DISCUSSION
Staff solicited bids for this project pursuant to Municipal Code Section 2.50.100. Four (4) qualified bids were received at the City Clerk's office by 11:00 a.m. on May 11, 2022. The lowest qualified contractor was All American Asphalt, with a total bid of $4,798,930. However, the total bid price listed by All American Asphalt was written as $478,930.00 and written down in words in that same amount. R.J. Noble Company submitted a protest and appeal of the low bidder's bid due to the mistake in All American Asphalt's total bid price. Copies of R.J. Noble Appeals and All America Asphalt's responses are attached.
After reviewing R.J. Noble Company's protest and appeal, staff recommends that the Council let the contract to the second low bidder, R.J. Noble Company.
Public Contracts Code 5101(a) prohibits the City from changing a bid because of a bidder's mistake. Public Contracts Code 5101(a) provides that the City may instead relieve the bidder of the bid if the bidder meets the requirements of Public Contract Code 5103 by showing: (a) that a mistake was made, (b) the bidder notified the City within 5 working days of the mistake and specifying how the mistake occurred, (c) that the mistake made the bid materially different than what the bidder intended it to be, and (d) that the mistake was made in filling out the bid and not due to error in judgment or to carelessness in inspecting the site of the work, or in reading the plans or specifications.
Because All American Asphalt’s mistake in tabulating the total amount of the bid closely resembles the provisions of the foregoing statues pertaining to bid mistakes, it will be difficult to justify the waiver of the mistake, and the City must consider letting a contract to All American Asphalt in the amount of $478,930.00, which was quoted both in numbers and written out in letters in that amount. However, as recognized in All American Asphalt's response to the R.J. Noble Protest, letting the contract for $478,930.00 would be unconscionable and would be rendered unenforceable.
While the City reserved the right to waive irregularities in a bid, various court cases limit that right. Under case law, the City is permitted to waive irregularities only if the irregularity is insubstantial and does not materially affect the proposal. Whether an irregularity is substantial depends on whether it gives the bidder an advantage over other bidders and whether the irregularity affects the price. Here, the irregularity clearly and directly affects the bid’s price, and letting the contract at any amount other than the quoted $478,930.00 will constitute a correction to the bid by the City that gives All American Asphalt a clear advantage over the other bidders.
All American Asphalt suggests that the Bid Specifications allow the City to correct bids if unit prices and the total amount for any item are not in agreement. However, those provisions of the Bid Specifications apply to individual line item prices, not to the total bid price that is required to be calculated and listed in the Bid Form as the total contract price.
Staff therefore recommends that the City Council award the contract to R.J. Noble as the responsive second low bidder for the project in the amount of $4,971,340.00. This bid amount is within the current project budget. The licenses and references of the contractor have been reviewed and verified by staff, and all other documentation is in order.
The anticipated contract schedule is as follows:
Award Contract - June 14, 2022
Begin Construction (estimated) - July 5, 2022
Complete Construction (estimated) - January 24, 2023