Vallco EIR Contract is Illegal Without Competitive Bidding Process by Randy

From: Randy Shingai
Date: Thu, Jun 18, 2015 at 2:57 PM
Subject: ILLEGAL ACTION by the Cupertino City Council on June 16, 2015
To: rsinks@cupertino.org, bchang@cupertino.org, gwong@cupertino.org, svaidhyanathan@cupertino.org, Darcy Paul <dpaul@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>, City Clerk <cityclerk@cupertino.org>, David Brandt Davidb@cupertino.org

Dear City Council and staff,

At the June 16, 2015 Cupertino City Council meeting the City Council voted to authorize the City Manager to execute a consulting contract with David J. Powers and Associates. We believe this is illegal under Cupertino Municipal Code 2.30, because there was no competitive bidding for this contract. Cathy Helgerson brought this issue to our attention.

We believe the exemption from competitive bidding for professional services contracts in City Municipal Code 2.23.130 only applies to a "public works project." Here's the definition of "public works project" in Cupertino Municipal Code 3.23.020:

4. “Public works project” means:

a. The erection, improvement, painting or repair of public buildings and works;

b. Work to protect against overflow of streams, bays, waterfronts or embankments;

c. Street or sewer work except for maintenance or repair thereof;

d. Furnishing supplies or materials for any such project, including the maintenance or repair of streets or sewers.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992)

While EIR work for private development is administered by the same City staff members that usually handle "public works projects", the Vallco Shopping District Planning Area development is a private undertaking by Sand Hill Property Company. Vallco is in no way, shape or form public.

The contract that the City Council authorized with David J. Powers and Associates to perform work in preparation for an EIR for the Vallco Shopping District Planning Area should have been handled under the general procurement rules in Municipal Code 3.22. Those are the rules that apply to the "purchase of supplies, materials, equipment and services." Therefore, the Formal Competitive Bidding Procedures" in 3.22.060 should have been followed, because the amount authorized was well above the dollar threshold specified in 22032(b) of the CA Public Contract Code.

The City Council's action to authorize the City Manager to execute a contract with David J. Powers and Associates is an illegal action. You must rescind this action to comply with Cupertino Municipal Code 3.22.

The City may decide to argue that the Vallco EIR work should be handled under the "public works project" rules, but we believe that courts would want to know what the public interest is in doing so. Since more than a dozen people wrote e-mail and/or complained in person about the lack of transparency in the selection of David J. Powers and Associates by the City, we think a good case can be made that the public's interest was not served by circumventing the competitive bidding procedures. We can also point to prior instances where the competitive bidding process was used to select consultants for public works projects by the City even though the City was not legally required to do so.

RFP for General Plan Amendment and Rezoning

General-Plan-Amdmt-EIR-RFP-2012-11-05.pdf

RFP for Climate Action Plan: Community Engagement and CEQA Support

RFP Climate Action Plan 2013-11-15.pdf

We will file a formal appeal on Tuesday of next week if we do not receive an indication from the City of Cupertino that the City will rescind the action taken by the City Council to authorize the City Manager to execute a consulting contract with David J. Powers and Associates. Please save us all the time and expense of not having to go through that process.

The ball is in your court.

Thanks!

Randy Shingai for Better Cupertino

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On Thu, Jun 18, 2015 at 4:34 PM, Colleen Winchester <ColleenW@cupertino.org> wrote:

Mr. Shingai,

Allow this to respond to your email to City Council.   The contract with David Powers and Associates approved on June 16, 2015, is to prepare the environmental analysis for a private project.  Professional service contracts are exempt from the public bidding process, whether or not it is a public work.  See, Cupertino Municipal Code Section 3.22.070(D).

Thank you for your continued interest in Cupertino.

Colleen Winchester
Assistant City Attorney
City of Cupertino
(408) 777-3404