Underground Utilities v. San DiegoCounty

Filed 2/6/07  Underground Utilities v. San Diego County CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Jay M. Bloom, Judge.  Affirmed.

            Appellant Underground Utilities, Inc. (UUI) appeals from an order denying its petition for a writ of administrative mandate challenging a decision of respondent County of San Diego (County).  UUI submitted a bid to Sundt Construction, Inc. (Sundt) for work relating to underground utilities for a County nursing facility project, and thereafter refused to sign Sundt's subcontract that UUI claimed substantially differed from agreed-upon bid conditions.  After Sundt requested that UUI be substituted out of the project, UUI sought an administrative hearing resulting in County's decision to grant Sundt's request for substitution, and thereafter unsuccessfully petitioned for a writ of mandate.  On appeal, UUI contends the County hearing officer ignored facts and misapplied the applicable provisions of the Subletting and Subcontracting Fair Practices Act (Pub. Contract Code^[1], §  4100 et seq.), the hearing officer's decision was not supported by his findings, and his findings were not supported by the evidence.  UUI argues the superior court made similar legal and factual errors in denying his writ petition.  

            We conclude the hearing officer's finding as to UUI's refusal to execute a " written contract . . . based upon the general terms, conditions, plans, and specifications for the project involved or the terms of that subcontractor's written bid . . . " (§  4107, subd. (a)(1)), justifying Sundt's request for substitution, is supported by substantial evidence.  We further conclude the hearing officer's interpretation of UUI's bid condition No. 3 is reasonable and supported by substantial evidence.  We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

            Sundt solicited bid proposals for construction of a County skilled nursing facility in Santee, California (the project).  In connection with its solicitation, Sundt issued instructions concerning bidding requirements and procedures, project requirements and procedures, and insurance (the bid instructions).  The bid instructions contained provisions relating to cooperation between the subcontractors and Sundt, and among the various subcontractors to insure the work proceeded without undue interference or delay. 

            On December 7, 2004, UUI submitted a bid to Sundt on Sundt's bid proposal form.  UUI's representative placed his initial next to several acknowledgments in which UUI was required to agree that in submitting the proposal it (1) agreed to complete the work in accordance with Sundt's project schedule; (2) reviewed and agreed to all terms stated in Sundt's subcontract agreement; and (3) acknowledged  and agreed to complete the work in accordance with the requirements, procedures and guidelines outlined in Sundt's bid instructions.  UUI attached a separate document to its bid entitled " Underground Utilities, Inc. Bid Conditions," listing 16 terms and exclusions.  Item No. 3 provided:  " Bid based on Underground Utilities, Inc. completing their phase of work before other trades being [sic]work other than grading."  The next day, a UUI representative advised Sundt by facsimile that two issues " need to be resolved prior to entry into a contract on this project."   The second item read: " Per our Bid Conditions item #3 this bid was 'based on Underground Utilities, Inc. completing their phase of work before other trades begin work other than grading[.']  Our portion of the work is anticipated to take approximately 20 weeks.  We would require sole use of the jobsite during this time."  

            On January 12, 2005, County awarded Sundt the prime contract, which listed UUI as a subcontractor.  That same month, UUI and Sundt engaged in discussions about a possible underbid contained in UUI's proposal.  After those discussions, on January 17, 2005, Sundt transmitted a copy of its subcontract to UUI with instructions that UUI execute it without revisions.  A week later, Sundt advised County by letter that UUI had refused to sign its standard subcontract agreement, asking County to consider its letter a formal request to " de-list" UUI on the project.  At some point thereafter, County notified Sundt that its requested substitution was acceptable.^[3]    

            In February 2005, UUI's counsel sent a revised subcontract to Sundt.  In an accompanying transmittal letter, UUI referred to previous communications between the parties in which UUI had stated its position that the original subcontract contained a number of items that were unacceptable to UUI based on its bid proposal and industry standards.

            In March 2005, UUI was notified of Sundt's request to substitute UUI out of the project and filed a timely objection under section 4107, subdivision (a)(7).  Thereafter, a hearing was conducted by hearing officer John McTighe, the Director of County's Department of General Services.  The hearing officer stated at the outset that the hearing was an informal proceeding under section 4107 and it considered statements from counsel, as well as unsworn input from the parties' representatives.  On March 28, 2005, the hearing officer issued his Determination and Findings granting Sundt's request to substitute a different subcontractor.  He found (1) UUI " failed or refused to execute a written contract within a reasonable time for the scope of work specified in its bid and at a price specified in its bid based upon the general terms, conditions, plans and specifications for the project as presented to UUI by [Sundt]" ; (2) UUI did not comply with the terms of the bid instructions issued by Sundt but rather submitted " conflicting, ambiguous qualifications to its bid" ; (3) the parties agreed that all of the items could be resolved except Item No. 3 as defined in UUI's December 8, 2004 facsimile, but " [d]isagreement over exclusive use of the site by UUI is the determinate item preventing agreement between the parties" ; and (4) UUI's December 8, 2004 " post-bid clarification . . . which required Sundt to give UUI exclusive use of the site for 20 weeks, was a modification to UUI's bid that was not allowed under the terms and conditions of the 'Instructions to Bidders' to hold bids open for 90 days."   

            UUI petitioned for an administrative writ of mandate in the superior court.  The superior court denied the petition, concluding the hearing officer's findings were " reasonable and supported by substantial evidence."   UUI filed the present appeal.

DISCUSSION

I.  Standard of Review

            Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final order or decision rendered by a state or local agency.  (Bixby v. Pierno (1971) 4 Cal.3d 130, 137.)  Code of Civil Procedure section 1094.5, subdivision (b) provides that judicial review of such a decision shall " extend to the questions whether the [administrative agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.  Abuse of discretion is established if the [administrative agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."  When a petition for a writ of administrative mandamus contends the administrative record does not support the findings, the trial court examines the record using either an independent judgment or a substantial evidence standard of review.  (Code Civ. Proc. § 1094.5, subd. (c); Bixby v. Pierno,4 Cal.3d at pp. 143-144; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51-52; Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 320.)  No party here contends the trial court should have used an independent judgment standard of review, which applies where the administrative agency's decision will substantially affect a fundamental vested right.  (See Berlinghieri v. Dept. of Motor Vehicles (1983) 33 Cal.3d 392, 395.) 

            Regardless of which test is applied in the trial court, this court reviews the administrative decision under the substantial evidence test.  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 218.)  Where the substantial evidence test governed at the trial level, we focus on the findings made by the agency rather than on findings made by the superior court.  (Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2003) Scope of Review under CCP § 1094.5, § 6.35, p. 174 and §§ 6.170-6.175, pp. 284-287; Id., Appeal From Superior Court Judgment, § 16.51, p. 622.) 

            There is a presumption the agency's findings are supported by substantial evidence, and UUI has the burden of demonstrating otherwise.  (Ghilotti Construction Company v. City of Richmond (1996) 45 Cal.App.4th 897, 903.)  " We may not reweigh the evidence and must view it in the light most favorable to the [agency's] actions, indulging all reasonable inferences in support of those actions."   (Ibid.)

II.  Subletting and Subcontracting Fair Practices Act

            UUI's contentions center around section 4107 of the Subletting and Subcontracting Fair Practices Act (hereafter the Act), which establishes a detailed mandatory framework for competitive bids on public works contracts.  (GoldenState Boring & Pipe Jacking v. Orange County Water District (2006) 143 Cal.App.4th 718, 721.)  " The Act requires general contractors to identify in their bids all subcontractors 'who will perform work or labor or render service to the prime contractor' in excess of one-half of 1 percent of the total bid of the prime contract.  [Citation.]  The requirement emanates from the Legislature's finding 'that the practices of bid shopping and bid peddling in connection with the construction, alteration, and repair of public improvements often result in poor quality of material and workmanship to the detriment of the public, deprive the public of the full benefits of fair competition among prime contractors and subcontractors, and lead to insolvencies, loss of wages to employees, and other evils.' "  (Golden State, at pp. 721-722.)  " 'Bid shopping is the use of the low bid already received by the general contractor to pressure other subcontractors into submitting even lower bids.  Bid peddling, conversely, is an attempt by a subcontractor to undercut known bids already submitted to the general contractor in order to procure the job.  [Citations.]  The statute is designed to prevent only bid shopping and peddling that takes place after the award of the prime contract.' "  (Golden State, 143 Cal.App.4th at p. 722, quoting Southern Cal. Acoustics Co. v. C.V. Holder, Inc. (1969) 71 Cal.2d 719, 726, fn. 7.)

            Once a general contractor's bid is accepted, the Act creates a statutory duty upon the general contractor to use the listed subcontractor – he cannot substitute another subcontractor – unless one of several enumerated circumstances exist.  (E.F. Brady Co. v. M.H. Golden Co. (1997) 58 Cal.App.4th 182, 188; Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1438.)  One of the circumstances permitting a general contractor to substitute another subcontractor is " [w]hen the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract for the scope of work specified in the subcontractor's bid and at the price specified in the subcontractor's bid, when that written contract, based upon the general terms, conditions, plans, and specifications for the project involved or the terms of that subcontractor's written bid, is presented to the subcontractor by the prime contractor."   (§  4107, subd. (a)(1).^[4])

            The Act thus binds a contractor to its listed subcontractors even though the parties have not yet entered into a contractual relationship, and it confers a statutory right on the named subcontractor to perform the specified work.  (Golden State, supra, 143 Cal.App.4th at p. 722.)

III.  The Hearing Officer's Finding Providing Statutory Justification for Substitution Is Supported By Substantial Evidence

            As stated above, the hearing officer found that UUI " failed or refused to execute a written contract within a reasonable time for the scope of work specified in its bid and at a price specified in its bid based upon the general terms, conditions, plans and specifications for the project as presented to [UUI by Sundt]."  In its analysis supporting that finding, the hearing officer stated:  " The prime contractor, [Sundt,] provided a written contract to [UUI] incorporating the general terms, conditions, plans and specifications for the New Skilled Nursing Facility project on January 17, 2005[,] with a requested return date of January 24, 2005.  As of January 24, 2006, UUI had not returned the executed contract to [Sundt].  The time allowed for UUI to return the contract to [Sundt] was seven days.  Considering the project was bid on December 7, 2004[,] and the prime contract was awarded to [Sundt] on January 12, 2005, the failure of UUI to act to execute and return the contract to [Sundt] by the requested date of January 24, 2005[,] appears to clearly meet the definition set out in Public Contract Code section 4107[, subd.] (a)(1) for allowing substitution of subcontractor.  A full month-and-a-half transpired between the time the bid was submitted by UUI and the time it was required by the prime contractor to return an executed contract.  This appears more than 'a reasonable opportunity' as described in the cited code section for the subcontractor to resolve any outstanding issues it had with the prime contractor.  The subcontractor's failure to do so clearly meets the definition for substitution described in the statute."    

            UUI contends this finding, and the hearing officer's underlying analysis to support that finding, ignores certain facts and permits what the drafters of section 4107 sought to avoid by allowing Sundt to ignore UUI's bid and try to force UUI to sign a " one-sided contract" that assertedly disregarded previously agreed-upon bid conditions.  Specifically, UUI maintains the hearing officer ignored the fact that Sundt's subcontract in many respects contradicted UUI's bid conditions, all of which Sundt had already accepted when it listed UUI as a subcontractor, and that Sundt's subcontract was not " for the scope of work specified in the subcontractor's bid" (§  4107, subd. (a)(1)), thus justifying UUI's refusal to execute it.

            We reject the premise of UUI's argument, namely, that Sundt's subcontract ignored or contradicted its bid conditions, and thus was not " for the scope of work specified in the subcontractor's bid" under section 4107, subdivision (a).  In fact, the subcontract Sundt forwarded to UUI for execution on January 17, 2005, includes each of UUI's 16 bid conditions verbatim (including bid condition No. 3), listed either in a " MISC ITEMS" section on page 3 of Sundt's subcontract, or under the heading, " Excluded from the Scope of Work are the following:" on page 5 of the subcontract.^[5]  As for the items listed under the exclusions section, UUI characterizes Sundt's subcontract as excluding its exclusions.  No extrinsic evidence was considered by the County hearing officer as to Sundt's exclusion section.  Exercising our ability to interpret the " exclusion" section of Sundt's subcontract as a matter of law (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866), we do not agree with UUI's characterization.  To the contrary, the subcontract is reasonably interpreted as incorporating UUI's conditions as items to be excluded from the scope of work.  On its face, the subcontract Sundt proffered to UUI for execution incorporated all of UUI's bid conditions, including bid condition No. 3, reading:  " Bid based on UUI completing their phase of work before other trades being [sic] work other than grading."   We therefore disagree with UUI's argument that the hearing officer's findings violated the spirit of section 4107 by permitting Sundt in its subcontract to " pick and choose" among the elements of UUI's bid, and substitute UUI when it did not agree to sign the subcontract. 

            The limited question before us is whether substantial evidence in the record supports the hearing officer's finding as to UUI's refusal to sign a written contract " for the scope of work specified in its bid and at a price specified in its bid based upon the general terms, conditions, plans and specifications for the project," which alone provides a statutory basis for Sundt to substitute UUI with another subcontractor.  (§  4107, subd. (a)(1).)  UUI does not challenge those elements of the hearing officer's finding that " UUI . . . failed or refused to execute [Sundt's proffered subcontract] within a reasonable time," or that Sundt's subcontract was " based upon the general terms, conditions, plans and specifications for the project."  As a consequence, our conclusion above ends the substantial evidence inquiry.  Because we have concluded based on the face of Sundt's subcontract that it constituted a " written contract . . . for the scope of work specified in [UUI's] bid," the subcontract itself provides substantial evidence for the hearing officer's finding that " UUI failed or refused to execute a written contract within a reasonable time for the scope of work specified in its bid and at a price specified in its bid based upon the general terms, conditions, plans and specifications for the project as presented to UUI by the prime contractor, [Sundt]."   That finding provides a proper basis for UUI's substitution under section 4107, subdivision (a)(1).

IV.  UUI's " Clarification" as to Timing and Its Request for Exclusive Access Were Modifications Not Included Within UUI's December 7, 2004 Bid

            We turn to the question that was the main focus of the County hearing officer at the administrative hearing, that is, whether UUI's bid included the terms that UUI was to have access to the jobsite (1) to the exclusion of all other subcontractors other than the grading contractor and (2) for a 20 week period, or whether those terms were modifications to UUI's bid.  As to this issue, the hearing officer found " UUI's post-bid clarification dated 12/8/04 of bid qualification #3, which required Sundt to give UUI exclusive use of the site for 20 weeks, was a modification to UUI's bid that was not allowed under the terms and conditions of the 'Instructions to Bidders' to hold bids open for 90 days."

A.  20-Week Period for Completion

            UUI admits that the 20 week timing issue arose after Sundt's acceptance of its bid conditions; it argues that even after Sundt's acceptance, a " question that remained was the length of time UUI would need to complete its phase of work."   UUI argues it submitted a " clarification" of its bid condition No. 3 to Sundt on December 8, 2005, advising Sundt that UUI would need 20 weeks (100 working days) to complete its work on the project.  It argues that if this 20-week term was a modification, the dispute was resolved during a meeting between UUI and Sundt in mid-January.  UUI's claim that the issue of timing was somehow resolved, however, is premised on facts outside the administrative record (specifically, the declaration of Mike Harness, which was not before the hearing officer, see footnote 2, ante), and thus we cannot consider it.  (See Valley Crest Landscape, Inc. v. City Council, supra, 41 Cal.App.4th at p. 1443.)  Reversal is not compelled by Sundt's refusal to incorporate the 20 week term or its insistence that UUI agree to " complete the work in accordance with Sundt's project schedule," a term that UUI's principle expressly acknowledged in submitting its bid.^[6]   

B.  Exclusive Access to Jobsite

            UUI argues differently with respect to the term of exclusive use of the jobsite.  It argues that regardless of the amount of time it would have needed to complete its work, the language of bid condition No. 3 already made it clear that UUI required exclusive access to the job site; that there is no difference between " sole use of the jobsite" and the condition that UUI must " 'complet[e] [its] phase of work before other trades [begin] work.' "   UUI maintains that its clarification as to exclusive use was not a modification of its bid but rather was a term already accepted by Sundt when it listed UUI as a subcontractor, and the hearing officer's finding to the contrary cannot be supported.  We disagree. 

            In deciding whether substitution was justified under section 4107, we ask whether UUI's December 7, 2004 bid language, which Sundt included in the subcontract, could reasonably be interpreted to require UUI's exclusive access to the jobsite.  Resolution depends upon principles of contract interpretation.  If the hearing officer interpreted the bid language without resort to extrinsic evidence, our review is de novo.  If, on the other hand, the hearing officer was presented with conflicting extrinsic evidence to aid in its interpretation, we will uphold a reasonable construction of the contractual language if that construction is supported by substantial evidence.  (See Argonaut Ins. Co. v. Transport Indem. Co. (1972) 6 Cal.3d 496, 502; In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747.)  Further, " '[w]hen a dispute arises over the meaning of contract language, the first question to be decided is whether the language is " reasonably susceptible" to the interpretation urged by the party.  If it is not, the case is over.  [Citation.]  If the court decides the language is reasonably susceptible to the interpretation urged, the court moves to the second question: what did the parties intend the language to mean?'  [Citations.]  Whether the contract is reasonably susceptible to a party's interpretation can be determined from the language of the contract itself or from extrinsic evidence of the parties' intent.  [Citation.]  Extrinsic evidence can include the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties."   (Cedars-SinaiMedicalCenter v. Shewry  (2006) 137 Cal.App.4th 964, 980-981.) 

            The hearing officer in the present case heard arguments of counsel as to the parties' conflicting interpretations, as well as the statements (albeit unsworn) of Sundt's project director as to the nature of the contract and his understanding of UUI's bid language.  In support of its finding that UUI's December 8, 2004 terms constituted modifications, the County hearing officer explained:  " The written evidence and oral testimony of representatives of [Sundt] showed that Sundt's interpretation of the original, somewhat vague, bid condition submitted by UUI was that they would need to have exclusive access to the portions of the jobsite in which they were working before other trades would begin work in those areas.  Such interpretation would appear consistent with normal coordination challenges presented to general contractors on large construction sites.  However, the exclusive use of the entire jobsite by UUI was not considered reasonable, nor practical, by the general contractor to be able to meet the overall job schedule.  Testimony indicated that construction industry standard practice is to coordinate the activities of multiple subcontractors on a jobsite, rather than grant exclusive use to a single subcontractor.  Sundt's interpretation of UUI's condition #3 appears reasonable and consistent with industry standard."  Underlying the hearing officer's finding as to modification was an interpretation of bid condition No. 3 as not requiring or encompassing UUI's exclusive use of the entire jobsite during its work.

            Contrary to UUI's assertions otherwise, we conclude the hearing officer's interpretation of UUI's bid condition No. 3 – based on the extrinsic evidence it considered at the hearing – is both reasonable and supported by substantial evidence.  First, as a de novo matter (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165), we conclude that bid condition No. 3, which says nothing about sole or exclusive use of the entire job site, is reasonably susceptible to Sundt's interpretation that UUI would be given unrestricted access to those portions of the jobsite in which it was working at the time, but not the entire site.  UUI has not persuaded us that the bid language supporting its position is so clear that extrinsic evidence would be inadmissible to refute it.  (Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 862.)

            Second, there is substantial evidence supporting the hearing officer's interpretation of UUI's bid language.  Such evidence must be relevant evidence of ponderable legal significance that is reasonable in nature, credible and of solid value.  (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633; Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583.)  The parties, through the arguments of counsel, presented their respective interpretations of UUI's bid condition No. 3.  Sundt's counsel stated:  " UUI submits a [sic]offer to do the work for a certain price and with certain conditions on it to Sundt.  Sundt looks at it puts it in its bid gets its bid conditions.  UUI is presenting a written document to Sundt they are the receivers of something and they have the right to interpret that document consistent with the words that are there and their experience in the construction business.  That's what they did.  They look at [bid condition No.] 3 at the time of the bid and they look at it and say the guy wants to be on the site, he doesn't want anybody interfering with his work, that's certainly reasonable.  I mean that, that is an understanding that even Sundt would agree to.  They don't want to have one subcontractor interfering with the work of another.  Why because its [sic]contentious it is inefficient it causes a lot of trouble and so on.  That's why contractors put schedules together so that we don't have that kind of problems. [sic]  [S]o the information provided by UUI doesn't raise a flag about the exclusivity when the bid is submitted because if you look at that thing it doesn't say, the word sole doesn't appear there, the word exclusive doesn't appear there, in fact in one situation he's saying yeah I can, ill [sic] work with the grader so there's at least on its face an impression that UUI's willing and understands the construction process to the fact that there has to be coordination there has to be schedule there has to be an ability to work with others on a site like this and to get the job done."   Sundt's counsel argued Sundt did not understand UUI's offer to include sole and exclusive access to the site; that Sundt " received it and looked at it interpreted it within their own experience they saw it as yeah the guy the guy wants to be out there and he doesn't want to be impacted.  We understand that we will give him blocks of areas well [sic] coordinate."  

            Sundt's project manager, Willis Locke, also explained:  " Well first of all I've been in construction for 29 years and I've never not one sub's ever [sic] had exclusive use of the site I mean if that's the case than ill [sic] be turning this building over in about 6 years.  So, I mean it just doesn't work like that and no matter how hard you try you do need the other trades on the site, you need a surveyor iv [sic] got to have electrical going I've got to have underground going it just doesn't . . . work like that everybody has a block of time but that doesn't mean they get the block of time exclusively."

            UUI did not object during the hearing to the informal nature of the proceeding or counsel's competency to provide evidence by way of argument to the hearing officer, nor did it object to Locke's competency to provide opinion testimony, expert or otherwise, about the practices in the industry.  Accordingly, any objections on these grounds were waived.  (Jaramillo v. State Bd. for Geologists and Geophysicists  (2006) 136 Cal.App.4th 880, 893; Tennant v. Civil Service Commission (1946) 77 Cal.App.2d 489, 498.)  Having viewed the evidence in the light most favorable to Sundt, disregarding contrary evidence (See Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 787), we conclude counsel's recitation of his client's understanding and Willis Locke's statements indicating it was normal practice to coordinate trades on the site provide substantial evidence to support the hearing officer's conclusion.

DISPOSITION

            The order is affirmed.          

O'ROURKE, J.

WE CONCUR:

                          McCONNELL, P. J.

                                          BENKE, J.

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^[1]           All statutory references are to the Public Contract Code unless otherwise stated.

^[2]           We take the underlying facts and procedure from unchallenged findings of the County hearing officer and court order denying UUI's petition, as well as other matters included in what we can determine is the administrative record.  (JKH Enterprises v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1050, fn. 1.)  UUI includes in its appendix declarations of Ted Woolridge, Mike Harness and Valerie Harness, arguing we may consider them under the authority of former California Rules of Court, rule 5.1(b)(5) (now Cal. Rules of Court, rule 8.124(b)(5)), which provides that " [a]ll exhibits admitted in evidence or refused are deemed part of the appendix, whether or not it contains copies of them."   However, that these declarations are deemed part of the record does not mean we are required to consider them, particularly where the superior court excluded them from its consideration, as it did here.  Under the circumstances, any consideration of those declarations, which were not before the hearing officer, would be limited to an argument that the administrative hearing was procedurally unfair and that the superior court erred in refusing to admit or consider them in deciding UUI's writ petition.  (See Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170, fn. 17.)  UUI has not made such arguments.  Thus, our review is limited to those matters appearing in the administrative record before the hearing officer.  (JKH Enterprises, at p. 1055, fn. 8.)  UUI's briefs rely heavily on statements made in those declarations, which we disregard as outside the administrative record.

^[3]           UUI points out County's letter is misdated December 6, 2004, and states its actual date should be between January 24, 2005 and February 4, 2005.

^[4]           The other circumstances, not raised here, are where the subcontractor (2) becomes bankrupt or insolvent; (3) fails or refuses to perform his or her subcontract;
(4) fails or refuses to submit, on request, faithful performance and payment bonds;
(5) is listed as the result of an inadvertent clerical error; (6) is unlicensed; (7) performs in an unsatisfactory manner; (8) is ineligible to work on a public works project; or
(9) is not a responsible contractor.  (§  4107, subd. (a).)

^[5]           In an exhibit attached to its opening appellate brief, UUI has set out those areas in which it claims Sundt's subcontract contradicted its bid conditions.  For example, pointing out its bid conditions excluded sawcutting and inspections or testing, UUI asserts the subcontract included sawcutting and various kinds of inspections and testing.  It is true that the " Scope of Work" provisions in Sundt's subcontract referred to " saw-cutting of curbs, gutters, sidewalks, and pavements, etc.," and " certified inspection and testing reports for pressure and flushing of water lines as required."   However, Sundt specifically acknowledged, " Bid excludes . . . sawcutting" and " Bid does not include . . . any . . . type of testing" in its " Excluded from the Scope of Work" section. 

^[6]           UUI appears to concede the lack of reversible error when it states:  " Had Sundt incorporated all of UUI's bid conditions, including the [sic] UUI's exclusive use of the site, but excluding the 20 week clarification, which was not part of UUI's bid, UUI would have been forced to sign the contract and then live with and work in accordance to [sic]Sundt's yet undisclosed schedule for completing its work."