to MVP's Bid Protest GradeTech already provided a response last week. A second one? To further clarify under quality assurance for the playground equipment it calls for the installer to be certified by the manufacturer in order for a warranty to be provided by the manufacturer. Landscape structure the manufacturer has already stated that GradeTech is not certified with them. How do they expect to provide a warranty by self performing. This was clearly called out on the specs, does GradeTech think they do not have to be certified. There is a clear difference in price because they cut corners and avoid using certified installers which has a greater cost as you can see. Otherwise you don't think I would have saved costs by self performing myself and ignoring the bid docs. Change the specs and don't complain to me about following the rules. Regarding the skate park, yes the skate park sub has to provide a submittal like all other subs. Did you think you can bid shop that work too? It's more than just shotcrete and rebar. Regarding the surveyor, yes they do have to be licensed with the CSLB. My listed surveyor would disagree with you and the bid form calls out for a surveyor. Must be listed regardless or have the actual license. Thanks, Mike Vila Owner/President M V P Construction LLC 3 925.586.1478 "Woman Business Enterprise" License #1047890 www.mvpcllc.com 428 N. Buchanan Circle #15 Pacheco, CA 94553 From: Sylvia Yang <sylvia.yang@hennighlaw.com> Sent: Thursday, June 20, 2024 4:34:36 PM To: rewing@danville.ca.gov <rewing@danville.ca.gov> Cc: GradeTech Inc <gradetinc@sbcglobal.net>; Mike Vila <mike@mvpcllc.com>; brussell@danville.ca.gov <brussell@danville.ca.gov>; Mathew Troughton <Mathew.Troughton@hennighlaw.com>; Sylvia Yang <sylvia.yang@hennighlaw.com> Subject: Project. CIP B-560 & B-616: Diablo Vista Playground Reno & Multi -Sport Skate Park: Gradetech's Response to MVP's Bid Protest Dear Mr. Ewing, On behalf of attorney Mathew Troughton, attached please find for your review Gradetech Inc.'s response letter to disappointed, second low bidder MVP Construction LLC's bid protest. Thank you. Best, Sylvia J. Yang Trial Paralegal Sylvia.Yang@hennighlaw.com H E N N IH SAN FRANCISCO & LOS ANGELES - 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111-4164 (415) 325-5855 - 700 Flower Street, Suite 1000 Los Angeles, CA 90017 (213) 277-7226 http://www.hennighlaw.com/ Chambers RANKED IN I USA S •� 2023 This communication, including any attachments, is confidential and may be protected by privilege. If you are not the intended recipient, any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or email, and permanently delete all copies, electronic or other, you may have. The foregoing applies even if this notice is embedded in a message that is forwarded or attached. 4 This communication, including any attachments, is confidential and may be protected by privilege. If you are not the intended recipient, any use, dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or email, and permanently delete all copies, electronic or other, you may have. The foregoing applies even if this notice is embedded in a message that is forwarded or attached. 5 CONSTRUCTION June 30, 2024 Delivered via Email: Attn: City Attorney / City Clerk / City Council Diablo Vista Playground Renovation & Multi Skate Park Contract Nos B-560 & 616 This letter serves as a formal request to remove Consent Item 6.8 from your July 2nd, 2024, Town Council Meeting agenda. I would like to provide further explanation and understanding of the applicable laws and codes required when submitting a complete and compliant public bid in California for public works construction. Key Points of Concern: 1. Bid Responsiveness: o Town Staff found both bids to be responsive. (see Consent Calendar Attachment) o Staff determined that GradeTech lacks the certification to perform the work but does not need to be certified at bid submission. (see Consent Calendar Attachment) All parties agree that GradeTech lacks the required certification as specified in the bid documents. Specifically, the project specifications call for the contractor installing the playground equipment to be "trained and approved by the manufacturer." This requirement is critical and directly impacts the ability to warranty the work. Warranty and Compliance Issues: GradeTech cannot provide a warranty for the playground installation because they do not have the manufacturer's certification to allow for such a warranty. This omission renders their bid non- responsive. As evidenced in a similar situation with the City of Vallejo last year (see attached example), a lack of certification at bid submission disqualified the non -certified bidder. Please contact Dan Sequeira, Assistant Public Works Director, at 707.648.5434 for more information. MVP listed a certified subcontractor for this work, adhering to strict rules, codes, and regulations required for playground installation. These standards include those set forth by the American Society for Testing and Materials (ASTM) and the Consumer Product Safety Commission (CPSC), among others. mvpcl lc.com 1 0: 925.586.1478 428 N. Buchanan Circle #15 Pacheco, CA 94553 License #1047890 Importance of Certification at Bid Submission: For a bid to be complete and compliant, especially one that includes a warranty, the contractor must hold the required certification at the time of bid submission. This ensures the contractor is qualified to perform the work and can meet all warranty and performance obligations. The key reasons for requiring certification at bid submission include: 1. Qualification Verification: Certification demonstrates that the contractor has the necessary expertise to perform the specific work required by the project. 2. Warranty and Liability: Holding the required certification ensures the contractor can provide the necessary warranty for the work, a crucial aspect of public works contracts. 3. Bid Responsiveness: A bid lacking the required certifications may be considered non-responsive, potentially leading to bid rejection. 4. Regulatory Compliance: Ensuring certification at bid submission maintains compliance with applicable regulations and standards set forth by the public agency or governing bodies. Specific Requirements for Playground Equipment Installers: The project specifications under section 116800 Play and Fitness Equipment and Structures, in the Special Provisions, under 11.8 Quality Assurance B. Installer Qualifications, state: "An entity that employs installers and supervisors who are trained and approved by the manufacturer." If GradeTech is not trained and approved at the time of bid, they cannot submit a responsible bid capable of warranting all the work. The Town of Danville must adhere to the basic rules of competitive bidding and conformance. A bid that does not meet all mandatory requirements of the bid documents cannot be accepted. Therefore, the bid submitted by GradeTech should be rejected as incomplete and non-responsive. Legal Precedent and Compliance: An agency is bound to follow the terms of the solicitation and may be ordered by writ of mandate to do so. (Pizar v. Department of Transportation, 144 Cal. App.3d 269, 272 (1983)). By law, the Town of Danville can award a contract only to a responsible contractor that submits a responsive bid. (Contract Code 20111) Violating this law opens the Town of Danville to complaints for not following California laws. In light of the points outlined above, MVP Construction LLC respectfully requests that the Town of Danville reject the bid submitted by GradeTech. MVP Construction LLC is the lowest responsible and responsive bidder, and awarding the contract to MVP Construction LLC is the proper course of action Sincerely, Michael Vila, Owner/President M V P Construction LLC