17. Resp. contracting/Mary Ave Footbridge
CITY OF
CUPEIUINO
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM
11
AGENDA DATE March 6. 2007
SUBJECT AND ISSUE
Adoption of Resolution No. 07 - 0 3 q to make a revision to the City Policy on
Responsible Contracting providing certain exceptions for Contractors who submit a
formal bid for the construction of the Mary Avenue Bicycle Footbridge (Mary BFB).
BACKGROUND
On March 3, 2003 the Council considered a report on various labor compliance issues
with respect to the Phase II Library/Civic Center project.
On April 7, 2003 the Council adopted Resolution No. 03-070 to establish a City policy on
responsible contracting. The main intent of the policy was to ensure that the large Civic
Center / Library Phase II (Building and Plaza) project would be advertised for bids with
all of the appropriate responsible bidder provisions.
On August 16, 2004 the Council Adopted Resolution No. 04-385 revising, the policy on
responsible contracting providing for exceptions as to the qualifications of responsible
contractors so that the policy not inadvertently eliminate from competition those
contractors with minor workplace violations over the four year period prior to the bid
who would otherwise be qualified as required by state law and the City's Responsible
Contracting policy. This policy has been in effect without difficulty in the bidding process
since that time.
However, in preparing the bidding documents for the Mary Avenue Bicycle Footbridge
Project, staff has learned of a concern that could seriously jeopardize the City's ability to
obtain competitive bids from qualified contractors for this work. This concern arises from
the unique and particular nature of this project that is not common or. typical of most
municipal public works projects, and has been brought to staffs attention by Caltrans,
Swinerton PM, the city's contract construction manager, and by the city's outside
construction law firm, Wulfsberg Reese Colvig and Firstman.
The origin of this concern is largely due to the fact that the Mary Avenue BFB project,
although managed and funded locally is, for all intents and purposes, a Caltrans Highway
project. As such, and because of its unique and particular design spanning a major
interstate freeway route, it will only attract contractors with the experience and capacity to
handle Caltrans requirements and conditions. These are not typically contractors who
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would bid on city jobs. They tend to be larger, heavy construction firms that specialize in
this type of highway construction and are uniquely qualified for it. However, because of
their size and the many projects they have throughout the state, they tend to have a greater
exposure to minor workplace violations. Although most contractors of this size and
experience do not typically run afoul of prevailing wage regulations, they are subject to
minor complaints regarding safety and environmental regulations.
It is the current policy of the City of Cupertino "... to exclude as non-responsible any
bidder with outstanding convictions or enforcement agency findings regarding prevailing
wage, workplace safety or environmental laws and/or regulations giving rise to criminal
or civil penalties with the exception of minor violations with civil penalties of $500 or
less for each violation with a maximum of four such violations within four years prior to
the date of the bid opening."
Staff is being advised and cautioned by Caltrans and our Construction Management team
that this requirement could very well limit the bidding pool for this special project, or
worse, result in no qualified bidders at all.
In light of this situation, staff, in conjunction with Caltrans and the city's consultants
conducted a review of the current policy with the objective of making appropriate
recommendations to amend the policy to compensate for this unique situation on the
Mary BFB project.
DISCUSSION
There are two provisions in the Responsible Contracting Policy that affect an otherwise
qualified bidder from contracting with the City as follows.
Historical Evaluation Period. The duration of time, under which these violations are
incorporated into the policy, refers to a period preceding the bidding of the project within
which a contractor's conduct relating to workplace violations is evaluated. The adopted
policy now requires the inclusion of any violation that has occurred in the past four years
prior to the bidding of the contract.
Degree of Violation Severity. In consideration of any revision to the policy, it is well to
revisit the basic definition of responsible bidder since that formed the original basis for
development of the City's policy. A responsible bidder refers to the qualifications of a
contractor, specifically the contractor's reputation, and capacity to do the work. State Law
currently provides for the definition of a "responsible bidder" as a bidder ".... who has
demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and
experience to satisfactorily perform the public works contract." (Public Contract Code
Section 1103).
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In evaluating the two factors noted above, while staff had originally suggested a period of
two or three years for the evaluation, the period of time in terms of four years does not
seem excessive and no change is recommended.
However, the fact is that the current criteria to evaluate the severity or degree to which
violations are relevant to establish the "responsibility" of a particular bidder will, in all
likelihood, limit or even eliminate the pool of bidders who would be otherwise uniquely
qualified to successfully construct the Mary BFB. Staff believes, and Caltrans and the
consultants concur, that the threshold criteria should be revised to ensure, that an
otherwise qualified and reputable contractor, particularly in the case of a very good low
bid, is not unreasonably disqualified because of minor violations that are not
representative of the contractor's overall "trustworthiness.... quality, fitness, capacity and
experience, etc." to perform the work.
Staff would therefore recommend the following revision (noted in bold underlined italics
below) to the Responsible Contracting policy by amending paragraph 2 of the Resolution
No. 04-385 adopted August 16,2004.
"2. Consistent with the definition of "responsible bidder" described above,
it is the policy of the City of Cupertino to exclude as non-responsible any
bidder with outstanding convictions or enforcement agency findings
regarding prevailing wage, workplace safety or environmental laws and/or
regulations giving rise to criminal or civil penalties with the exception of
minor violations with civil penalties of $500 or less for each violation with
a maximum of four such violations within four years prior to the date of
the bid opening. " However, because of the unique and particular nature
of the Marv Avenue Bicvcle Pedestrian Footbrid!!e, Proiect No.------,
for contractors biddin!! on the Marv Avenue Bicvcle Pedestrian
Footbrid!!e, Proiect No ----the exception shall be broadened to exclude
minor violations with penalties of $50,000 (Fiftv thousand dollars) or
less, for each violation, with a maximum of four such violations within
four vears prior to the date of the bid open in!!. All other provisions in
this resolution shall continue to applv to all contractors.
Staff has prepared Resolution No. 07 - D .3 C) incorporating these revisions for the
Council's consideration and recommends its adoption and subsequent inclusion into all
future bid documents.
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ST AFF RECOMMENDATION
Adoption of resolution No. 07- o3~ making a reVlSlon to the City's Policy for
Responsible Contracting for Public Works Projects increasing the exceptions for
contractors bidding on the Mary Avenue Bicycle Footbridge.
Submitted by:
Approved for submission:
J: ~Ual7!;,.u't'J. U.d
Director of Public Works
~
David W. Knapp
City Manager
11-~
DRAFT
RESOLUTION NO. 07-039
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING THE POLICY FOR RESPONSIBLE CONTRACTING FOR PUBLIC
WORKS PROJECTS TO PROVIDE AN EXCEPTION TO CERTAIN
QUALIFICATIONS FOR CONTRACTORS WHO SUBMIT A BID FOR THE MARY
AVENUE BICYCLE FOOTBRIDGE
WHEREAS, the City of Cupertino, through its Capital Improvement Program contracts
for work on Public Works Projects as defined by the California Public Contracts Code; and
WHEREAS, the state law defines responsible contractor as one"... who has demonstrated
the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to
satisfactorily perform the public works contract."; and
WHEREAS, the City of Cupertino desires to ensure that it does business solely with
responsible contractors who abide by all applicable laws and regulations, including prevailing
wage requirements; and '
WHEREAS, the City of Cupertino desires to amend the policy as adopted on April 7,
2003 as Resolution 03-070, and amended on August 16, 2004 as Resolution 04-385, to provide
exceptions to qualifications for minor violations by contractors who would otherwise be
qualified under the policy,
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
adopts the following Revised Policy for Responsible Contracting for Public Works Projects:
1. California law, as well as good business practices, mandates that public works contracts
be awarded to the lowest responsible bidder. "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. This requirement
also includes but is not limited to, the maintaining of all proper licenses by the
contractor and its designated subcontractors, the maintaining of adequate insurance and
performance and payment bonds issued by insurance companies and sureties having an
established financial strength and acceptable commercial ratings, no prior history within
defined time limits of disqualifications or default terminations or convictions of public
statutes that would indicate the contractor is untrustworthy, and one that complies with
the California Labor Code regarding apprenticeship training.
2. Consistent with the definition of "responsible bidder" described above, it is the policy of
the City of Cupertino to exclude as non-responsible any bidder with outstanding
convictions or enforcement agency findings regarding prevailing wage, workplace
safety or environmental laws and/or regulations giving rise to criminal or civil penalties,
with the exception of minor violations with penalties of $50,000 or less for each
violation with a maximum of four such violations within four years prior to the date of
the bid opening.
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Resolution No. 07-039
2
3. It is also the policy of the City of Cupertino to exclude as non-responsible any bidder
who has, within four years prior to the date of the bid opening been guilty (with respect
to other public works projects) of unreasonable time delays, non-responsiveness to
warranty claims, material defaults or breaches of contract. To this end, included in the
bid documents for construction of public works projects shall be a contractor
questionnaire and statement of qualifications, which addresses these issues, as well as
other indices of past performance, which may include the assessment of liquidated
damages and other work quality factors.
4. California law requires that prevailing wages be paid on all public works projects and it
is the policy of the City of Cupertino to require complete compliance with the
applicable prevailing wage statutes and to require affirmative acknowledgement of this
requirement by all bidders.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this
6th day of March 2007, by the following vote:
V ote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
Mayor, City of Cupertino
City Clerk
[7-0
DRAFT
Jl. A A 11 u\ J /l -1J
I(YV(~~ :#- /7
RESOLUTION NO. O~..,...:...., \/'tli' B';: 'li~j l',
A RESOLUTION OF THE CITY COUNCIL OF T ' CIT; }~, C PE . '.' ~
AMENDING THE POLICY FOR RESPONSIBLE CONT" ,~U WORKS
PROJECTS TO PROVIDE AN EXCEPTION TO CERTAIN QUALIFICATIONS FOR
CONTRACTORS WHO SUBMIT A BID FOR THE MARY AVENUE BICYCLE
FOOTBRIDGE.
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I
WHEREAS, the City of Cupertino, through its Capital Improvement Program contracts
for work on Public Works Projects as defined by the California Public Contracts Code; and
WHEREAS, the state law defines responsible contractor as one". . . who has demonstrated
the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to
satisfactorily perform the public works contract."; and
WHEREAS, the City of Cupertino desires to ensure that it does business solely with
responsible contractors who abide by all applicable laws and regulations, including prevailing
wage requirements; and
WHEREAS. the Citv of Cuvertino desires to amend the volicv as adovted on Avril 7,
2003 as Resolution 03-070. and amended on AUflust 16.2004 as Resolution 04-385. to vrovide
excevtions to qualifications for minor violations bv contractors who would otherwise be
qualified under the volicv,
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
adopts the following Revised Policy for Responsible Contracting for Public Works Projects:
1. California law, as well as good business practices, mandates that public works contracts
be awarded to the lowest responsible bidder. "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. This requirement also
includes but is not limited to, the maintaining of all proper licenses by the contractor and
its designated subcontractors, the maintaining of adequate insurance and performance and
payment bonds issued by insurance companies and sureties having an established
financial strength and acceptable commercial ratings, no prior history within defined time
limits of disqualifications or default terminations or convictions of public statutes that
would indicate the contractor is untrustworthy, and one that complies with the California
Labor Code regarding apprenticeship training.
2. Consistent with the definition of "responsible bidder" described above, it is the policy of
the City of Cupertino to exclude as non-responsible any bidder with outstanding
convictions or enforcement agency findings regarding prevailing wage, workplace safety
or environmental laws and/or regulations giving rise to criminal or civil penalties with the
exception of minor violations with civil penalties of $500 or less for each violation with a
maximum of four such violations within four years prior to the date of the bid opening.
However, because of the unique and varticular nature of the Marv Avenue Bicvcle
Pedestrian Footbridfle for contractors biddinfl on the Marv Avenue Bicvcle Pedestrian
Footbridfle. the excevtion shall be broadened to exclude minor violations with venalties
of$50,000 (Fiftv thousand dollars) or less. for each violation, with a maximum offour
Resolution No. 07-039
2
such violations within four vears vrior to the date of the bid oveninf!. All other
vrovisions in this resolution shall continue to avolv to all contractors.
3. It is also the policy of the City of Cupertino to exclude as non-responsible any bidder
who has, within four years prior to the date ofthe bid opening been guilty (with respect to
other public works projects) of unreasonable time delays, non-responsiveness to warranty
claims, material defaults or breaches of contract. To this end, included in the bid
documents for construction of public works projects shall be a contractor questionnaire
and statement of qualifications, which addresses these issues, as well as other indices of
past performance, which may include the assessment of liquidated damages and other
work quality factors.
4. California law requires that prevailing wages be paid on all public works projects and it is
the policy of the City of Cupertino to require complete compliance with the applicable
prevailing wage statutes and to require affirmative acknowledgement of this requirement
by all bidders.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this
6th day of March 2007, by the following vote:
V ote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
City Clerk
Mayor, City of Cupertino