REPORT TO THE CITY COUNCIL
November 2, 2017
FROM: SCOTT L. MOZIER, PE, Director
Public Works Department
BY: ROBERT N. ANDERSEN, PE, Assistant Director
Public Works Department
BILL HERR, Construction Manager
Public Works Department, Construction Management Division
SUBJECT
Title
Approve a substitution of a listed Subcontractor DSA, Inc., for the Frank H. Ball Swimming Pool Renovation Project ID PC00150 (Council District 3)
Body
RECOMMENDATION
It is recommended that the City Council approve the request from Davis Moreno Construction, Inc. (DMC) to substitute DSA Inc., and utilize Western Water Features, Inc., for the swimming pool portion of this project.
EXECUTIVE SUMMARY
DMC the General Contractor who was awarded the referenced project, has requested to substitute DSA, Inc., who is listed in the bid documents as performing the concrete and swimming pool work portion. In accordance with the bid documents DMC listed DSA, Inc., for the concrete and swimming pool work portion of the project because the work exceeds one-half of one percent of the total contract amount. DMC notified the City by a letter dated August 29, 2017, that their Subcontractor, DSA Inc., after having a reasonable opportunity to do so, has failed or refused to execute a written subcontract. DMC is asking that they be allowed to use Western Water Features Inc., to perform the swimming pool work portion and self-perform the concrete work portion of the project. This action requires Council approval because Public Contract Code Section 4107 requires consent of the awarding authority to a request by a prime contractor for a substitution of a subcontractor.
BACKGROUND
On April 27, 2017, a contract was awarded in the amount of $519,799 to DMC for the Frank H. Ball Swimming Pool Renovation project; the Notice to Proceed has been issued with a start date of September 5, 2017.
In the original proposal DSA, Inc., of Fresno, California, was listed as the subcontractor for the concrete and swimming pool portion of the contract. On September 6, 2017, DMC provided the City a written request to substitute the listed Subcontractor, since the listed Subcontractor has refused to perform his or her subcontract under Public Contract Code Section 4107(a) (1).
In accordance with Section 4107 of the Public Contract Code, a Prime Contractor may substitute a listed Subcontractor, with the consent of the awarding authority, when the listed subcontractor has refused to perform his or her subcontract as set forth in Section 4107.
The Subletting and Subcontracting Fair Practice Act requires the Prime Contractor to secure the permission of the awarding agency before substituting a non-listed subcontractor for a listed subcontractor in order to protect the public and subcontractors from bid shopping and bid peddling. (Southern California Acoustics Co., Inc. v. C.V. Holder, Inc. (1969), 71 Cal.2d 719,726
DMC has requested that they be allowed to substitute Western Water Features to perform the swimming pool subcontract work in place of DSA, Inc., and self-perform the concrete work by a letter dated August 29, 2017, but received on September 6, 2017. Section 4107 of the Public Contract Code allows the Prime Contractor to substitute listed Subcontractors with prior consent from the awarding authority.
In accordance with provisions of the Public Contract Code, the City has notified DSA, Inc., of the proposed substitution by certified mail delivered on September 13, 2017. DSA, Inc., did not provide written objections to the substitution. The City Attorney’s Office finds the proposed substitution of subcontractor to be legal and proper if Council consents to the substitution. In accordance with Section 4107 the failure to file these written objections within five working days of receipt of that notification ending at 5 p.m. on September 20, 2017 constitutes the listed Subcontractor’s consent to the substitution. The City has not received an objection in accordance with Public Contract Code 4107.
The replacement of the Subcontractor for the swimming pool and concrete portion of the contract will not increase the cost of the project.
This substitution does not affect the Disadvantaged Business Enterprise goal because DSA, Inc., is not a certified DBE.
ENVIRONMENTAL FINDINGS
This is not a project for the purposes of CEQA pursuant to CEQA guidelines section 15378(b)(5), as it is an administrative action that will not result in direct or indirect changers to the environment.
LOCAL PREFERENCE
Local Preference was not considered because this action does not include a bid or an award of a City construction contract.
FISCAL IMPACT
There will be no impact to the General Fund or the project budget by this substitution.
Attachment:
Contractor’s Request for Substitution Letter