REPORT TO THE CITY COUNCIL
March 26, 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 for the Universally Accessible Park Project PC00066 (Council District 1)
Body
RECOMMENDATION
Staff recommends that City Council approve a request from Lewis C. Nelson and Sons, Inc. of Selma, CA ("LCN"), to substitute G.A. Garcia Construction Inc. ("GAGC"), for Robyn Construction Inc. of Selma, CA ("Robyn"), to complete the rough carpentry work on the Universally Accessible Park located in District 1.
EXECUTIVE SUMMARY
LCN, the General Contractor awarded the Universally Accessible Park project, requests approval to select a substitute for Robyn, the subcontractor as identified in the bid documents to complete rough carpentry tasks. LCN was required to list Robyn in the bid documents because rough carpentry constitutes more than one-half of one percent of the total contract amount. LCN notified the City by letter dated January 22, 2015, that Robyn has indicated by notarized letter that it is unable to perform the work per the Subcontract Agreement. LCN now requests to subcontract with GAGC, to complete the rough carpentry portion of the project. This action requires Council approval because Public Contract Code ("PCC") § 4107 requires approval of the awarding authority for a prime contractor to substitute a subcontractor.
BACKGROUND
On April 10, 2014, LCN contracted with the City in the amount of $7,819,000 for construction of the Universally Accessible Park. The Notice to Proceed was issued June 16, 2014. In LCN's original proposal, Robyn is listed as the subcontractor for the rough carpentry on the contract. On January 22, 2015, LCN provided the City a written request to substitute the listed subcontractor because Robyn would not execute a contract under PCC § 4107 (a) (3).
PCC § 4107 specifies that a prime contractor may substitute a listed subcontractor, with the consent of the awarding authority, when the listed subcontractor fails or refuses to perform its subcontract.
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.)
LNC requests authorization to subcontract with GAGC for rough carpentry work in place of Robyn, pursuant to PCC § 4107. Pursuant to the PCC, City notified Robyn of the proposed substitution by certified mail delivered February 2, 2015. Robyn did not timely provide a written objection to the City (within five working days of receipt of the notification, ending at 5:00 P.M. on February 9, 2015). Per PCC § 4107, Robyn's lack of response indicates consent to the substitution. The City Attorney's Office has reviewed and approved the substitution.
This project does not contain a Disadvantaged Business Enterprise ("DBE") requirement and therefore will not affect the DBE status of the contract.
ENVIRONMENTAL FINDINGS
This is not a "project" for the purposes of CEQA pursuant to CEQA Guidelines §15378(b)(5), as it is an administrative action that will not result in direct or indirect physical changes to the environment.
LOCAL PREFERENCE
Local preference was not considered because the substitution of subcontractor does not include a bid or award of a construction or services contract.
FISCAL IMPACT
Replacing the subcontractor for the rough carpentry portion of the contract will not increase the cost of the project. There will be no impact to the General Fund or the project budget by this substitution.
Attachment: Lewis C. Nelson Substitution Request