Construction Industry Force Account Council

Promoting Transparency Through Public Agency Compliance

Monthly Archives: December 2020

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Huntington Park Aquatic Center

$31 Million Dollar Project Will Bid!

Category:Around The State News

By Tony Morelli, Southwestern Regional Compliance Manager. -

For the last eight Months, CIFAC has been engaged in an on-going battle with the City of Huntington Park concerning the illegal contract award of the construction of their Aquatic Center and Related Amenities Project, located within Salt Lake Park.

The City awarded a Design-Build (DB) contract to an unregistered contractor during their August 6, 2019, City Council Meeting. Unfortunately, they overlooked the part about prequalification, advertising, establishing evaluation criteria, short-listing of proposed firms, and the entire bidding process as required by California’s Public Contract Code.Tony Morelli, Southwestern Regional Compliance Manager

How it all started

The demolition of the old concrete skate park and site preparation commenced in late 2019. In early May of 2020, an anonymous reporting party (RP) reached out to me with concerns about prior city actions that they felt may have taken advantage of its citizens. The RP suggested that perhaps CIFAC might want to take a closer look at this project.

The investigation begins

At the August 6, 2019, City Council meeting, the City Manager’s staff report indicated to the Council “Staff had met with contractors who are known to specialize in the aquatic construction field and determined that a viable option for project delivery would be to utilize a design-build project delivery method.” His report further stated, “In house engineers prepared a summary and determined that the cost estimate to be in the $31 million range”. Missing in this report was any mention of advertising or bidding for DB proposals or a bidder’s summary showing a best value/cost comparison. At this same meeting, the City Council approved a motion and awarded the $24 million dollar project to a contractor.

Since I was unable to locate the Department of Industrial Relations PWC 100 form, contractor registration, or any advertising or noticing regarding the bidding of this project online, I sent a California Public Records Act (CPRA) request on May 5th to obtain documents. I wanted to see a list of the DB firms who provided proposals, the City’s evaluation criteria and ranking process that was used, in addition to other compliance requirements. Per the California Public Records Act, the City had ten days to respond.

Let the games begin

Initially, I received no response or documents from my CPRA request. On June 1st, I received the first of many emails from the City’s contracted law firm responding on the City’s behalf. Their counsel advised of delays in responding to CIFACs request, citing that due to COVID-19 and the stay at home orders, the City had minimal staffing and indicated that they would respond to our requests within forty-five days. The following day, I informed the City and their counsel, that neither the Governor nor the State Legislature acted to limit or delay the rights provided by the CPRA. I demanded the City comply with its obligations under the CPRA and State Constitution to provide the seven requested documents or CIFAC would likely pursue legal action.

To pacify CIFAC’s request, on June 11th, the City’s counsel sent copies of three of the seven requested documents, but missing were the critical ones pertaining to; advertising, evaluation criteria and firms who submitted proposals. Their counsel advised that they would continue to roll-out documents hereafter and anticipated that all documents would be ready for CIFAC’s review by July 15, 2020. Of course, as suspected, on July 15th, I received a letter from their Counsel indicating, “There are no documents responsive to this (your) request.” That validated what I had suspected all along. The City didn’t have any documents because they failed to advertise or bid out the project in accordance with the law and instead awarded it to a contractor of their choice.

After consulting with legal counsel, CIFAC decided on a course of action to pursue this blatant violation of California’s bidding laws. After our counsel initiated communications and re-confirmed that the City had no further documents responsive to our CPRA request, CIFAC’s counsel advised the City that they had no legal justification in violating California’s Public Contract Code (PCC) sections 22160, 20162 and 22164 and requested the City to: Stop work on the project immediately, rescind the award to their contractor and competitively bid the project in accordance with the PCC. The City was further advised that if they did not rescind the award and competitively bid the project, the underlying contract would be void and unenforceable.

Construction progress was halted while counsel for both the City and CIFAC continued discussing the issue. The City’s counsel suggested that if the City considered rebidding, the City’s intent to rebid would not be admitting any fault, nor that the City’s actions should not be viewed that your client’s position is correct, etc. (A load of legal hogwash!) Through all of this, CIFAC and our counsel remained steadfast in our position to uphold California’s bidding laws, demanding that the City stop any further construction activity, and properly bid the project. The city agreed to halt construction while they review their options. During this time, the reporting party alerted me that work hours had apparently changed from daytime to nighttime! And lo and behold, work was underway in the wee hours of the night.

As a side note, it was found that the soil was contaminated at the site, equating to additional costs of approximately $2 million!

After exhausting all attempts to resolve the issue between both parties, CIFAC decided that enough was enough and to have its counsel pursue legal recourse through the courts. CIFAC’s counsel filed in California Superior Court, Los Angeles County, a Writ of Mandate pursuant to Code of Civil Procedure section 1085 to cure the failure and refusal of the City of Huntington Park to competitively bid the Aquatic Center project at Salt Lake Park. The City, after notification of our intent to file the writ and with the impending case against them, finally took appropriate action at its December 1, 2020, City Council meeting. The Council unanimously voted to bid the project.

Due to CIFAC’s actions and determination in seeking the only acceptable outcome, contractors will now have an opportunity to bid on the City’s $31 million dollar Aquatic Center project in a fair and transparent manner. To that end, CIFAC will continue to remain engaged and follow the City’s bidding process, to ensure that it remains that way!

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Bard Water District

Policy Change + CIFAC = More Jobs

Category:Around The State News

By Patricia (Patti) Rascon, Southern Regional Compliance Manager. -

“When the well’s dry, we know the worth of water.” – Benjamin Franklin

The same can be said for procurement and budgets, right? Southern Regional Compliance Manager Patti Rascon received a request to assist an Imperial Valley water agency established in 1927 that likely used a divining rod to find water. In this instance, it was her task to help them manage the vital resource.Bard Water District field

The opening to assist the District presented itself while Rascon was reviewing their June 2020 board of directors agenda. Under the heading of New Business, there was a discussion for district procurement/bidding for construction projects. Upon contacting district staff for more information on the item, Rascon learned that the new general manager was looking to put a policy in place for upcoming public works contracts.

Rascon knew this was the perfect opportunity for CIFAC to be a resource and increase opportunities for the construction industry and our members! The district's current bidding threshold was $35,000. Rascon discussed the benefits of competitive bidding which include transparency, an equal playing field for contractors, and a more competitive price for taxpayers.

After evaluating their options, the District ultimately decided to restructure its entire bidding process. The new bidding guidelines lowered the force account limit to $5,000 and allows for informal bidding up to $75,000, with formal bidding required above that amount. This will result in increased bid opportunities and more projects performed by contract!

In this case, runoff is a positive thing. CIFAC was allowed to educate an agency on best procurement practices, thus creating more competition with the bidding process. With due diligence, the district won't need a divining rod to find the tributary.

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Policy Change: The Gift That Keeps On Giving!

Category:Around The State News

By Justin Bochmann, Midstate Regional Compliance Manager. -

CIFAC Regional Compliance Managers work tirelessly to promote job opportunities for California public works contractors. This is done through many avenues, which include ensuring legal compliance, promoting government transparency, assisting industry partners, and guiding public agencies to do the right thing. Nevertheless, at the end of the day, the ultimate goal is to have an everlasting effect which will yield many years of future work being competitively bid. A surefire way to accomplish this is by influencing policy change.Lockford Water Tower

Late last year, Midstate Regional Compliance Manager Justin Bochmann began an investigation into the Lockeford Community Services District’s Community Memorial Park project. After a thorough review, it was determined that the District violated Public Contract Code § 20682.5 by failing to competitively bid the project. The District instead, negotiated nearly $900,000 worth of work with a private contractor, which grossly exceeded the District’s $25,000 bid threshold. The project was already complete by the time Bochmann caught wind of the issues, leaving CIFAC with few options, short of a lawsuit. After consulting with CIFAC’s legal counsel, it was determined that a lawsuit would not offer any return to industry contractors by way of job creation for this project, so Bochmann and Executive Director Tucker made a strategic decision to press the issue of competitively bidding all future work in excess of $25,000. Since the District had never passed a resolution creating their own procurement policy, CIFAC firmly insisted that this happen. After educating the District on the bid requirements and pressure from CIFAC, this was finally addressed and a policy was created and adopted by the Board of Directors.

Even though public agencies must abide by Public Contract Code requirements, regardless of whether they have adopted their own procurement policy, the act of passing this sort of resolution publicly offers another layer of protection for securing a level playing field and transparency. Not only are the Board of Directors and District staff held accountable for complying with general state laws, but by way of resolution, they must now adhere to their own rulebook. If they fail to do so, they may face heavier consequences within their own agency and by the taxpayers who vote them in. With more put on the line, public leaders are forced to walk a tighter rope which fares very well in reducing favoritism on public works construction projects. Please notify CIFAC if you notice an agency awarding a public works contract without competitive bidding.

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Scotts Valley Library image

Refresh a Three Year Old Bid?

Category:Around The State News

By Raquel White, Central Regional Compliance Manager. -

Most of us are familiar with the saying, "What is done in the dark will come to light." While searching through City Council agendas, I learned about the Scotts Valley Library Roof Replacement project. The project was not to exceed the amount of $195,000, and the staff report mentioned bids were received earlier but were delayed due to COVID-19.City of Scotts Valley logo

In early May 2020, City staff requested bidders to refresh their bids to reflect current pricing. The language was concerning, allowing bidders to update their bids could provide an unfair advantage to the potential low bidder.

Due to the City's lack of transparency, I found myself asking these questions; when the project was initially bid, how old were the bids, how was the project advertised, how many proposals were received, and how did the City notify bidders to refresh their bids to reflect current pricing. I quickly launched an investigation and searched the City's website and trade journals for signs of advertisement, but was unable to find any information.

On May 26, 2020, I emailed the Public Works Director my questions and concerns but received no response. I then sent a Public Records Act request, received no response, followed up with a demand letter, and finally received a reply explaining that due to the pandemic, response times are longer, and they are in the process of compiling the requested information.

The responsive documents showed that the project initially bid in 2017 and it appeared that the project was improperly advertised. After expressing my concerns about the process and suggesting that the project be rebid, the City followed suit and rebid the project using formal bidding procedures. The project was advertised on Ebidboard, Dodge Data & Analytics, the Builder's Exchange of Santa Clara, the Central Cal Builders Association, and the Santa Cruz Sentinel on June 20, 27, and July 4, 2020, and awarded to the lowest responsible bidder for $339,092. CIFAC's persistence forced the City to be transparent and compliant by advertising, and competitively rebidding the project using formal bidding procedures, and ultimately awarding to the lowest responsible bidder.

I may never know why the City of Scotts Valley requested bidders to refresh bids that were three years old rather than rebidding the entire project. I do know that even during the COVID-19 pandemic, CIFAC Regional Compliance Managers are continually monitoring agencies to ensure they remain compliant, transparent, and fair. Everything done in the dark will be brought to light.

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Horsethief Canyon Park sign

CIFAC Pulls Back The Reigns On San Dimas

Category:Around The State News

By Tony Morelli,  Southwestern Regional Compliance Manager. -

If you work in the compliance field, you know more than anyone how difficult it can be to rally up the posse and get them into compliance. There are times, however, when it is just easy and you don’t even have to pull your gun out of its holster.

This is a story of San Dimas, where not so long ago, they hired a contractor to repair and improve decomposed granite trails at Via Verde Park in 2019. Fast forward to mid-2020, the trails at Horsethief Canyon Park also need repairs. The trails surface consists of decomposed granite and native soil and over time the trails surface had eroded making the pathway dangerous. City staff wanted to utilize StaLok decomposed granite for this project, due to the previous success the City had the prior year at Via Verde Park.Cowboy image

City staff contacts the same contractor who performed the work at Via Verde Park, to discuss performing that same work for their new project at Horsethief Canyon Park. The discussion went so well that the contractor even agreed to do the work for the same price as was quoted in 2019.

City staff placed the project on the City Council’s meeting agenda, seeking approval to award the contract for the Horsethief Parks Access Trail-Pathway project for $112,000 to the same contractor.

In reviewing the agenda item and staff report, I became suspicious when I did not see any mention of other bidders or the phrase “lowest responsible bidder”. In looking closer, I noticed that the staff conducted an informal request for bids (RFB) back in 2019 for the Via Verde Project and was referencing that, but there was no mention of a specific RFB for the current project.

I reached out to the City’s Director of Parks and Recreation and asked if they conducted a separate bid solicitation for the Horsethief Park project, and if so, would they please provide a copy of the noticing for the project. Additionally, I asked the City to please pull this item from their current Council agenda until this issue could be resolved.

The next morning I received the following email: “Good morning Tony, I have requested that the City Clerk pull the item from tonight’s council agenda. We will be posting the project on Planet Bids in the next couple of weeks, and return to the City Council at that time. Again thank you for bringing it to our attention, Thanks, HK”

This is one of those rare times, when I can put my feet up and pull my hat down over my eyes knowing that a level playing field is on the horizon.

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Watson Watchdog

CIFAC: Your Public Agency Watchdog

Category:Around The State News
By Michelle Pickens, Executive Director. -

For over forty years, the Construction Industry Force Account Council (CIFAC) has led the way in preventing public agencies from using force account/public agency crews to perform construction work. As the defender of the Public Contract Code and in an effort to maintain the integrity of the competitive bidding process, our dedication to compliance is steadfast. Through support from our partner contractors, associations, and unions, we are able to monitor, investigate, and file complaints against agencies who violate the PCC provisions.

Public contracting laws were created to ensure a uniform bid process, to ensure all qualified bidders have the opportunity to submit bids on projects, to eliminate favoritism, fraud, and corruption in the awarding of contracts, and to stimulate advantageous project prices by way of competition.

The Code outlines force account limits for agencies, where work under the limit may be performed by the agency or maybe completed by negotiated contract. These limits were established so that agencies can perform minor maintenance and repair work. Above those limits, most public projects must be competitively bid in a fair, transparent, and objective manner and performed by licensed and insured contractors with the expertise to perform the work.

So as a contractor, if you were denied the opportunity to submit a bid on a project that you knew you had the skills and licensing to complete, how would that make you feel? Alternatively, if you knew that an agency only used their “preferred” contractor on all their projects with no bidding, would that be unfair? Or, if unlicensed, often inexperienced crews, such as force account, were performing all their own projects rather than contracting out, I’m sure that would be frustrating.  These are just a few examples of what we investigate, all with the intention of increasing job opportunities for you.

CIFAC’s job is to act as the compliance organization for the California Public Contract Code. There is no state agency that performs this oversight. Our “watch-dog” presence is also a deterrent that keeps local government officials from crossing the line into non-compliance.

In an effort to provide industry partners with an easier and faster way to notify us about agency compliance issues, CIFAC developed the first of its kind mobile reporting app, compatible with Apple iPhones, tablets, and Android devices.  KwikCompli allows for faster communications between the reporting party and CIFAC’s Regional Compliance Managers. It also provides the ability to pinpoint the job site via GPS, take, upload, and send photographs. Most importantly, there is total anonymity for the app user. The more information we receive from the sender on the spot, the faster we can make a determination whether the public agency is non-compliant.

Help us help you… If you see public projects being performed by public agencies or observe other contracting issues that you believe may be improper, contact CIFAC at 1-800-755-3354 or call your local compliance managers, whose contact information is available on our informative website. We welcome any questions and potential project leads.