REPORT TO THE CITY COUNCIL
October 29, 2015
FROM: SCOTT L. MOZIER, PE, Director
Public Works Department
THROUGH: ROBERT N. ANDERSEN, PE, Assistant Director
Public Works Department, Construction Management Division
PHILLIP TARVIN, Construction Manager
Public Works Department, Construction Management Division
BY: BILL HERR, Assistant Construction Manager
Public Works Department, Construction Management Division
SUBJECT
Title
Approve a Substitution of a Listed Subcontractor, Delta Grinding Co. for east-bound Jensen Avenue Overlay between Chestnut and Willow Avenues - Project PW00629 (Council District 5)
Body
RECOMMENDATION
It is recommended that the City Council approve the request from A.S. Dezign, Inc. to substitute Delta Grinding with J. Mack Enterprises, Inc. for the asphalt grinding work for the East-Bound Jensen Avenue Overlay located in District 5.
EXECUTIVE SUMMARY
A.S. Dezign, Inc., the General Contractor who was awarded the referenced project has requested to substitute Delta Grinding, Co., who is listed in the bid documents as the asphalt grinding subcontractor. In accordance with the bid documents, A.S. Dezign, Inc. listed Delta Grinding, Co. for the asphalt grinding portion of the project because the work exceeds one-half of one percent of the total contract amount. A.S. Dezign, Inc. notified the City by letter dated August 25, 2015, that their asphalt grinding subcontractor Delta Grinding, Co. fails or refuses to perform his work and is unable to mobilize on the jobsite due to scheduling & personal issues. A.S. Dezign, Inc. is requesting to be allowed to substitute Delta Grinding, Co. with J. Mack Enterprises, Inc. for the asphalt grinding portion of the project. This action requires Council approval because Public Contract Code Section 4107 requires consent of the awarding authority to be request by a prime contractor for a substitution of a subcontractor.
BACKGROUND
On June 11, 2015, a contract was issued in the amount of $208,403 to A.S. Dezign, Inc. for the East-Bound Jensen Avenue Overlay between Chestnut and Willow Avenues Project; the Notice to Proceed was issued August 19, 2015.
In the original proposal. Delta Grinding, Co. of Antioch, CA was listed as the subcontractor for the asphalt grinding work with the contract and on August 25, 2015, A.S. Dezign, Inc. provided the City a written request to substitute the listed subcontractor with J. Mack Enterprises, Inc., since the listed subcontractor would not execute a contract under Public Contract Code 4107 (a) (3).
In accordance with Section 4107 of the Public Contracts Code, a Prime Contractor may substitute a listed Subcontractor, with the consent of the awarding authority, when the listed subcontractor has refused to execute a written contract
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
A.S. Dezign, Inc. has requested that they be allowed to substitute Delta Grinding, Co. with J. Mack Enterprises, Inc. to perform the asphalt grinding work in place of Delta Grinding, Inc., by letter dated August 25, 2015. Section 4107 of the Public Contract Code allows the prime contractor to substitute listed subcontractor with prior consent from the awarding authority.
In accordance with provisions of the Public Contract Code, the City has notified Delta Grinding Co. of the proposed substitution by USPS certified mail which was delivered on August 31, 2015. Delta Grinding, Co., did not timely provide written objections to the City within five working days of receipt of the notification ending at 5:00 pm on September 7, 2015. In accordance with Public Contract Code 4107 the failure to provide timely written objections constitutes the listed subcontractor’s consent 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.
The replacement of the subcontractor for the asphalt grinding portion of the contract will not increase the cost of the project.
This project does contain an Underutilized Disadvantaged Business Enterprise (UDBE) requirement however this substitution does not impact the UBDE commitments and will not affect the UDBE status of the contract.
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 changes in 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:
Request for Substitution