Request to Sever Item from Consent Calendar

Director Newhouse Segal requested that Item No. 5.A.1., “Approval of the Minutes of the Building and Operating Committee/Committee of the Whole meeting of September 24, 2009,” be severed from the Consent Calendar, in order to amend the minutes.

Motion to Approve the Remaining Consent Calendar Items:

Directors BROWN/KERNS moved approval of the remaining Consent Calendar items. All items were approved by the following vote of the Board of Directors:

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Approve the Minutes of the Following Meetings:

Regular Meeting of the Board of Directors of September 25, 2009.

Carried

Claim of Christy Cook

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Carried

Motion to Approve the Minutes of the Building and Operating Committee/ Committee of the Whole meeting of September 24, 2009, as Amended

Directors BROWN/KERNS moved that the words “with the concurrence of the President of the Board and the Chair of the Building and Operating Committee” be added in Bullet No. 2 on Page 5, as part of Director Newhouse Segal’s comments listed in the minutes of the Building and Operating Committee meeting of September 24, 2009, to read in its entirety, as follows, and approve the Building and Operating Committee/Committee of the Whole minutes, as amended:

“She suggested that the Board delegate authority to the General Manager, with the concurrence of the President of the Board and the Chair of the Building and Operating Committee, to approve all change orders exceeding $50,000.00. In response, Mr. Mulligan stated that change orders provide the ability to address unknown or changed conditions. Mr. Mulligan also stated that, under the current procedures, the District may incur delay costs if unknown problems are discovered when the vessel is dry-docked if addressing the problems require a change order in excess of $50,000.00.”

Carried

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Announcement

Ms. Kupersmith updated the Board on the contract negotiations with the California State Department of Transportation (Caltrans) for the District on the Doyle Drive Reconstruction Project (Doyle Drive Project) relative the lane diversion services. Ms. Kupersmith provided the details under the current contract that terminates on October 27, 2009. Ms. Kupersmith stated that the District sent a letter to Caltrans expressing a willingness to continue to provide the lane diversion services for approximately 18 months during Caltrans Contract Nos. 3 and 4 for the Doyle Drive Project provided satisfactory contractual protections are negotiated. She pointed out that there will be different road conditions for lane diversions; therefore, the District is requesting to re-negotiate the contract in terms of compensation and indemnification issues. She noted that when the work begins on the actual structure, there will be a permanent barrier in place and the lane diversion services will no longer be needed.

Presentation of Twenty-Five Year Service Award to Kevin L. Raddatz, Electrical Superintendent, Bridge Division

President Boro presented a Twenty-Five Year Service Award to Kevin L. Raddatz, Electrical Superintendent, Bridge Division, and expressed his congratulations on behalf of the Board of Directors.

Presentation of Twenty-Year Service Award to Tilman R. Hanson, Chief Bridge Painter, Bridge Division

President Boro presented a Twenty-Year Service Award to Tilman R. Hanson, Chief Bridge Painter, Bridge Division, and expressed his congratulations on behalf of the Board of Directors.

Presentation of Employee of the Month Award to Linh V. Do, Bus Mechanic, Bus Transit Division

President Boro presented the Employee of the Month Award to Linh V. Do, Bus Mechanic, Bus Transit Division, and expressed his congratulations on behalf of the Board of Directors.

Report from Attorney

Attorney David Miller explained to the Board the District’s bid protest procedures involving contracts within the General Manager’s authority (contracts under $100,000.00). Mr. Miller then described the details of the bid protest matter that is being presented to the Board. He suggested the following, in terms of process: 1) consider comments from the General Manager with respect to her decision; 2) enable the protesting parties to present their case to the Board; 3) consider the technical comments from the General Manager and staff in response to the testimony given by protesting parties; and, 4) take action on whether to accept or reject the bid protest. Mr. Miller noted that the item is not a matter for action on the award of the contract, as that action will be made by the General Manager based upon the disposition of the bid protest.

Report from General Manager

Ms. Kupersmith provided the details of the Invitation for Bid (IFB) for the procurement of batteries for the District’s bus fleet. Ms. Kupersmith explained two specific technical changes to the bid specifications: 1) solicit for a fast-start battery rather than the DEKA heavy-duty cycle battery; and, 2) require a two-year full replacement warranty. Ms. Kupersmith described the standardized process of evaluating “approved equals” requests, stating that all bidders are required to provide evidence that a proposed “approved equals” is equivalent to the item(s) in the IFB. Ms. Kupersmith also stated that the District received a “Request for Approved Equals,” from Batteries, USA; however, the request was denied because it did not include sufficient technical data for staff to make a determination whether or not the proposed “approved equals” met the specific operating characteristics of the battery in the IFB. Ms. Kupersmith talked about how Batteries, USA, went through the process of submitting protest letters to the District to dispute the staff recommendation for award of contract. Ms. Kupersmith stated that she thoroughly investigated the matter and made the independent determination to support staff’s recommendation to reject the bid protest from Batteries, USA; and, to award Contract No. 2010-BT-3 to the lowest responsive, responsible bidder. She further stated that individuals at Batteries, USA, exercised their prerogative to present their bid protest to the Board, as per the District’s Bid Protest Procedures, and based upon the action taken today, she act on the procurement accordingly.

Public Comment

Said Senan, President of Batteries, USA, stated that his company has had a long supplier relationship with the District and for the last 10 years, the District and other transit agencies have purchased DEKA batteries from Batteries, USA, through the joint procurement effort via the Regional Transit Coordinating Council (RTCC). The RTCC is made up of transit agencies throughout the Bay Area. Mr. Senan noted that the District has not included a two-year replacement warranty in the previous bid specifications. Mr. Senan also stated that, during the last RTCC bid process, the District’s procurement staff requested to negotiate a lower price for the batteries, which was rejected by Batteries, USA. He further stated that, as a result, the District withdrew its participation in the RTTC bid, and independently proceeded to seek an IFB for bus batteries. He asserted that, in his opinion, the District used unfair business practices by changing the bid specifications with the intention of eliminating his company from the competition. He also challenged the District’s bid specifications for eliminating the requirement for the product to be manufactured in America.

Jeff Concannon, Director, East Penn Manufacturing-DEKA Batteries, expressed his support of Mr. Senan’s protest and informed the Board that he is available to answer any questions about DEKA batteries. Mr. Concannon noted that, in his opinion, the DEKA batteries would qualify for the two-year warranty job duty, as there has been no warranty returns for these batteries during his six-year employment at East Penn Manufacturing.

Discussion by the Board

• Director Campos made the following comments and inquiries:
  • He requested clarification regarding the impetus for the District’s change in the technical specifications for a different battery type. In response, Ms. Kupersmith stated that she has challenged staff to look for a better way of doing District business; therefore, staff embarked on testing the fast-start battery for bus performance. In addition, Steve Miller provided a “compare and contrast” between the fast-start battery and the deep-cycle battery. Mr. Miller reported on the research and tests that have been performed over the last 18 months on these batteries, which included tracking the number of jump-starts on buses. Mr. Miller emphasized the importance of buses being ready for routes, as passengers are relying on bus timetables. Mr. Miller noted that, since buses are now equipped with more advanced technology, the buses require more power to operate. Accordingly, the availability of a reliable fast-starting battery is of great interest to the District. He also noted that the bid specifications include a requirement for a two-year warranty as an economical precaution in the event that the District does not get the full life from the fast-start battery.
  • He requested clarification regarding the procedure for compiling the list of vendors that are mailed a copy of the bid documents. In response, Mr. Miller stated that the list consists of vendors that have done business with the District, as well as vendors that have contacted staff to sell their product. Mr. Miller also stated that staff did not mail bid documents to Batteries, USA, because they did not express interest in the IFB.
  • He commented that it is puzzling as to why staff did not follow-through with District past practice by mailing bid documents to the incumbent supplier. In response, Ms. Kupersmith stated that the principle of mailing bid documents to the incumbent supplier as a matter of practice will now be the District’s standard operating procedure regardless of any perception staff may have about incumbent’s interest in the IFB. Ms. Kupersmith described the District’s practice in sending out bid documents, stating that the District mails bid documents to vendors expressing interest, as well mails to small businesses to encourage participation as a part of the Disadvantage Business Enterprise Program. Mr. Miller noted that the District’s goal is to increase competition in bidding.
  • He commented that when the District mails bid documents to some vendors and excludes other vendors, it could be interpreted to mean something regardless of the intent. He cautioned staff from using subjective information to decide which vendor will receive bid documents in the mail. He stated that the key is to have a level playing field for all vendors in terms of the reality, as well as perception.

• Director Grosboll made the following comments and inquiries:
  • He requested clarification regarding the District’s practice for sending bid documents to bidders. In response, Mr. Miller stated that, in accordance with federal regulations, the District advertised the IFB, as well as posted the notice and bid documents to the District’s web site. Mr. Miller also stated that, as a courtesy, the procurement staff sent bid documents to vendors that were thought to be interested.
  • He inquired as to the reason why the procurement staff did not send bid documents to the incumbent supplier, Batteries, USA. In response, Mr. Miller stated that it was believed by procurement staff that Batteries, USA, was not interested in the procurement because of the changes; therefore, the District only mailed a copy to Bayland Battery, the distributor for Batteries, USA.
  • He acknowledged that the District would review the procedures for mailing bid documents for IFB’s, and directed staff to present the process to the Board at a later date.

• President Boro and Director Sobel requested clarification regarding the sequence of letters from Batteries, USA, in regards to the timeliness for them to submit a bid. In response, Attorney Miller stated that the record clearly establishes that, at a certain point in time, in timely manner and without prejudice, Batteries, USA, was made aware of the opportunity to participate in the IFB. Attorney Miller noted that Batteries, USA, availed itself of the procedure to submit a formal “Request for Approved Equals,” and was given a supplemental opportunity to submit a bid, but did not.

In conclusion, Attorney Miller stated that thoughtful consideration was given at the outset to the type of product that the District wanted. Attorney Miller also stated that management exercised its discretion to advertise an IFB for a new type of product. Attorney Miller further stated that Batteries, USA, was afforded an opportunity to participate, but did not submit the technical justification needed to demonstrate that their type of battery was in compliance with an “approved equals,” with respect to the product that is specified in the IFB. Attorney Miller recommended that the Board support the General Manager’s determination that the bid protest be rejected.

Action by the Board

Directors EDDIE/BROWN

Resolution No. 2009-085 rejects the protest submitted by Batteries USA, Inc., relative to Contract No. 2010-BT-3, Heavy Duty Batteries, based on lack of compliance with technical specifications and warranty requirements, and failure to provide information relevant to its request for an approved equal.

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Authorize Execution of an On-Call Agreement with the California Highway Patrol to Provide Enforcement Services during Construction for the Golden Gate Bridge Seismic Retrofit Phase IIIA, North Anchorage Housing/North Pylon Project

Directors EDDIE/KERNS

Resolution No. 2009-086 authorizes execution of an On-Call Services Agreement with the California Highway Patrol in an amount not to exceed $2,247,850.00, for enforcement of the construction zone speed limit and assistance with traffic diversions for night-time lane closures during construction of the Golden Gate Bridge Seismic Retrofit Phase IIIA, North Anchorage Housing/North Pylon Project, with the understanding that funds for these services are included in the Seismic Retrofit Project budget.

Adopted

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Authorize Execution of Change Order No. 16 to Contract No. 2006-B-1, Golden Gate Bridge Seismic Retrofit Phase IIIA, North Anchorage Housing/North Pylon, for Modifications to Foundations

Directors EDDIE/KERNS
Resolution No. 2009-087 authorizes execution of Change Order No. 16 to Contract No. 2006-B-1, Golden Gate Bridge Seismic Retrofit Phase IIIA, North Anchorage Housing/North Pylon, in the amount of $283,281.27, for modifications to Bent 5 and Bent 6 foundations, with the understanding that monies are available in the contingency fund.

Adopted

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Approve Actions Relative to the National Science Foundation Grant Award No. DRL-0840185, the Golden Gate Bridge as an Informal Science Education Resource

Directors EDDIE/KERNS
Resolution No. 2009-088 approves actions relative to the National Science Foundation (NSF) Grant Award No. DRL-0840185, The Golden Gate Bridge as an Informal Science Education Resource, as follows:

Authorize the addition of a new project, Golden Gate Bridge Informal Science Education Project, to the FY 09/10 Bridge Division Capital Budget in the amount of $3,499,777.00, to be funded with NSF grant funds ($2,999,777.00) and with District reserves ($500,000.00), as concurred with by the Finance-Auditing Committee at its meeting of October 22, 2009.

Adopted

Authorize Amendment to Pass Through Agreement with the Metropolitan Transportation Commission for Federal Transit Administration Funds for the TransLink® Project

Directors STROEH/KERNS
Resolution No. 2009-089 authorizes the General Manager to execute an amendment to the Pass-Through Agreement with Metropolitan Transportation Commission for Federal Transit Administration funds for the Translink® project.

Adopted

AYES (15): Directors Brown, Chu, Campos, Cochran, Grosboll, Kerns, McGlashan, Moylan, Newhouse Segal, Pahre, Snyder and Sobel; Second Vice President Eddie; First Vice President Reilly; President Boro
NOES (0): None
ABSENT (4): Directors Dufty, Elsbernd, Sanders and Stroeh

Attorney’s Report

Attorney David Miller, at the request of President Boro, stated that the Board of Directors would convene in closed session to discuss a matter of pending litigation listed on the agenda as Item No. 6.B., Dustin Wise vs. Golden Gate Bridge, Highway and Transportation District (District).

After closed session, President Boro called the meeting to order in open session with a quorum present. Attorney Miller reported that the Board of Directors met in closed session, as permitted by the Brown Act, to hear a report from legal counsel with regard to the matter of Dustin Wise vs. District. Mr. Miller reported that the Board unanimously provided settlement authority for disposition of this matter.