By Tony Morelli, Southwestern Regional Compliance Manager. -
For the last eight Months, CIFAC has been engaged in an on-going battle with the City of Huntington Park concerning the illegal contract award of the construction of their Aquatic Center and Related Amenities Project, located within Salt Lake Park.
The City awarded a Design-Build (DB) contract to an unregistered contractor during their August 6, 2019, City Council Meeting. Unfortunately, they overlooked the part about prequalification, advertising, establishing evaluation criteria, short-listing of proposed firms, and the entire bidding process as required by California’s Public Contract Code.
How it all started
The demolition of the old concrete skate park and site preparation commenced in late 2019. In early May of 2020, an anonymous reporting party (RP) reached out to me with concerns about prior city actions that they felt may have taken advantage of its citizens. The RP suggested that perhaps CIFAC might want to take a closer look at this project.
The investigation begins
At the August 6, 2019, City Council meeting, the City Manager’s staff report indicated to the Council “Staff had met with contractors who are known to specialize in the aquatic construction field and determined that a viable option for project delivery would be to utilize a design-build project delivery method.” His report further stated, “In house engineers prepared a summary and determined that the cost estimate to be in the $31 million range”. Missing in this report was any mention of advertising or bidding for DB proposals or a bidder’s summary showing a best value/cost comparison. At this same meeting, the City Council approved a motion and awarded the $24 million dollar project to a contractor.
Since I was unable to locate the Department of Industrial Relations PWC 100 form, contractor registration, or any advertising or noticing regarding the bidding of this project online, I sent a California Public Records Act (CPRA) request on May 5th to obtain documents. I wanted to see a list of the DB firms who provided proposals, the City’s evaluation criteria and ranking process that was used, in addition to other compliance requirements. Per the California Public Records Act, the City had ten days to respond.
Let the games begin
Initially, I received no response or documents from my CPRA request. On June 1st, I received the first of many emails from the City’s contracted law firm responding on the City’s behalf. Their counsel advised of delays in responding to CIFACs request, citing that due to COVID-19 and the stay at home orders, the City had minimal staffing and indicated that they would respond to our requests within forty-five days. The following day, I informed the City and their counsel, that neither the Governor nor the State Legislature acted to limit or delay the rights provided by the CPRA. I demanded the City comply with its obligations under the CPRA and State Constitution to provide the seven requested documents or CIFAC would likely pursue legal action.
To pacify CIFAC’s request, on June 11th, the City’s counsel sent copies of three of the seven requested documents, but missing were the critical ones pertaining to; advertising, evaluation criteria and firms who submitted proposals. Their counsel advised that they would continue to roll-out documents hereafter and anticipated that all documents would be ready for CIFAC’s review by July 15, 2020. Of course, as suspected, on July 15th, I received a letter from their Counsel indicating, “There are no documents responsive to this (your) request.” That validated what I had suspected all along. The City didn’t have any documents because they failed to advertise or bid out the project in accordance with the law and instead awarded it to a contractor of their choice.
After consulting with legal counsel, CIFAC decided on a course of action to pursue this blatant violation of California’s bidding laws. After our counsel initiated communications and re-confirmed that the City had no further documents responsive to our CPRA request, CIFAC’s counsel advised the City that they had no legal justification in violating California’s Public Contract Code (PCC) sections 22160, 20162 and 22164 and requested the City to: Stop work on the project immediately, rescind the award to their contractor and competitively bid the project in accordance with the PCC. The City was further advised that if they did not rescind the award and competitively bid the project, the underlying contract would be void and unenforceable.
Construction progress was halted while counsel for both the City and CIFAC continued discussing the issue. The City’s counsel suggested that if the City considered rebidding, the City’s intent to rebid would not be admitting any fault, nor that the City’s actions should not be viewed that your client’s position is correct, etc. (A load of legal hogwash!) Through all of this, CIFAC and our counsel remained steadfast in our position to uphold California’s bidding laws, demanding that the City stop any further construction activity, and properly bid the project. The city agreed to halt construction while they review their options. During this time, the reporting party alerted me that work hours had apparently changed from daytime to nighttime! And lo and behold, work was underway in the wee hours of the night.
As a side note, it was found that the soil was contaminated at the site, equating to additional costs of approximately $2 million!
After exhausting all attempts to resolve the issue between both parties, CIFAC decided that enough was enough and to have its counsel pursue legal recourse through the courts. CIFAC’s counsel filed in California Superior Court, Los Angeles County, a Writ of Mandate pursuant to Code of Civil Procedure section 1085 to cure the failure and refusal of the City of Huntington Park to competitively bid the Aquatic Center project at Salt Lake Park. The City, after notification of our intent to file the writ and with the impending case against them, finally took appropriate action at its December 1, 2020, City Council meeting. The Council unanimously voted to bid the project.
Due to CIFAC’s actions and determination in seeking the only acceptable outcome, contractors will now have an opportunity to bid on the City’s $31 million dollar Aquatic Center project in a fair and transparent manner. To that end, CIFAC will continue to remain engaged and follow the City’s bidding process, to ensure that it remains that way!