HomeMy WebLinkAboutPW18-294 - Change Order - #1 - Scarsella Bros, Inc. - East Valley Highway Preservation - Replace Section 1-07.11 - 09/13/2018 (ecoc rds
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Scarsella Brothers Inc.
Vendor Number:
JD Edwards Number
Contract Number: PWIS-294 -001-
This is assigned by City Clerk's Office
Project Name: East Valley Highway Preservation
Description: ❑ Interlocal Agreement ® Change Order ❑ Amendment ❑ Contract
❑ Other:
Contract Effective Date: 7/18/2018 Termination Date: 60 working Days
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: Garrett Inouye Department: PW Engineering
Contract Amount: $2, 247843._75
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Approval Authority: (CIRCLE ONE) Department Directo Mayor City Council
Detail: (i.e. address, location, parcel number, tax id, etc.):
Change Order #1
.......
As of 08/27/14
,
ENT
IN ,3 Nv,1,.
CHANGE ORDER NO. # 1
NAME OF CONTRACTOR: Scarsella Bros.,Inc. ("Contractor")
CONTRACT NAME & PROJECT NUMBER: East Valley Hi hwsy Preservation
ORIGINAL CONTRACT DATE: 'July 17, 2018
This Change Order amends the above-referenced contract; all other provisions of the
contract that are not inconsistent with this Change Order shall remain in effect. For valuable
consideration and by mutual consent of the parties, the project contract is modified as follows:
1. Section I of the Agreement, entitled "Description of Work," is hereby modified to add
additional work or revise existing work as follows:
In addition to work required under the original Agreement and any prior
Amendments, Contractor shall provide all labor, materials, and
equipment necessary to:
This Change makes the following revisions to the Contract Documents:
Delete Section 1-07.11 from the Special Provisions, titled
Disadvantaged Business Enterprise Participation and dated June 1,
2017.
Insert the attached Section 1-07.11 to the Special Provisions. The
Section is titled Disadvantaged Business Enterprise Participation, and is
dated April 3, 2018.
This Change involves all Condition of Award UDBE Subcontractors for
the project. This is an administrative no cost Change and does not
impact the dollar amount of project's UDBE goal.
2. The contract amount and time for performance provisions of Section II "Time of
Completion," and Section III, "Compensation," are hereby modified as follows:
_._ ..
Original Contract Sum, $2,247,843.75
(including applicable alternates and
WSST)
Net Change by Previous Change Orders $0.00
(incl. applicable WSST)
Current Contract Amount $2,247,843.75
(incl. Previous Change Orders)
Current Change Order $0.00
.._...................................... _ ..
Applicable WSST Tax on this Change $0.00
Order
Revised Contract Sum $2,247,843.75
CHANGE ORDER - 1 OF 3
Original Time for Completion 60 working days
(insert date)
Revised Time for Completion under 0
prior Change Orders
(insert date)
.............................. _.. ........
Days Required (t) for this Change Order 0 calendar days
Revised Time for Completion 60 working days
(insert date)
In accordance with Sections 1-04.4 and 1-04.5 of the Kent and WSDOT Standard
Specifications, and Section VII of the Agreement, the Contractor accepts all requirements of this
Change Order by signing below. Also, pursuant to the above-referenced contract, Contractor
agrees to waive any protest it may have regarding this Change Order and acknowledges and
accepts that this Change Order constitutes final settlement of all claims of any kind or nature
arising from or connected with any work either covered or affected by this Change Order, including,
without limitation, claims related to contract time, contract acceleration, onsite or home office
overhead, or lost profits. This Change Order, unless otherwise provided, does not relieve the
Contractor from strict compliance with the guarantee and warranty provisions of the original
contract, particularly those pertaining to substantial completion date.
All acts consistent with the authority of the Agreement, previous Change Orders (if any),
and this Change Order, prior to the effective date of this Change Order, are hereby ratified and
affirmed, and the terms of the Agreement, previous Change Orders (if any), and this Change Order
shall be deemed to have applied.
The parties whose names appear below swear under penalty of perjury that they are
authorized to enter into this contract modification, which is binding on the parties of this contract.
3. The Contractor will adjust the amount of its performance bond (if any) for this project
to be consistent with the revised contract sum shown in section 2, above.
IN WITNESS, the parties below have executed this Agreement, which will
become effective on the last date written be ow.
CONTRACTO
R
-., ✓ A' wi OF KENT:
By: ,, m By: _
Ra. r (S1 lature)
Print Name: Zr ! LG Print Name: Timothv J. LaPorte. P.E.
Its Its Public Works Director
(title) title
DATE: r., G� DATE:— X r .!
CHANGE ORDER - 2 OF 3
APPROVED AS TO FORM:
(applicable if Mayor's signature required)
Kent Law Department
❑i this held,you may emir the e(ectwmc fi[epath where the contact has been saved]
CHANGE ORDER - 3 OF 3
,r+ FILE NO: 200.2
KENT
CHANGE ORDER WORKSHEET NO. 001
Construction Management Division - Public Works
Project: East Valley Highway Preservation Project No.: 17-3003.2
S. 1801" St. to S. 196th St
Project Engineer: Cameron Bloomer, PE Fed-Aid No.: STPUL-1073 (005)
Owners Rep: KBA, Inc Contractor:-mm Scarsella Bros. Inc. mm
Date: 8/7/2018
I. PROPOSED CHANGE
This Change makes the following revisions to the Contract Documents:
Delete Section 1-07.11 from the Special Provisions, titled Disadvantaged Business Enterprise
Participation and dated June 1, 2017.
Insert the attached Section 1-07.11 to the Special Provisions. The Section is titled
Disadvantaged Business Enterprise Participation, and is dated April 3, 2018.
This Change involves all Condition of Award UDBE Subcontractors for the project. This is an
administrative no cost Change and does not impact the dollar amount of project's UDBE goal.
II. REASON AND BACKGROUND FOR CHANGE
An outdated WSDOT GSP for Section 1-07.11 was used during the bidding of the project. It was
noticed after award and this change is replacing the outdated section with the current one. The
new section changes the DBE goal to a UDBE goal and modifies some reporting requirements,.
All three COA DBE subcontractors noted in the low bidder's proposal are also listed as UDBE
subcontractors by Washington State's Office of Minority & Women's Business Enterprises
website.
This change is administrative in nature and does not impact the cost or time of completion.
III. METHOD OF PAYMENT
NEW PAY ITEM(S) Z Not Applicable
Change Order No. - FOR ACCOUNTING USE ONLY
..._ ,_._m. - ...�.____... ---- .....
__
Sch. No. Item Description Total Est ' oty this '.. Unit --Unit Price Total Estimated Cost of
Oty J PE Item
1 REV. DATE.
4/01/10
IT FILE NO: 200.2
_._...
Independent Estimate Attached ® C ,¢5Y ATE9M Q, Payment to be made �'. PAY THIS PAY ESTIMATE .
- REQUIRED at a later date upon cornpletion of work
Material Submittals Reouired - CC,. Constructio-r na or New Sub Regrd? No
DELETE EXISTING PAY ITEMS} per 1-i Not Applicable
Change Order No. - FOR ACCOUNTING USE ONLY
_ .._.. — .... .-.-.-_. ._....----- _
Sch No B.[. No. Item Description City Unit Unit Price Cost of Item
_ .._._. _.., _.__......__..._.._
. Independent Estimate Attached REQUIRED ...........
INCREASE/DECREASE TO EXISTING PAY ITEM(S) Z Not Applicable
Change Order No. - FOR ACCOUNTING USE ONLY
Sch. No. B.I. No. Item Description Oty Unit Unit Price Cost of Item
�.. ..�.�...m_.....___...:._......
Independent Estimate Attached - REQUIRED '� ._.._.....__.._ �
TOTAL ESTIMATED COST OF CHANGE ORDER
*Total of the Cost of Item Columns
--------------------
THIS PAY ESTIMATE 0
IV. WORKING DAYS
Original Contract 60 Due This Change Order* 0 Previous Total 60
DATE: _. ..,..DATE: _., ........ ......
* nation/jUstiff " This Change Order is administrative in nature and does not impact the project's critical
path. No days are being added or deleted with this change order.
TOTAL WORKING DAYS* 60
*This Change Order + Previous Total
All work, materials and measurements to be in accordance with the Standard Specifications
and Contract Special Provisions for the type of work described.
Prepared By: Date:
Construction Supervisor: ✓' .-,, c zls Date: 9z/zff_
Construction Manager: ' e Date: t
2 REV. DATE:
4/01/10
I (April3, 2018)
2 Disadvantaged Business Enterprise Participation
3 The Disadvantaged Business Enterprise (DBE) requirements of 49 CFR Part 26 and
4 USDOT's official interpretations (i.e., Questions & Answers) apply to this Contract.
5 Demonstrating compliance with these Specifications is a Condition of Award (COA) of
6 this Contract. Failure to comply with the requirements of this Specification may result in
7 your Bid being found to be nonresponsive resulting in rejection or other sanctions as
B provided by Contract.
9
10 DBE Abbreviations and Definitions
11 Broker—A business firm that or a bona fide service, such as
12 professional, technical, consultant or managerial services and assistance in
13 the procurement of essential personnel, facilities, equipment, materials, or
14 supplies required for the performance of the Contract, or, personsicompanies
15 who arrange or expedite transactions.
16
17 Certified Business Description — Specific descriptions of work the DBE is
13 certified to perform, as identified in the Certified Firm Directory, under the
19 Vendor Information page.
20
21 Certified Firm Directory—A database of all Minority, Women, and
22 Disadvantaged Business Enterprises, including those identified as a UDBE,
23 currently certified by Washington State. The on-line Directory is available to
24 Contractors for their use in identifying and soliciting interest from DBE firms.
25 The database is located under the Firm Certification section of the Diversity
26 Management and Compliance System web page at.
27 https://omwbe.diversitycompliance.com.
23
29 Commercially Useful Function (CUF) —49 CFR 26.55(c)(1) defines
30 commercially useful function as: "A DBE performs a commercially useful
31 function when it is responsible for execution of the work of the contract and is
32 carrying out its responsibilities by actually performing, managing, and
33 supervising the work involved. To perform a commercially useful function, the
34 DBE must also be responsible, will? respect to materials and supplies used on
35 the contract, for negotiating price, determining quality and quantity, ordering
36 the material, and installing (where applicable) and paying far the material itself.
;37 To determine whether a DBE is performing a commercially useful function, you
38 must evaluate the amount of work subcontracted, industry practices, whether
39 the amount the firm is to be paid under the contract is commensurate with the
40 work it is actually performing and the DBE credit claimed for its performance of
41 the work, and other relevant factors."
42
43 Contract— For this Special Provision only, this definition supplements Section
44 1-01.3. 49 CFR 26.5 defines contract as. "_., a legally binding relationship
45 obligating a seller to furnish supplies or services (including, but not limited to,
46 construction and professional services) and the buyer to pay for them. For
47 purposes of this part, a lease is considered to be a contract."
48
49 Disadvantaged Business Enterprise (DBE) — A business firm certified by the
0 Washington State Office of Minority and Women's Business Enterprises, as
51 meeting the criteria outlined in 49 CFR 26 regarding DBE certification. A
Underutilized Disadvantaged Business Enterprise (UDBE) firm is a subset of
2 DBE.
3
4 Force Account Work —Work measured and paid in accordance with Section
5 1-09.6.
6
7 Good Faith Efforts — Efforts to achieve the UDBE COA Goal or other
8 requirements of this part which, by their scope, intensity, and appropriateness
9 to the objective, can reasonably be expected to fulfill the program requirement.
10
11 Manufacturer (DBE) —A DBE fine that operates or maintains a factory or
12 establishment that produces on the premises the materials, supplies, articles,
13 or equipment required under the Contract. A DBE Manufacturer shall produce
14 finished goods or products from raw or unfinished material or purchase and
15 substantially alters goods and materials to make them suitable for construction
16 use before reselling them.
17
18 Regular Dealer(DBE) —A DBE firm that owns, operates, or maintains a store,
19 warehouse, or other establishment in which the materials or supplies required
20 for the performance of a Contract are bought, kept in stock, and regularly sold
21 to the public in the usual course of business. To be a Regular Dealer, the DBE
22 firm must be an established regular business that engages in as its principal
23 business and in its own name the purchase and sale of the products in
24 question. A Regular Dealer in such items as steel, cement, gravel, stone, and
25 petroleum products need not own, operate or maintain a place of business if it
26 both owns and operates distribution equipment for the products. Any
27 supplementing of regular dealers' own distribution equipment shall be by long-
28 term formal lease agreements and not on an ad-hoc basis. Brokers,
29 packagers, manufacturers' representatives, or other persons who arrange or
30 expedite transactions shall not be regarded as Regular Dealers within the
31 meaning of this definition.
32
33 Underutilized Disadvantaged Business Enterprise (UDBE) —A DBE Firm
34 that is underutilized based on WSDOT's Disparity Study. All UDBEs are DBEs,
35
36 UDBE Commitment—The dollar amount the Contractor indicates they will be
37 subcontracting to be applied towards the UDBE Condition of Award Goal as
38 shown on the UDBE Utilization Certification Form for each UDBE
39 Subcontractor. This UDBE Commitment amount will be incorporated into the
40 Contract and shall be considered a Contract requirement. Any changes to the
41 UDBE Commitment require the Engineer's approval.
42
43 UDBE Condition of Award (COA) Goal —An assigned numerical amount
44 specified as a percentage of the Contract. Initially, this is the minimum amount
45 that the Bidder must commit to by submission of the Utilization Certification
46 Form and/or by Good Faith Effort (GFE). This is also the minimum required
47 amount of UDBE participation specified as a percentage of the final Contract
48 amount inclusive of all change orders.
49
50 UDBE COA Goal
51 The Contracting Agency has established a UDBE COA Goal for this Contract in the
52 amount Of: eleven (11) percent
1
2 DBE EligibilitylSelection of DBEs
3 In order to determine the distinct element(s) of work for which a DBE is certified,
4 Contractors should refer to the Certified Business Description. The Contractor shall
5 not use NAICS codes on the UDBE Utilization Certification.
6
7 Crediting DBE Participation
8 Subcontractors proposed as COA must be certified prior to the due date for bids on
9 the Contract. All non-COA DBE Subcontractors shall be certified before the
10 subcontract on which they are participating is executed.
11
12 Be advised that although a firm is listed in the Certified Firm Directory, there are
13 cases where the listed firm is in a temporary suspension status. The Contractor
14 shall review the OMWBE Suspended DBE Firms list A DBE firm that is included
15 on this list may not enter into new contracts that count towards participation.
16
17 DBE participation is only credited upon payment to the DBE.
18
19 The following are some definitions of what may be counted as DBE participation.
20
21 DBE Prime Contractor
22 Only take credit for that portion of the total dollar value of the Contract equal to
23 the distinct, clearly defined portion of the Work that the DBE Prime Contractor
24 performs with its own forces and is certified to perform.
25
26 DBE Subcontractor
27 Only take credit for that portion of the total dollar value of the subcontract that
28 is equal to the distinct, clearly defined portion of the Work that the DBE
29 performs with its own forces. The value of work performed by the DBE
30 includes the cost of supplies and materials purchased by the DBE and
31 equipment leased by the DBE, for its work on the contract. Supplies, materials
32 or equipment obtained by a DBE that are not utilized or incorporated in the
33 contract work by the DBE will not be eligible for DBE credit.
34
35 The supplies, materials, and equipment purchased or leased from the
36 Contractor or its affiliate, including any Contractor's resources available to
37 DBE subcontractors at no cost, shall not be credited.
38
39 DBE credit will not be given in instances where the equipment lease includes
40 the operator. The DBE is expected to operate the equipment used in the
41 performance of its work under the contract with its own forces. Situations
42 where equipment is leased and used by the DBE, but payment is deducted
43 from the Contractor's payment to the DBE is not allowed.
44
45 When the subcontractor is part of a UDBE Commitment, the following apply:
46
47 1. If a UDBE subcontracts a portion of the Work of its contract to another
48 firm, the value of the subcontracted Work may be counted toward the
49 UDBE COA Goal only if the Lower-Tier Subcontractor is also a UDBE.
50
1 2. Work subcontracted to a Lower-Tier Subcontractor that is a DBE, but
2 not a UDBE, may be counted as DBE race-neutral participation but not
3 Counted toward the UDBE COA Goal.
4
5 3. Work subcontracted to a non-DBE does not count towards the UDBE
6 COA Goal nor DBE participation.
7
8 DBE Subcontract and Lower Tier Subcontract Documents
9 There must be a subcontract agreement that complies with 49 CFR Part 26
10 and fully describes the distinct elements of Work committed to be performed
11 by the DBE. The subcontract agreement shall incorporate requirements of the
12 primary Contract. Subcontract agreements of all tiers, including lease
13 agreements shall be readily available at the project site for the Engineer's
14 review
15
16 DBE Service Provider
17 The value of fees or commissions charged by a DBE Broker, a DBE behaving
18 in a manner of a Broker, or another service provider for providing a bona fide
19 service, such as professional, technical, consultant, managerial services, or for
20 providing bonds or insurance specifically required for the performance of the
21 contract will only be credited as DBE participation, if the fee/commission is
22 determined by the Contracting Agency to be reasonable and the firm has
23 performed a CUF.
24
25 Force Account Work
26 When the Contractor elects to utilize force account Work to meet the UDBE
27 COA Goal, as demonstrated by listing this force account Work on the UDBE
28 Utilization Certification Form, for the purposes of meeting UDBE COA Goal,
29 only 50% of the Proposal amount shall be credited toward the Contractors
30 Commitment to meet the UDBE COA Goal.
31
32 One hundred percent of the actual amounts paid to the DBE for the force
33 account Work shall be credited towards UDBE COA Goal or DBE participation.
34
35 Temporary Traffic Control
36 If the DBE firm is being utilized in the capacity of only "Flagging", the DBE firm
37 must provide a Traffic Control Supervisor (TCS) and flagger, which are under
38 the direct control of the DBE. The DBE firm shall also provide all flagging
39 equipment (e.g. paddles, hard hats, and vests).
40
41 If the DBE firm is being utilized in the capacity of"Traffic Control Services", the
42 DBE firm must provide a TCS, baggers, and traffic control items (e.g., cones,
43 barrels, signs, etc.) and be in total control of all items In implementing the
44 traffic control for the project. In addition, if the DBE firm utilizes the
45 Contractor's equipment, such as Transportable Attenuators and Portable
46 Changeable Message Signs (PCMS) no DBE credit can be taken for supplying
47 and operating the items.
48
49 Trucking
50 DBE trucking fine participation may only be credited as DBE participation for
51 the value of the hauling services, not for the materials being hauled unless the
52 trucking firm is also certified as a supplier. In situations where the DBE's work
I is priced per ton, the value of the hauling service must be calculated
2 separately from the value of the materials in order to determine DBE credit for
3 hauling
4
5 The DBE trucking firm must own and operate at least one licensed, insured
6 and operational truck on the contract. The truck must be of the type that is
7 necessary to perform the hauling duties required under the contract. The DBE
8 receives credit for the value of the transportation services it provides on the
9 Contract using trucks it owns or leases, licenses, insures, and operates with
10 drivers it employs.
11
12 The DBE may lease additional trucks from another DBE firm.
13
14 The trucking Work subcontracted to any non-DBE trucking firm will not receive
15 credit for Work done on the project. The DBE may lease trucks from a non
-
16 DBE truck leasing company, but can only receive credit towards DBE
17 participation if the DBE uses its own employees as drivers.
18
19 DBE credit for a truck broker is limited to the fee/commission that the DBE
20 receives for arranging transportation services.
21
22 Truck registration and lease agreements shall be readily available at the
23 project site for the Engineer review.
24
25 When Trucking is a UDBE Commitment, the following apply:
26
27 1. If the trucking firm is a UDBE, participation may count towards the
28 UDBE COA Goal.
29
30 2. The Work that a UDBE trucking firm performs with trucks it leases
31 from other certified UDBE trucking firms qualify for 100% credit
32 towards the UDBE COA Goal.
33
34 3. The UDBE may lease trucks from a non-UDBE truck leasing
35 company, but can only receive credit towards UDBE participation if
36 the UDBE uses its own employees as drivers.
37
38 DBE Manufacturer and DBE Regular Dealer
39 One hundred percent (100%) of the cost of the manufactured product obtained
40 from a DBE manufacturer can count as DBE participation. If the DBE
41 manufacturer is a UDBE, participation may count towards the UDBE COA
42 Goal.
43
44 Sixty percent (60%) of the cost of materials or supplies purchased from a DBE
45 Regular Dealer may be credited as DBE Participation. If the role of the DBE
46 Regular Dealer is determined to be that of a pass-through, then no DBE credit
47 will be given for Its services. If the role of the DBE Regular Dealer is
48 determined to be that of a Broker, then DBE credit shall be limited to the fee or
49 commission it receives for its services. Regular Dealer status and the amount
50 of credit is determined on a Contract-by-Contract basis. If the DBE regular
51 dealer is a UDBE, participation may count towards the UDBE COA Goal.
52
1 Regular Dealer DBE firms, including UDBEs must be approved before being
2 used on a project. The WSDOT Approved Regular Dealer list published on
3 WSDOT's Office of Equal Opportunity (OEO) web site must include the
4 specific project for which approval is being requested. For purposes of the
5 UDBE COA Goal participation, the Regular Dealer must submit the Regular
6 Dealer Status Request form a minimum of five days prior to bid opening.
7
8 Purchase of materials or supplies from a DBE which is neither a manufacturer
9 nor a regular dealer, (i.e. Broker) only the fees or commissions charged for
10 assistance in the procurement of the materials and supplies, or fees or
11 transportation charges for the delivery of materials or supplies required on a
12 job site, can count as DBE participation provided the fees are not excessive as
13 compared with fees customarily allowed for similar services. Documentation
14 will be required to support the fee/commission charged by the DBE. The cost
15 of the materials and supplies themselves cannot be counted toward as DBE
16 participation.
17
18 Note: Requests to be listed as a Regular Dealer will only be processed if the
19 requesting firm is a material supplier certified by the Office of Minority
20 and Women's Business Enterprises in a NAICS code that falls within
21 the 42XXXX NAICS Wholesale code section.
22
23 Underutilized Disadvantaged Business Enterprise Utilization
24 The requirements of this section apply to projects with a UDBE COA Goal. To be
25 eligible for award of the Contract, the Bidder shall properly complete and submit an
26 Underutilized Disadvantaged Business Enterprise (UDBE) Utilization Certification
27 with the Bidder's sealed Bid Proposal, as specified in Section 1-02.9 Delivery of
28 Proposal. The Bidder's UDBE Utilization Certification must clearly demonstrate how
29 the Bidder intends to meet the UDBE COA Goal. A UDBE Utilization Certification
30 (WSDOT Form 272-056U) is included in the Proposal package for this purpose as
31 well as instructions on how to properly fill out the form.
32
33 The Bidder is advised that the items listed below when listed in the Utilization
34 Certification must have their amounts reduced to the percentages shown and those
35 reduced amounts will be the amount applied towards meeting the UDBE COA
36 Goal.
37
38 Force account at 50%
39 Regular dealer at 60%
40
41 In the event of arithmetic errors in completing the UDBE Utilization Certification, the
42 amount listed to be applied towards the UDBE COA Goal for each UDBE shall
43 govern and the UDBE total amount shall be adjusted accordingly.
44
45 Note: The Contracting Agency shall consider as non-responsive and shall
46 reject any Bid Proposal submitted that does not contain a UDBE
47 Utilization Certification Form that accurately demonstrates how the
48 Bidder intends to meet the UDBE COA Goal.
49
I Underutilized Disadvantaged Business Enterprise Written Confirmation
2 Document(s)
3 The requirements of this section apply to projects with a UDBE COA Goal. The
4 Bidder shall submit an Underutilized Disadvantaged Business Enterprise (UDBE)
5 Written Confirmation Document (completed and signed by the UDBE) for each
6 UDBE firm listed in the Bidder's completed UDBE Utilization Certification submitted
7 with the Bid. Failure to do so will result in the associated participation being
8 disallowed, which may cause the Bid to be determined to be nonresponsive
9 resulting in Bid rejection.
10
11 The Confirmation Documents provide confirmation from the UDBEs that they are
12 participating in the Contract as provided in the Contractor's Commitment. The
13 Confirmation Documents must be consistent with the Utilization Certification.
14
15 A UDBE Written Confirmation Document (WSDOT Form 422-031U) is included in
16 the Proposal package for this purpose.
17
18 The form(s) shall be received as specified in the special provisions for Section 1-
19 D2.9 Delivery of Proposal.
20
21 It is prohibited for the Bidder to require a UDBE to submit a Written Confirmation
22 Document with any part of the form left blank. Should the Contracting Agency
23 determine that an incomplete Written Confirmation Document was signed by a
24 UDBE, the validity of the document comes into question. The associated UDBE
25 participation may not receive credit.
26
27 Selection of Successful Bidder/Good Faith Efforts (GFE)
28 The requirements of this section apply to projects with a UDBE COA Goal. The
29 successful Bidder shall be selected on the basis of having submitted the lowest
30 responsive Bid, which demonstrates a good faith effort to achieve the UDBE COA
31 Goal. The Contracting Agency, at any time during the selection process, may
32 request a breakdown of the bid items and amounts that are counted towards the
33 overall contract goal for any of the UDBEs listed on the UDBE Utilization
34 Certification.
35
36 Achieving the UDBE COA Goal may be accomplished in one of two ways:
37
38 1. By meeting the UDBE COA Goal
39 Submission of the UDBE Utilization Certification and supporting UDBE
40 Written Confirmation Document(s) showing the Bidder has obtained
41 enough UDBE participation to meet or exceed the UDBE COA Goal.
42
oht t n rh,r +ho Bidder made ad uate GFE to meet the i inRF
43 2. By
44 GOA Goal
45 The Bidder may demonstrate a GFE in whole or part through GFE
46 dOCUrrentatlon ONLY IN THE EVENT a Bidder's efforts to solicit sufficient
47 UDBE participation have been unsuccessful. The Bidder must supply GFE
48 documentation in addition to the UDBE Utilization Certification, and
49 supporting UDBE Written Confirmation Document(s).
50
51 Note: In the case where a Bidder is awarded the contract based on
52 demonstrating adequate GFE, the advertised UDBE COA Goal will not
I be reduced. The Bidder shall demonstrate a GFE during the life of the
2 Contract to attain the advertised UDBE COA Goal.
3
4 GFE documentation shall be submitted as specified in Section 1-02.9.
5
6 The Contracting Agency will review the GFE documentation and will determine if
7 the Bidder made an adequate good faith effort.
8
9 Good Faith Effort (GFE) Documentation
10 GFE is evaluated when:
11
12 1, Determining award of a Contract that has COA goal,
13
14 2. When a COA UDBE is terminated and substitution is required, and
15
16 3. Prior to Physical Completion when determining whether the Contractor
17 has satisfied its UDBE commitments.
18
19 49 CFR Part 26, Appendix A is intended as general guidance and does not, in
20 itself, demonstrate adequate good faith efforts. The following is a list of types of
21 actions, which would be considered as part of the Bidder's GFE to achieve UDBE
22 participation. It is not intended to be a mandatory checklist, nor is it intended to be
23 exclusive or exhaustive. Other factors or types of efforts may be relevant in
24 appropriate cases.
25
26 1. Soliciting through all reasonable and available means (e.g. attendance at
27 pre-bid meetings, advertising and/or written notices) the interest of all
28 certified UDBEs who have the capability to perform the Work of the
29 Contract. The Bidder must solicit this interest within sufficient time to allow
30 the UDBEs to respond to the solicitation. The Bidder must determine with
31 certainty if the UDBEs are interested by taking appropriate steps to follow
32 up initial solicitations.
33
34 2. Selecting portions of the Work to be performed by UDBEs in order to
35 increase the likelihood that the UDBE COA Goal will be achieved. This
36 includes, where appropriate, breaking out contract Work items into
37 economically feasible units to facilitate UDBE participation, even when the
38 Contractor might otherwise prefer to perform these Work items with its
39 own forces.
40
41 3, Providing interested UDBEs with adequate information about the Plans,
42 Specifications, and requirements of the Contract in a timely manner to
43 assist them in responding to a solicitation.
44
45 a. Negotiating in good faith with interested UDBEs. It is the Bidder's
46 responsibility to make a portion of the Work available to UDBE
47 subcontractors and suppliers and to select those portions of the Work
48 or material needs consistent with the available UDBE subcontractors
49 and suppliers, so as to facilitate UDBE participation. Evidence of such
50 negotiation includes the names, addresses, and telephone numbers
51 of UDBEs that were considered, a description of the information
52 provided regarding the Plans and Specifications for the Work
1 selected for subcontracting; and evidence as to why additional
2 agreements could rot be reached for UDBEs to perform the Work.
3
4 b. A Bidder using good business judgment would consider a number of
5 factors in negotiating with subcontractors, including DBE
6 subcontractors, and would take a firm's price and capabilities as well
7 as the UDBE COA Goal into consideration. However. the fact that
8 there may be some additional costs involved in finding and using
9 UDBEs is not in Itself sufficient reason for a Bidder's failure to meet
10 the UDBE COA Goal, as long as such costs are reasonable. Also, the
11 ability or desire of a Contractor to perform the Work of a Contract with
12 its own organization does not relieve the Bidder of the responsibility
13 to make Good Faith Efforts. Contractors are not, however, required to
14 accept higher quotes from UDBEs if the price difference is excessive
15 or unreasonable.
16
17 4. Not rejecting UDBEs as being unqualified without sound reasons based
18 on a thorough investigation of their capabilities. The Contractor's standing
19 within its industry, membership in specific groups, organizations, or
20 associations and political or social affiliations (for example union vs. ror-
21 union employee status) are not legitimate causes for the rejection or non-
22 solicitation of bids in the Contractor's efforts to meet the UDBE COA Goal.
23
24 5. Making efforts to assist interested UDBEs in obtaining bonding, lines of
25 credit, or insurance as required by the recipient or Contractor.
26
27 6. Making efforts to assist interested UDBEs in obtaining necessary
28 equipment, supplies, materials, or related assistance or services.
29
30 7, Effectively using the services of available minority/women community
31 organizations, minority/women contractors' groups; local, State, and
32 Federal minority/women business assistance offices; and other
33 organizations as allowed on a case-by-case basis to provide assistance in
34 the recruitment and placement of UDBEs.
35
36 S. Documentation of GFE must include copies of each UDBE and non-DBE
37 subcontractor quotes submitted to the Bidder when a non-DBE
38 subcontractor is selected over a UDBE for Work on the Contract. (ref.
39 updated DBE regulations— 26.53(b)(2)(vi) & App. A)
40
41 Administrative Reconsideration of GFE Documentation
42 A Bidder has the right to request reconsideration if the GFE documentation
43 submitted with their Bid was determined to be inadequate.
44
45 The Bidder must request within 48 hours of notification of being
46 nonresponsive or forfeit the right to reconsideration.
47
48 The reconsideration decision on the adequacy of the Bidder's GFE
49 documentation shall be made by an official who did not take part in the
50 original determination.
51
1 Only original GFE documentation submitted as a supplement to the Bid
2 shall be considered. The Bidder shall not introduce new documentation at
3 the reconsideration hearing.
4
5 The Bidder shall have the opportunity to meet in person with the official for
6 the purpose of setting forth the Bidder's position as to why the GFE
7 documentation demonstrates a sufficient effort.
8
9 The reconsideration official shall provide the Bidder with a written decision
10 on reconsideration within five working days of the hearing explaining the
11 basis for their finding.
12
13 Procedures between Award and Execution
14 After Award and prior to Execution, the Contractor shall provide the additional
15 information described below. Failure to comply shall result in the forfeiture of the
16 Bidder's Proposal bond or deposit.
17
18 1. A UDBE Bid Item Breakdown is required which shall contain the fallowing
19 information for all UDBEs as shown on the UDBE Utilization Certification:
20
21 a. Correct business name, federal employee identification number (if
22 available), and mailing address.
23
24 b. List of all Bid items assigned to each UDBE with a clear description of
25 Work to be performed for each Bid item and the dollar value of the
26 Work to be performed by the UDBE.
27
28 C. Description of partial items (if any) to be sublet to each UDBE
29 specifying the Work committed under each item to be performed and
30 including the dollar value of the UDBE portion.
31
32 d, Total amounts shown for each UDBE shall match the amount shown
33 on the UDBE Utilization Certification. A UDBE Bid Item Breakdown
34 that does not conform to the UDBE Utilization Certification or that
35 demonstrates a different amount of UDBE participation than that
36 included in the UDBE Utilization Certification will be returned for
37 correction.
38
39 2. A list of all firms who submitted a bid or quote in attempt to participate in
40 this project whether they were successful or not. Include the business
41 name and mailing address.
42
43 Note: The firms identified by the Contractor may he contacted by the
44 Contracting Agency to solicit general information as follows: age of the
45 firm and average of its gross annual receipts over the past three-
46 years.
47
48 Procedures after Execution
49 Commercially Useful Function (CUF)
50 The Contractor may only take credit for the payments made for Work
51 performed by a DBE that is determined to be performing a CUF. Payurent
52 must be commensurate with the work actually performed by the DBE. This
I applies to all DBEs performing Work on a project, whether or not the DBEs are
2 COA, if the Contractor wants to receive credit for their participation. The
3 Engineer will conduct CUF reviews to ascertain whether DBEs are performing
4 a CUF. A DBE performs a CUE when it is carrying out its responsibilities of its
5 contract by actually performing, managing, and supervising the Work involved.
6 The DBE must be responsible for negotiating price, determining quality and
7 quantity; ordering the material, installing (where applicable), and paying for the
8 material itself. If a DBE does not perform "all" of these functions on a furnish-
9 and-install contract, it has not performed a CUF and the cost of materials
10 cannot be counted toward UDBE COA Goal. Leasing of equipment from a
11 leasing company is allowed. However, leasing/purchasing equipment from the
12 Contractor is not allowed. Lease agreements shall be readily available for
13 review by the Engineer.
14
15 In order for a DBE traffic control company to be considered to be performing a
16 CUE, the DBE must be in control of its work inclusive of supervision. The DBE
17 shall employ a Traffic Control Supervisor who is directly involved in the
18 management and supervision of the traffic control employees and services.
19
20 The DBE does not perform a CUF if its role is limited to that of an extra
21 participant in a transaction, contract, or project through which the funds are
22 passed in order to obtain the appearance of DBE participation.
23
24 The following are some of the factors that the Engineer will use in determining
25 whether a DBE trucking company is performing a CUF.
26
27 The DBE shall be responsible for the management and supervision of
28 the entire trucking operation for which it is responsible on the
29 contract. The owner demonstrates business related knowledge,
30 shows up on site and is determined to be actively running the
31 business.
32
33 The DBE shall with its own workforce, operate at least one fully
34 licensed, insured, and operational truck used on the Contract. The
35 drivers of the trucks owned and leased by the DBE must be
36 exclusively employed by the DBE and reflected on the DBE's payroll.
37
38 Lease agreements for trucks shall indicate that the DBE has
39 exclusive use of and control over the truck(s). This does not preclude
40 the leased truck from working for others provided It is with the
41 consent of the DBE and the lease provides the DBE absolute priority
42 for use of the leased truck.
43
44 Leased trucks shall display the name and identification number of the
45 DBE.
46
47 UDBE Utilization Plan
48 The UDBE Bid Item Breakdown is the initial plan for Bid Item work committed
49 to UDBE firms. At any time between Execution and Physical Completion, if the
50 Contractor identifies a change in the plan, an update to the Bid Item
51 Breakdown shall he submitted to the Engineer within 7 calendar days of the
proposed change for review and acceptance. Plan updates shall not make
2 changes to the Commitment or the UDBE Utilization Certification.
3
4 Joint Checking
5 A joint check is a check between a Subcontractor and the Contractor to the
6 supplier of materials/supplies. The check is issued by the Contractor as payer
7 to the Subcontractor and the material supplier jointly for items to be
8 incorporated into the project. The DBE must release the check to the supplier,
9 while the Contractor acts solely as the guarantor.
10
11 A joint check agreement must be approved by the Engineer and requested by
12 the DBE involved using the DBE Joint Check Request Form (form # 272-053)
13 prior to its use. The forrn must accompany the DBE Joint Check Agreement
14 between the parties involved, including the conditions of the arrangement and
15 expected use of the joint checks.
16
17 The approval to use joint checks and the use will be closely monitored by the
18 Engineer. To receive DBE credit for performing a CUE with respect to
19 obtaining materials and supplies, a DBE must "be responsible for negotiating
20 price, determining quality and quantity, ordering the material, installing and
21 paying for the material itself." The Contractor shall submit DBE Joint Check
22 Request Form for the Engineer approval prior to using a joint check.
23
24 Material costs paid by the Contractor directly to the material supplier are not
25 allowed. If proper procedures are not followed or the Engineer determines that
26 the arrangement results in lack of independence for the DBE involved, no DBE
27 credit will be given for the DBE's participation as it relates to the material cost.
28
29 Prompt Payment
30 Prompt payment to all subcontractors shall be in accordance with Section 1-
31 08.1. Prompt payment requirements apply to progress payments as well as
32 return of retainage.
33
34 Reporting
35 The Contractor and all subcontractors/suppliers/service providers that utilize
36 DBEs to perform work on the project, shall maintain appropriate records that
37 will enable the Engineer to verify DBE participation throughout the life of the
38 project.
39
40 Refer to Section 1-08.1 for additional reporting requirements associated with
41 this contract.
42
43 Changes in COA Work Committed to UDBE
44 The Contractor shall utilize the COA Ul to perform the work and supply the
45 materials for which each is committed unless approved by the Engineer. The
46 Contractor shall not be entitled to any payment for work or material completed by
47 the Contractor or subcontractors that was committed to be completed by the COA
48 UDBEs.
49
I Owner Initiated Changes
2 Where the Engineer makes changes that result in changes to Work that was
3 committed to a COA UDBE. The Contractor may be directed to substitute for
4 the Work in such instances.
5
6 Contractor Initiated Changes
7 The Contractor cannot reduce the amount of work committed to a COA UDBE
8 without good cause. Reducing UDBE Commitment is viewed as partial UDBE
9 termination, and therefore subject to the termination procedures below.
10
11 Original Quantity Underruns
12 In the event that Work committed to a UDBE firm as part of the COA
13 underruns the original planned quantities the Contractor may be required to
14 substitute other remaining Work to another UDBE.
15
16 Contractor Proposed DBE Substitutions
17 Requests to substitute a COA UDBE must be for good cause (see UDBE
18 termination process below), and requires prior written approval of the
19 Engineer. After receiving a termination with good cause approval, the
20 Contractor may only replace a UDBE with another certified UDBE. When any
21 changes between Contract Award and Execution result in a substitution of
22 COA UDBE, the substitute UDBE shall be certified prior to the bid opening on
23 the Contract.
24
25 UDBE Termination
26 Termination of a COA UDBE (or an approved substitute UDBE) is only allowed
27 in whole or in part with prior written approval of the Engineer. If the Contractor
28 terminates a COA UDBE without the written approval of the Engineer, the
29 Contractor shall not be entitled to credit towards the UDBE COA Goal for any
30 payment for work or material performed/supplied by the COA UDBE. In
31 addition, sanctions may apply as described elsewhere in this specification.
32
33 The Contractor must have good cause to terminate a COA UDBE.
34
35 Good cause typically includes situations where the UDBE Subcontractor is
36 unable or unwilling to perform the work of its subcontract. Good cause may
37 exist if:
38
39 The UDBE fails or refuses to execute a written contract.
40
41 The UDBE fails or refuses to perform the Work of its subcontract in a
42 way consistent with normal industry standards.
43
44 The UDBE fails or refuses to meet the Contractor's reasonable
45 nondiscriminatory bond requirements.
46
47 The UDBE becomes bankrupt, insolvent, or exhibits credit
48 unworthiness.
49
50 The UDBE is ineligible to work on public works projects because of
51 suspension and debarment proceedings pursuant to federal law or
52 applicable State law_
1
2 The UDBE voluntarily withdraws from the project, and provides
3 written notice of its withdrawal.
4
5 The UDBE's work is deemed unsatisfactory by the Engineer and not
6 in compliance with the Contract.
7
8 The UDBE's owner dies or becomes disabled with the result that the
9 UDBE is unable to complete its Work on the Contract.
10
11 Good cause does not exist if:
12
13 The Contractor seeks to terminate a COA UDBE so that the
14 Contractor can self-perform the Work.
15
16 The Contractor seeks to terminate a COA UDBE so the Contractor
17 can substitute another DBE contractor or non-DBE contractor after
18 Contract Award.
19
20 The failure or refusal of the COA UDBE to perform its Work on the
21 subcontract results from the bad faith or discriminatory action of the
22 Contractor (e.g., the failure of the Contractor to make timely
23 payments or the unnecessary placing of obstacles in the path of the
24 UDBE's Work).
25
26 Prior to requesting termination, the Contractor shall give notice in writing to the
27 UDBE with a copy to the Engineer of its intent to request to terminate UDBE
28 Work and the reasons for doing so. The UDBE shall have five (5) days to
29 respond to the Contractor's notice. The UDBE's response shall either support
30 the termination or advise the Engineer and the Contractor of the reasons it
31 objects to the termination of its subcontract.
32
33 When a COA UDBE is terminated, or fails to complete its work on the Contract
34 for any reason, the Contractor shall substitute with another UDBE or provide
35 documentation of GFE. A plan to achieve the COA UDBE Commitment shall
36 be submitted to the Engineer within 2 days of the approval of termination or the
37 Contract shall be suspended until such time the substitution plan is submitted.
38
39 Decertification
40 When a DBE is "decertified" from the DBE program during the course of the
41 Contract, the participation of that DBE shall continue to count as DBE
42 participation as long as the subcontract with the DBE was executed prior to the
43 decertification notice. The Contractor is obligated to substitute when a DBE
44 does not have an executed subcontract agreement at the time of
45 decertification.
46
47 Consequences of Non-Compliance
48 Breach of Contract
49 Each contract with a Contractor (and each subcontract the Contractor signs
50 with a Subcontractor) must include the following assurance clause:
51
I The Contractor, subrecipient, or Subcontractor shall not discriminate on the
2 basis of race, color, national origin, or sex in the performance of this contract.
3 The Contractor shall carry out applicable requirements of 49 CFR Pail 26 in
4 the award and administration of DOT-assisted contracts. Failure by the
5 Contractor to carry out these requirements is a material breach of this
6 Contract, which may result in the termination of this Contract or such other
7 remedy as the recipient deems appropriate, which may include, but is not
8 limited to:
9
10 (1) Withholding monthly progress payments,
11
12 (2) Assessing sanctions;
13
14 (3) Liquidated damages, and/or
15
16 (4) Disqualifying the Contractor from future bidding as non-responsible.
17
18 Notice
19 If the Contractor or any Subcontractor, Consultant, Regular Dealer, or service
20 provider is deemed to be in non-compliance, the Contractor will be informed in
21 writing, by certified mail by the Engineer that sanctions will be imposed for
22 failure to meet the UDBE COA Commitment and/or submit documentation of
23 good faith efforts. The notice will state the specific sanctions to be imposed
24 which may include impacting a Contractor or other entity's ability to participate
25 in future contracts.
26
27 Sanctions
28 If it is determined that the Contractor's failure to meet all or part of the UDBE COA
29 Commitment is due to the Contractor's inadequate good faith efforts throughout the
30 life of the Contract, including failure to submit timely, required Good Faith Efforts
31 information and documentation, the Contractor may be required to pay DBE penalty
32 equal to the amount of the unmet Commitment, in addition to the sanctions outlined
33 in Sections-07.11(5).
34
35 Payment
36 Compensation for all costs involved with complying with the conditions of this
37 Specification and any other associated DBE requirements is included in payment
38 for the associated Contract items of Work, except otherwise provided in the
39 Specifications.
hI CONSTRUCTION
TMANAGEMENT
W A S H I N G T 0
MEMO To FILE
Project Name, East Valley Highway Preservation S. 180th St.to S. Date. 8/7/2018
196th St.
Contractor: Scarsella Bros, Inc. Contract No: 17-3003.2
N
.......... .......—.—. ...... ........ .........................
Owner: City of Kent Federal Aid No: STPUL-1073 (005)
... . ............- ._A ___ ___
Subject: Change Order 001 Chronology of Events
Message
6/26/2018—Bids opened,Section 1-07.11 of the Special Provisions contained a WSDOT GSP from June 2017.
7/23/2018—Owner's CM team noted the outdated specification and conferred with WSDOT who confirmed the incorrect
specification was used.
8/2/2018—PreCon held,contractor notified of the anticipated change order
Note: No ICE performed as this change does not impact the work.
Cameron Bloomer, PE—6,re Resident Engineer 6/6/2 0 16
Date
1 P-11 (Rev. 8/11)