Cupertino Municipal Code Ch. 3.23 Public Works Contract and Bidding Procedures

This Chapter is enacted to enhance competition, to prevent corruption and undue influence in the awarding of public works contracts, and to clarify the City’s competitive bidding requirements established pursuant to Part 3 of the California Public Contract Code, Sections 20100 et seq.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

As used in this Chapter, the following terms, phrases, words and their derivations shall have the meanings given in this section:

1. “Bid” means any monetary bid submitted to the City in competitive bidding for the construction, alteration, repair or improvement of any structure, building, road or other improvement of any kind.

2. “Lowest responsible bidder” means the lowest monetary bidder who has demonstrated the attribute of trustworthiness as well as quality, fitness, capacity and experience to satisfactorily perform the public works contract sought.

3. “Public works contract” means an agreement for the erection, construction, alteration, repair or improvement of any public structure, building, road or other public improvement of any kind.

4. “Public works project” means any of the following:

a. Construction, reconstruction, erection, alteration, renovation, improvement, demolition, installation and repair work involving any publicly owned, leased, or operated facility;

b. Painting or repainting of any publicly owned, leased, or operated facility;

c. In the case of a publicly owned utility system, “public project” shall include only the construction, erection, improvement, or repair of dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

5. “Public works project” does not include maintenance work. For purposes of this section, “maintenance work” includes all of the following:

a. Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes.

b. Minor repainting.

c. Resurfacing of streets and highways at less than one inch.

d. Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems.

e. Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher.

6. For purposes of this Chapter, “facility” means any plant, building, structure, ground facility, utility system, subject to the limitation found in paragraph (c) of subdivision (4), real property, streets and highways, or other public work improvement.

7. “Purchasing Manager” means the principal purchasing official responsible for developing policy and ensuring compliance in the procurement of goods and services in accordance with applicable law.

8. “Purchasing Officer” means the City Manager, Director of Public Works or any other official or officials designated in writing by the City Manager for administration of this Chapter.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024; Ord. 26-2284, Att. A (part), 2026)

Except as otherwise provided for in this Chapter, public works projects with an estimated dollar value in excess of the required dollar value for competitive bidding established by section 22032(a) of the California Public Contracts Code, as may be amended, shall be contracted for pursuant to the procedures prescribed in this Chapter or by State Law.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 16- 2143, § 1, 2016; Ord. 24-2255, Att. A (part), 2024)

The notice inviting bids shall be in the form and published as follows:

A. Notices inviting bids shall include:

1. A distinct description of the public works project to be performed;

2. The location where bid documents, plans and specifications may be secured;

3. The time and place for opening bids;

4. The type and amount of bidder's security required;

5. The class of license required for the public works to be performed; and

6. A statement that the City has the authority to reject any and all bids and may waive any minor technicality or variance from the bid specifications.

B. The notice inviting bids shall be:

1. Published in a newspaper of general circulation printed and published in the City at least the number of days specified in Section 22037 of the California Public Contract Code, as may be amended, before the opening of bids; and

2. Provided to all construction and trade journals specified in Section 22036 of the California Public Contract Code, or as may be amended, at least the number of days and by the methods set forth in Section 22037 of the California Public Contracts Code, as may be amended; and

3. Posted on the City’s website or another public bidding platform.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 16-2143, § 2, 2016; Ord. 24-2255, Att. A (part), 2024)

A. All bids shall be presented under sealed cover (identified by the bid name and number), submitted to the attention of the Purchasing Officer, or designee, via the process described in the notice inviting bids and accompanied by one of the following forms of bidder’s security:

1. Cash;

2. A cashier’s check made payable to the City;

3. A certified check made payable to the City;

4. A bidder's bond executed by an admitted surety insurer, made payable to the City.

B. The security shall be in an amount equal to at least ten percent of the amount of the bid, or such other sum as may be authorized by the California Public Contract Code. A bid shall not be considered unless one of the forms of bidder’s security is enclosed with it.

C. Upon award of the contract to the lowest responsible bidder, the security of an unsuccessful bidder shall be returned no later than ninety days from the date the contract is awarded.

D. All bidders on a public works project must designate in their bids the name, address, the portion of the work each subcontractor will perform, and other information as required by Section 4101of the California Public Contract Code, as may be amended, of each subcontractor:

1. Who will perform work exceeding one-half of one percent of the prime contractor’s total bid as specified in Section 4104(a)(1), or

2. Who meet or exceed the thresholds for specific types of work as specified in Section 4101(a)(1).

3. The prime contractor shall list only one subcontractor for each portion of work as is defined by the prime contractor in their bid as specified in Section 4104 (b).

E. A contractor submitting a bid as the prime contractor shall not also submit a bid as a subcontractor for a competing prime contractor.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 16-2143, § 3, 2016; Ord. 24-2255, Att. A (part), 2024)

Bids shall be opened on the date stated in the notice inviting bids. A tabulation of all bids received shall be posted on the City’s website on the first working day after 48 hours of the bid opening and will remain posted for a period of not less than fifteen calendar days after the bid opening. Any bid which is submitted after the time specified in the notice shall not be considered.

(Ord. 21-2234, Att. A (§ 6), 2021; Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

Contracts shall be awarded by the City Council to the lowest responsible bidder except as otherwise provided in this Chapter.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

If the successful bidder fails to execute the contract within ten days after the date the notice of award of contract is mailed or provided, unless the City is responsible for the delay, the amount of the bidder’s security shall be forfeited to the City except as provided in Section 3.23.090.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

The City Council may, on refusal or failure of the successful bidder to execute the contract within ten days after the date the notice of award of contract is mailed or provided, unless the City is responsible for the delay, award it to the next lowest responsible bidder. If the City Council awards the contract to the second lowest bidder, the amount of the lowest bidder’s security may be applied by the City to the difference between the low bid and the second lowest bid, and the surplus, if any, shall be returned to the lowest bidder if cash or a check is used, or to the bidder’s surety if a bond is used.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

A. The City Council, in its sole discretion, may reject the lowest bid upon specific findings that the lowest bidder is not responsible. To determine responsibility, the City Council may consider, among other things, the bidder’s financial responsibility, type of license, type of equipment, years of experience in construction work, other projects bidder worked on in the last five years, whether bidder has failed to complete any contract, bidder’s ability to be bonded and its quality, fitness, or capacity to satisfactorily perform the work.

B. If the City Council rejects the lowest bid upon its determination that the lowest bidder is not responsible, the City shall do the following:

1. Give notice of the City Council’s decision to the lowest bidder, setting forth the reasons why the bidder is not determined the lowest responsible bidder;

2. In the notice, give bidder an opportunity to ask for a pre-award hearing before the City Council on the issue;

3. If hearing is requested, agenda the matter pursuant to California Government Code hearing requirements;

4. After the hearing, the City Council shall make a finding, supported by the evidence on the record, as to the non-responsibility of the lowest bidder.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

The City Council, in its sole discretion, may:

A. Reject all bids presented and readvertise for new bids;

B. Reject any bid that fails to meet the bidding requirements in any respect;

C. If two or more bids are the same and the lowest, allow the Purchasing Officer or Purchasing Manager to select one through a blind selection process;

D. If no bids are received, the City Council may have the project done without further complying with this Chapter;

E. Waive minor irregularities in any bid received.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

Except as otherwise required by this Chapter or under state or federal law, the bidding procedures of this Chapter may be dispensed with for public works projects with an estimated dollar value equal to or less than the dollar value specified in Subdivision (b) of Section 22032 of the Public Contract Code, and the following informal bidding procedures substituted:

A. The City shall maintain a list of qualified contractors, identified according to categories of work. Minimum criteria for compilation of the contractor list shall be determined by the California Uniform Construction Cost Accounting Commission (“Commission”). All contractors on the list for the category of work being bid and/or all construction trade journals specified by the Commission shall be mailed or emailed a notice inviting informal bids, unless the product or service is proprietary.

B. All mailing of notices to contractors and construction trade journals shall be completed not less than the number of days specified in Section 22304 of the California Public Contract Code, or as may be amended, before the date of opening the bids.

C. The City Council hereby delegates the authority to award contracts pursuant to informal bidding to the Purchasing Officer.

(Ord. 1632, 1993; Ord. 1583, § 1 (part), 1992; Ord. 16- 2143, § 4, 2016; Ord. 24-2255, Att. A (part), 2024)

The following are exempt from competitive bidding requirements:

A. Emergency Work. If there is a great public calamity, such as an extraordinary fire, flood, storm, epidemic or other disaster, or if it is necessary to do emergency work to prepare for national or local defense, the City Council may pass a resolution by a four-fifths vote declaring that the public interest and necessity demand the immediate expenditure of public money to safeguard life, health or property in accordance with Public Contract Code Section 22050. Upon adoption of the resolution, the City may expend any sum required in the emergency without complying with this Chapter;

B. Small Contracts. Any contract for public works projects with an estimated dollar value equal to or less than the dollar value for competitive bidding established by section 22032(a) of the California Public Contracts Code;

C. Meaningless Bids. Where the nature of the subject of the contract is such that competitive bids would not produce an advantage and when the advertisement for competitive bidding would be undesirable, impracticable or impossible;

D. Performance of Project After Rejection of Bids. After rejection of bids presented, the City Council may pass a resolution by a four-fifths vote declaring that the project can be performed more economically by day labor or the materials or supplies furnished at a lower price in the open market. Upon adoption of the resolution, the City is relieved from further compliance with bidding requirements.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

The Purchasing Officer has authority to require a performance bond before entering a contract, in such amount as the Purchasing Officer finds reasonably necessary to protect the best interests of the City or as may be required by law. If the City requires a performance bond, the form and amount of the bond shall be described in the notice inviting bids.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

The cash or proceeds collected pursuant to this Chapter shall be deposited in the fund out of which the expenses of preparation and printing of the plans and specifications, estimates of cost and publication of notice are paid.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)

Notwithstanding the provisions of this Chapter, if the Director of Public Works determines that additional or extra work on any public works project is required to complete the project as originally intended, the Director of Public Works is authorized to approve contract change orders for additional or extra work on any public works contract provided that the aggregate total of all such contract change orders for the public works project does not exceed the contract amount plus contingency at the time the contract is awarded. Under this same authority, the Director of Public Works is authorized to approve extensions of time to public works contracts.

(Ord. 1900, § 1, 2002; Ord. 24-2255, Att. A (part), 2024)

The City reserves the right to delete up to twenty-five percent (25%) of the work on a public works contract where such deletions would advance the project as originally contemplated.

(Ord. 1583, § 1 (part), 1992; Ord. 24-2255, Att. A (part), 2024)