EEL River Disposal & Resource Recovery Inc. v. County of Humboldt ( 2013 )

Filed 11/5/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
EEL RIVER DISPOSAL AND
RESOURCE RECOVERY, INC.,
Plaintiff and Appellant, A135744
v. (Humboldt County
COUNTY OF HUMBOLDT, Super. Ct. No. CV110352)
Defendant and Respondent.
Appellant Eel River Disposal and Resources Recovery Inc., the lowest bidder on
an exclusive franchise to collect and dispose of solid waste, seeks to compel Humboldt
County (the County), by writ of mandate, to vacate its award of the franchise to real party
in interest, Tom‘s Trash. Appellant contends the award was unlawful because bids were
not evaluated pursuant to the ―lowest responsible bidder‖ requirement implicit in the
phrase ―competitive bidding‖ as used in the governing county ordinance and related
statutes. Rejecting that argument, the trial court denied relief. We shall reverse the
ruling.
FACTS AND PROCEEDINGS BELOW
In 2008, the County enacted Ordinance 2063, which amended Section 521-6,
subdivision (a)(1) and (2), of the Humboldt County Code (Humboldt Code section 521-
6), pertaining to the granting of franchises and permits for the right to collect solid waste
or source-separated materials within the County. Humboldt Code section 521-6,
1
subdivision (a)(1) and (2), which is set forth in its entirety in the margin below,1 provides
that the Board ―may grant partially or wholly exclusive franchises, with or without
competitive bidding,‖ but that ―[b]efore granting an exclusive franchise without
competitive bidding, the Board shall make specific findings as to why the public health,
safety and well-being are best served by proceeding without competitive bidding.‖
Since 1973, the County had awarded an exclusive franchise to collect solid waste
in the Willow Creek area to Tom‘s Trash. However, on September 21, 2010, after
determining that the company was delinquent in remitting franchise fees and otherwise
not in compliance with the terms of its contract with the County, the Board refused to
extend Tom Trash‘s contract, which expired on December 31, 2010. On September 21,
2010, the Board directed the Public Works Department (PWD) ―to competitively bid a
new solid waste franchise in the Willow Creek Area.‖
Because the process of soliciting and evaluating bids for such a franchise was
expected to take several months, and in order to provide for continuous solid waste
collection and disposal in the Willow Creek area during that period, the Board approved
1
“SEC. 521-6. GRANTING OF FRANCHISES AND PERMITS.
―(a) The Board may grant any permit or franchise or enter into any contract with
any person, for the right and privilege of collecting solid waste or source-separated
materials within the County or any portion thereof, or district, to be fixed by the Board
upon such terms and conditions, consistent with this chapter and the Public Resources
Code of the State of California, as the Board may deem for the best interests of the
County, for such period of time as the Board deems advisable, but not to exceed twenty
(20) years.
―(1) If, in the opinion of the Board, the public health, safety, and well-being so
require, the Board may grant partially or wholly exclusive franchises, either with or
without competitive bidding.
―(2) The grant of exclusive franchises shall require that the Board of Supervisors
call and hold a public hearing, for which hearing publication of notice shall be made by
the Board of Supervisors pursuant to Section 6066 of the Government Code. Before
granting an exclusive franchise without competitive bidding, the Board shall make
specific findings as to why the public health, safety and well-being are best served by
proceeding without competitive bidding.‖ (Humboldt Code section 521-6.)
As noted, post, at pages 8 and 9, footnote 4, much of the foregoing language tracks
that of Public Resources Code section 40059, though the two provisions are not entirely
consistent.
2
entering into a ―short-term‖ or interim franchise on the basis of competitive bids. After
the solicitation by the PWD of such bids, the Board granted the six-month interim
franchise to appellant. The interim franchise expired on June 30, 2011.
The legal confusion in this case began with two reports to the Board from the
Director of the PWD recommending that the Board take specified actions necessary to
solicit and evaluate bids for a new long-term franchise. The first report, dated March 3,
2011, recommended that at its next meeting on March 22 the Board authorize the PWD to
issue a request for proposal (RFP) for an exclusive franchise for a service period of
10 years commencing July 1, 2011, with the possibility of a five-year extension. The
report stated that proposals ―will be evaluated based on a number of factors,‖ specifically
including ―responsiveness to the RFP, company qualifications and comparable
experience, financial creditworthiness, acceptance of the franchise terms, and the
company‘s proposed management plan. Service rates will receive a factor of 65% in the
evaluation criteria.‖ The report went on to explain that ―[b]ecause the evaluation
considers criteria beyond strictly pricing, the process is not then a ‗competitive bid,‘ and
certain findings in accordance with Humboldt Code section 521-6[, subdivision] (a)(2)
will need to be made at a public hearing noticed in accordance with Government Code
Section 6066 before the exclusive franchise can be granted.‖
Finally, the March 3 report stated that the findings required by subdivision (a)(2)
of Humboldt Code section 521-6—namely, ―why the public health, safety and well being
are best served by proceeding without competitive bidding‖ —were ―appropriate, and
recommended‖ because ―the proper collection and disposal of solid waste has
environmental, health and safety consequences for residents of this county and, as such,
should only be performed by a firm that has demonstrated experience, capability and
capacity to handle such a responsibility.‖ The Board never made the findings required by
Humboldt Code section 521-6, subdivision (a)(2), in order to proceed ―without
competitive bidding‖ because it ultimately decided to employ a competitive bidding
process.
3
The RFP for an exclusive franchise for the collection of solid waste in the Willow
Creek area was approved by the Board on March 22, identified six criteria to be
considered by the review committee, specified the weight to be given each criterion, and
stated that the scoring of individual bids ―will reflect the extent to which the criteria are
fulfilled relative to other proposals.‖ The criteria and corresponding weights assigned to
each are as follows: ―Responsiveness to RFP 5%; [¶] Company qualifications and
comparable experience 10%; [¶] Financial creditworthiness 5%; [¶] Acceptance of RFP
and franchise terms (evaluation of exceptions) 5%; [¶] Evaluation of management plan
10%; [¶] [and] Service rates 65%.‖
The second report from the Director of the PWD, which was made on May 13,
2011, after the sealed bids were opened, informed the Board that the four proposals
received by the review committee had been evaluated and scored, and appellant had
received the highest total score on the criteria listed in the RFP. On that basis, the report
recommended that at its next meeting on May 24 the Board award appellant the 10-year
exclusive franchise.
The Director‘s May 13 report also addressed the statements in his March 3 report
that, because the process of evaluating bids ―considers criteria beyond strictly pricing,‖ it
is not ―competitive bidding,‖ and therefore the findings required by Humboldt Code
section 521-6, subdivision (a)(2), would need to be made at a noticed public hearing. The
Director stated that his earlier statement ―directly contradicts the intent of Section 521-
6(a)(2) and staff is returning to the Board to clarify and correct that statement. The RFP
process used by the department for this exclusive franchise was a competitive bid as
detailed below. Consequently, findings are not necessary.‖ (Italics added.) The process
employed was ―competitive bidding,‖ the Director explained, because the evaluation of
the four proposals by the review committee ―was based on a number of factors including
responsiveness to the RFP, company qualifications and comparable experience, financial
creditworthiness, acceptance of the franchise terms, and the company‘s proposed
management plan . . . [and] [s]ervice rates received a factor of 65% in the evaluation
criteria.‖
4
The May 13 report stated that appellant proposed the lowest service rate, the
criterion weighted most heavily, and scored highest or tied for highest on each of the five
other criteria, although the scores were very close. Blue Lake Garbage‘s score was
second, and Humboldt Sanitation & Recycling Co. and Tom‘s Trash tied for last.
Finally, under the heading ―ALTERNATIVES TO STAFF RECOMMENDATIONS,‖ the May
13 report stated: ―The Board could [at its May 24 hearing] choose not to award the
exclusive franchise to Eel River Disposal and Resource Recovery, Inc. If the Board so
chooses, they [sic] can evaluate the proposals on the same basis as the evaluation criteria
outlined in the RFP and award the exclusive franchise to one of the other companies.‖
A day or two before the May 24 Board meeting, Supervisor Ryan Sundberg,
whose district included the Willow Creek area, distributed packets to other members of
the Board containing 14 letters from residents of his district supporting award of the
franchise to Tom‘s Trash.
At the commencement of the Board hearing on award of the franchise, the
Director made the case for awarding the franchise to appellant, emphasizing that in the
minds of the three members of the review committee (himself and two other employees
of the PWD) the company ―hit all the buttons.‖ It not only ― scored 100% on the
evaluated criteria identified in the RFP,‖ but also offered ―the lowest cost to the
community and a reasonable cost for adding curb-side recycling availability to the
community and even with the curb-side recycling, they are still the lowest cost provider.‖
Supervisor Sundberg then moved to award the franchise to Tom‘s Trash. The
motion was seconded, and the Board heard brief statements from the owner and an
employee of Tom‘s Trash and several residents of the Willow Creek area urging award of
the franchise to Tom‘s Trash, and the owner and an employee of appellant urging award
of the franchise to appellant. The gravamen of the testimony in favor of Tom‘s Trash
was that its earlier loss of the franchise for failure to remit franchise fees resulted from
the negligence and criminal conduct of a former bookkeeper and this was no longer a
problem, residents of the Willow Creek area had long had and still wanted a locally-
based service provider who knew customers personally and employed local residents,
5
residents were very satisfied with the service provided by Tom‘s Trash, and that the
service provided by appellant during the interim period in which it served the area was
deficient in several ways. The owner and operations manager of appellant testified that
the company was based in Humboldt County and had for 27 years provided residents of
towns in the county ―impeccable service,‖ had ―never heard‖ the ―allegations‖ made at
the hearing or received any complaints; it also provided certain free services for residents,
and would continue to respond positively for requests for special assistance from seniors
and others in need.
At the close of testimony, County Counsel pointed out that the purpose of the
noticed hearing was to vote on the six ―recommendations‖ made to the Board by the
Director. 2 Because the purpose of Supervisor Sundberg‘s motion was to reject the
Director‘s third recommendation to award the franchise to appellant, and award it instead
to Tom‘s Trash, County Counsel suggested the motion be amended to clarify this
intention. She also suggested that recommendations four, five and six should also be
modified to effectuate the intention to reject the Director‘s proposal to award the
2
The Director‘s six recommendations to the Board were as follows:
―1. Open a public hearing and receive the staff report and public comments on the
proposed awarding of exclusive franchise agreement for the Willow Creek Area to Eel
River Disposal and Resource Recovery, Inc. for the period July 1, 2011 to June 30, 2021
and to establish a rate schedule for the Willow Creek Area.
―2. Close the public hearing.
―3. Award the exclusive franchise to Eel River Disposal and Resource Recovery,
Inc. for obtaining the highest percentage score after evaluation of proposal by the review
committee.
―4. Approve proposed rate adjustments for services.
―5. Authorize the Chair to sign the Notice of Award/Certificate of Acceptance . . .
and direct the Public Works Department to require the Eel River Disposal and Resource
Recovery to execute the Certificate of Acceptance of Contract within two weeks
following the granting of the franchise.
―6. Delegate authority to the Public Works Director to execute an exclusive
franchise agreement with the approved rate and on the terms and conditions set forth in
the franchise agreement . . . with the Eel River Disposal and Resource Recovery, Inc.
upon approval of the agreement by County Counsel and review and approval of insurance
certificates by Risk Manager.‖. . . .
6
exclusive franchise to appellant and award it instead to Tom‘s Trash. County Counsel
recommended that the motion also be amended to include a statement that the Board has
evaluated the criteria outlined in the RFP and finds it is ―in the best interests of the
County to award the exclusive franchise to Tom‘s Trash.‖ At the June 27 hearing in the
Humboldt County Superior Court, county counsel explained the gist of the foregoing
suggestions: ―Look[,] if you are going to award it to Tom‘s Trash, include in the motion
that you‘ve evaluated the criterion [sic], you find it is in the best interest of the County.
And also recommendations four, five and six on the Board report, you do have to put
Tom‘s [Trash] in instead of [appellant][;] otherwise the Board would have awarded it to
Tom‘s [Trash] and told the chair and the public works director to go ahead and sign the
contract with [appellant].‖
Supervisor Sundberg, and Supervisor Clendenen, who seconded the motion,
agreed to the modifications suggested by county counsel, and the motion passed by a vote
of 4-to-1.
Although Supervisor Sundberg‘s motion was orally amended by the statement that
that the Board had evaluated the criteria outlined in the RFP and found that award of the
franchise to Tom‘s Trash was in the best interests of the County, the Board made no
changes in the PWD review committee‘s scoring of bidders relative to the criteria
specified in the Board-approved RFP. The County admits that, as alleged in the petition,
a ―substantial reason‖ for awarding the exclusive franchise to Tom‘s Trash ―was that
Tom‘s was a local employer in Willow Creek and that [appellant] was not.‖ The four
supervisors who voted to pass Supervisor Sundberg‘s motion at the May 24, 2011 hearing
all indicated the view that local ownership of Tom‘s Trash and its employment of several
local residents outweighed the fact it was not the lowest bidder, and this was the chief
reason they voted for the motion.
On June 8, 2011, appellant filed a verified petition for writ of mandate and
complaint for declaratory relief (Code Civ. Proc., §§ 1085, 1060) in the superior court
seeking a peremptory writ mandating that the County (1) award the exclusive franchise at
issue ―to the entity scoring the highest under the criteria under the RFP process in the
7
competitive process established [by Humboldt Code section 521-6]‖ and
(2) ―immediately vacate its vote awarding the [franchise] to Tom‘s Trash, an entity which
did not receive the highest score in the competitive bid RFP process.‖ The complaint
alleged that, having elected to proceed by a competitive bid process, Humboldt Code
section 521-6 imposed upon it a legal duty to award the exclusive franchise to the lowest
responsible bidder, and the County represented that it would discharge that duty pursuant
to the process and evaluative criteria set forth in the RFP. The complaint sought a
declaration to that effect under Code of Civil Procedure section 526, subdivision (a), as
well as a declaration that the vote awarding the franchise to Tom‘s Trash, taken after not
complying with the competitive bidding process mandated by Humboldt code section
521-6 and specified in the RFP, was ―null and void.‖ Finally, the complaint sought
recovery of costs and reasonable attorney fees incurred in the action, and such other relief
as the court deemed just and proper.
On April 18, 2012, after conducting a hearing, the superior court issued a nine-
page order denying appellant‘s request for writ of mandate and declaratory relief. On
May 3, 2012, the court entered judgment denying the relief sought by appellant and
awarding costs to the County.
Timely notice of this appeal was filed on June 15, 2012.
THE TRIAL COURT RULING
In large measure, the language of Humboldt Code section 521-6 (set forth, ante, at
p. 2, fn. 1) tracks that in Public Resources Code section 40059, a provision of the
Integrated Waste Management Act of 1989 (§§ 40050-49620) (the 1989 Act).3 As
material, section 40059 authorizes a Board of Supervisors, upon a finding that that ―the
public health, safety or well-being so require,‖ to grant a ―partially exclusive or wholly
exclusive franchise . . . either with or without competitive bidding.‖4 Like the county
3
All untitled section references are to the Public Resources Code.
4
Despite the similarities between Humboldt Code section 521-6 and section
40059, the two measures are different in one significant respect. Unlike Humboldt Code
section 521-6, section 40059 does not require a county wishing to proceed without
8
ordinance, section 40059 uses the phrase ―competitive bidding‖ but does not explicitly
indicate whether the phrase embodies a ―lowest responsible bidder‖ requirement, as
appellant maintains.
The trial court appears to have accepted, as we do, that a ―responsible bidder‖
―means a bidder who has demonstrated the attribute of trustworthiness, as well as quality,
fitness capacity, and experience to satisfactorily perform the public works contract.‖
(Pub. Contract Code, § 1103 [codifying language in City of Inglewood-L.A. County Civic
Center Auth. V. Superior Court (1972) 7 Cal.3d 861, 867) (City of Inglewood)]; see also
Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425,
1450-1452; Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195
Cal.App.3d 1331, 1341-1343; American Bar Association (ABA), Section of Public
Contract Law, Model Procurement Code for State and Local Governments (2000), § 3-
101 [a responsible bidder possesses ―the capability in all respects of bidders to perform
fully the contract requirements, and the integrity and reliability which will assure good
faith performance‖]; 10 McQuillin, Municipal Corporations (3d rev. ed. 2009) § 29:81, at
pp. 644-656.) Thus, the ―lowest responsible bidder requirement‖ imposes on
governmental agencies that solicit bids for public contracts a duty to evaluate bidders‘
possession of such attributes in a reasonable way on the basis of specified criteria timely
made known to bidders and the general public. The lowest bidder is not necessarily the
lowest responsible bidder. (City of Inglewood, supra, 7 Cal.3d at p. 867.)
The trial court first addressed appellant‘s contention that the ―lowest responsible
bidder‖ requirement was compelled by sections 49200 and 49201, provisions of the 1989
competitive bidding to make findings ―as to why the public health, safety and well-being‖
are best served by doing so. The statute requires such findings only if the governmental
agency wishes to grant a franchise or contract that is partially or wholly exclusive,
regardless whether a competitive bidding process is employed. Perhaps understandably,
because section 40059 is badly drafted and somewhat confusing, the drafters of
Humboldt Code section 521-6 seem to have misconstrued the statute. This assumption is
supported by the fact that, although the franchise the County put out to bid in this case
was wholly exclusive, the Board never made the findings required in order to do that.
We do not pursue this issue because appellant has never raised it.
9
Act prescribing the process for awarding franchises for solid waste handling services.
Section 49200 provides that a board of supervisors may grant such a franchise ―only
under the terms and conditions of this chapter.‖ Section 49201, which is most pertinent,
provides, among other things, that ―[u]pon examination by the board of supervisors of the
bids, the franchise may be awarded to the lowest qualified bidder.‖ ( 49201, subd. (c),
italics added.)
The trial court acknowledged that the phrase ―lowest qualified bidder‖ in section
49201 imposed a ―lowest responsible bidder‖ requirement. It found, however, that this
statute conflicts with section 40059, which does not use the word ―responsible‖ or
―qualified‖ and, in the court‘s view, ―clearly allows [the County] to make the award to
someone other than the lowest responsible bidder.‖ As we later discuss, the court
concluded that, because section 40059 commences with the phrase ―Notwithstanding any
other provision of law,‖ it prevails when its application conflicts with section 49201 (see
79 Ops. Cal. Atty. Gen. 28, 33-34 (1996), 1996 WL 179823), which is here the case.
The court next rejected the argument that a ―lowest responsible bidder‖
requirement arose from the fact that on September 21, 2010, the Board directed the PWD
― ‗to competitively bid a new solid waste collection franchise in the Willow Creek
area.‘ ‖ The court stated: ―Unless one assumes that ‗competitive bidding‘ necessarily
entails a ‗lowest responsible bidder‘ requirement . . . there is no evidence that the Board‘s
direction to the PWD was intended to adopt that requirement. The evidence is that the
Board was aware that competitive bidding would be achieved through a [RFP]
process . . . but that evidence is of little help, since an RFP process could very well
include or exclude a ‗lowest responsible bidder‘ requirement.‖5
5
The use by the County of an RFP seems curious. Most government contract
procurement guidelines, and the law in many jurisdictions (see 10 McQuillin, Municipal
Corporations, supra, § 29:33, at pp. 475-476), distinguish between the solicitation of
―bids‖ and the solicitation of ―proposals.‖ For example, the State Contracting Manual
instructs that an Invitation for Bids (IFB) ―seeks an answer to the following: ‗Here is
exactly what we need to have done. Here are the qualification requirements, performance
specifications, time frames, and requirements that must be met. How much will you
10
The trial court relied heavily on the Board-approved RFP. The court was
―persuaded that the Board must not have intended to direct the PWD to adopt a ‗lowest
responsible bidder‘ requirement, because the Board unquestionably approved the RFP
prepared by the PWD that contained no such requirement.‖ Apparently relying on a
provision in the RFP stating that the County ―reserves the right to modify this
[evaluative] process in any way and at any time during the RFP and contractor selection
process,‖ the court agreed with the County‘s argument that ―even if the Board had
initially intended to limit itself to an award based solely on the lowest responsible bidder,
the Board was free to change its mind by adopting an RFP omitting that requirement.‖
Turning to the question whether the ―competitive bidding‖ referred to in
Humboldt Code section 521-6, subdivision (a)(2), contemplates an award to the ―lowest
responsible bidder,‖ the court dismissed the suggestion that ―competitive bidding‖ as
used in Section 521-6, subdivision (a)(2), should be defined by reference to Public
Contract Code section 10180, which relates to the awarding of construction contracts by
state agencies. Public Contract Code section 10180 provides that after opening sealed
charge us?‘‖ (State Contracting Manual, ¶ 5.11 A.) On the other hand, ―An RFP seeks an
answer to the following: ‗Here is what we wish to accomplish. Here are the qualification
requirements, performance specifications, time frames, and other requirements that must
be met. How would you accomplish the job for us and for how much?‘‖ (Id., § 5.15 A.)
Similarly, the Model Procurement Code distinguishes between ―Competitive Sealed
Bidding‖ (§ 3-202), which is most commonly employed, and ―Competitive Sealed
Proposals‖ (§ 3-203), which is used when the appropriate procurement officer
―determines in writing, pursuant to regulations, that the use of competitive sealed bidding
is either not practicable or not advantageous to the [State].‖ Notwithstanding that use of
an RFP indicates otherwise, we assume the solicitation in this case is for bids, not
proposals, because the County is capable of completely defining the scope of work
required. (See 10 McQuillin, Municipal Corporations, supra, § 29:33, at p. 475.)
Ordinarily, the ―lowest responsible bidder‖ requirement is applied to both solicitations for
bids and for proposals. (See State Contracting Manual, § 5.07); ABA, Model
Procurement Code for State and Local Governments, §§ 3-202(5), 3-203(7).) The RFP
with which we are concerned appears to conform to that authorized by Public Contract
Code section 10344, which pertains to state service contracts; county franchises for solid
waste handling services are, however, governed by section 49201, which directs the
county to ―call for bids.‖
11
bids, the department shall ―award the contracts to the lowest responsible bidder.‖ The
trial court refused to consider section 10180 of the Public Contract Code (or section
10344, subdivision (b)(3), of the same Code, which also directs that certain state
contracts be awarded to the ―lowest responsible bidder‖) as extrinsic evidence bearing
upon the meaning of ―competitive bidding‖ because those statutes do not purport to
define ―competitive bidding.‖ (See also Pub. Contract Code, §§ 20128, 20162 [requiring
counties and cities to award certain public contracts to ―lowest responsible bidder‖].)
Construing appellant‘s reliance on the Public Contract Code to include the idea
that ―competitive bidding‖ has a technical or legal meaning that should be applied in lieu
of its ordinary meaning (see Code Civ. Proc., § 16; Arnett v. Dal Cielo (1996) 14 Cal.4th
4, 19 [―when a word used in a statute has a well-established legal meaning, it will be
given that meaning in construing the statute‖]), the court rejected the argument because in
its view the phrase had no such technical or well-established legal meaning. After
―considerable research,‖ the court had been unable to find ―any decision in which a court
interpreted or defined the phrase ‗competitive bidding‘ to include necessarily a ‗lowest
responsible bidder‘ requirement, unless that requirement was also separately stated in the
statute.‖ The court reasoned that if the Board intended subdivision (a)(2) of Humboldt
Code section 521-6 to incorporate a ―lowest responsible bidder‖ requirement, it ―would
have done so either explicitly or by incorporating an appropriate state statute‖ that was
explicit.
In the end, the court concluded that the ―common, ordinary meaning of
―competitive bidding,‖ as that phrase is used in both section 40059 and Humboldt Code
section 521-6, ―would be met by [the governmental agency] having solicited and
evaluated a number of bids submitted in competition for the award of the Franchise,‖ a
standardless definition perceived by the court as relieving the Board of the need to
comply with the requirements set forth in section 49201 or those enunciated in the RFP.
Applying that interpretation of ―competitive bidding,‖ the trial court found ―that the
Board complied with the requirement of section 521-6(a)(2) that [it] utilize ‗competitive
12
bidding‘ in the absence of ‗specific findings as to why the public health, safety, and well-
being are best served by proceeding without competitive bidding.‘ ‖
The court also rejected the contention that the award to Tom‘s Trash was unlawful
because appellant was not treated ―in a fair and equal manner.‖ Citing Cypress Security,
LLC v. City and County of San Francisco (2010) 184 Cal.App.4th 1003, 1010 (Cypress
Security), the court stated that its review was limited to a determination whether the
Board‘s actions were arbitrary, capricious, and entirely lacking in evidentiary support, or
inconsistent with proper procedure, and that appellant had the burden of overcoming the
presumption that the Board‘s actions were supported by substantial evidence. In finding
the decision to award the franchise to Tom‘s Trash supported by substantial evidence, the
court emphasized that the RFP ―made it abundantly clear that (1) the recommendation of
the review committee was not binding on the Board; (2) factors other than those listed in
the RFP could be considered; and (3) that [the Board] ‗reserves the right to act in the best
interest of the County and its residents and businesses, including the right to reject a
proposal that is given the highest ranking in the evaluation process.‖
As we shall explain, the trial court‘s confusing analysis fails to properly inquire
into the ambiguity of the phrase ―competitive bidding,‖ fails to consider substantial
extrinsic evidence bearing upon the meaning of that ambiguous phrase, fails to recognize
that sections 40059 and 49201, which are both part of the 1989 Act and in pari materia,
can readily be reconciled, misapplies Cypress Security, and ignores important policies
regarding the letting of public contracts and settled principles of statutory construction.
As we shall explain, the court‘s ruling renders section 49201, subdivision (c), and
subdivision (a)(2) of Humboldt Code section 521-6 meaningless and vindicates a grossly
unfair bidding process that would invite the very favoritism, fraud and corruption the law
relating to the letting of public contracts is designed to prevent.
THE STANDARD OF REVIEW
―On appeal from the denial of a writ of mandate challenging an award of a public
contract, we perform the same function as the trial court and are not bound by its
determinations. [Citations.] We review the public entity‘s decision for substantial
13
evidence. [Citations.] Our review is limited to a determination of ‗whether the [public
entity‘s] actions were arbitrary, capricious, entirely lacking in evidentiary support, or
inconsistent with proper procedure.‘ [Citations.] In determining these issues, we defer to
the [public entity‘s] factual findings when they are supported by substantial evidence.
[Citation.] To the extent our analysis requires us to decide questions of statutory
interpretation or determine whether the [public entity‘s] actions violate applicable law,
we exercise our independent judgment. [Citations ]‖ (Schram Construction, Inc. v.
Regents of University of California (2010) 187 Cal.App.4th 1040, 1051-1052, fn.
omitted.)
―Because of the potential for abuse arising from deviations from strict adherence
to [competitive bidding] standards . . . the letting of public contracts universally receives
close judicial scrutiny . . . .‖ (Konica Business Machines U.S.A., Inc. v. Regents of
University of California (1988) 206 Cal.App.3d 449, 456 (Konica).)
ANALYSIS
1.
The Phrase “Competitive Bidding” is Ambiguous
In construing statutes and ordinances our task is to ascertain and give effect to the
legislative intent. (People v. Murphy (2001) 25 Cal.4th 136, 142.) ―We begin by
examining the words of the statute, giving them their usual and ordinary meaning and
construing them in the context of the statute as a whole. [Citations.] If the plain language
of the statute is unambiguous and does not involve an absurdity, the plain meaning
governs. [Citations.] If the statute is ambiguous, the court may consider a variety of
extrinsic aids, including the apparent purpose of the statute. [Citation.]‖ (Leonte v. ACS
State & Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 526-527.)
The trial court found that the phrase ―competitive bidding‖ has a plain meaning
and therefore does not need interpretation. According to the court, ―[a]ny common,
ordinary meaning of ‗competitive bidding‘ would be met by Respondent‘s having
solicited and evaluated a number of bids submitted in competition for the award of the
14
Franchise,‖ a definition excludes not just a ―lowest responsible bidder‖ requirement, but
even a ―lowest bidder‖ requirement; indeed, the definition eliminates any requirement at
all. The court‘s analysis, which is really no more than a conclusion, is far too simplistic.
Ambiguity exists when a statute is capable of being understood by reasonably
well-informed persons in two or more different senses. (2A Singer & Singer, Sutherland,
Statutes and Statutory Construction (7th ed., 2007) § 45:2, p. 13) Considered in the
context of the government procurement process, ―competitive bidding‖ is capable of
being understood in two senses: (1) as a process whereby a franchise, contract, license, or
permit shall be awarded on the basis of the lowest bid, and (2) as a process that also takes
into account the qualifications of the bidder, so that the low bid may be rejected if the
bidder does not qualify as a responsible bidder. County‘s Director of Public Works, who
must be deemed a reasonably well-informed government procurement officer, has at
different times adopted each of these different meanings. In his March 3 report to the
Board, he stated that the proposed RFP did not involve ―competitive bidding‖ because it
considered criteria ―beyond strictly pricing,‖ but in his May 13 report he changed his
position, declaring that the same RFP constituted ―competitive bidding,‖ even though the
evaluative criteria it prescribed went beyond merely pricing.
By using the absence in the ordinance of any explicit reference to a ―qualified‖ or
―responsible‖ bidder as the basis upon which to conclude the ordinance imposed no
―lowest responsible bidder‖ requirement—an approach many courts reject 6—the court
6
Where a statute, charter, or ordinance requires a public contract to be let to the
―lowest‖ bidder without qualifying it by the words such as ―responsible,‖ ―qualified,‖ or
―best,‖ many courts have ―held that the provision is not to be ‗construed literally, and
accepted as an absolute restriction,‘ and that it does not mean that the contract must be
awarded to the lowest bidder without regard to his or her fitness, responsibility, or
capacity to perform the work or furnish the supplies.‖ (10 McQuillin, Municipal
Corporations, supra, § 29:81, at pp. 648-649, citing J.W. Rombach, Inc. v. Parish of
Jefferson (La. Ct. of App. 5th Cir. 1996) 670 So.2d 1305; Huey Stockstill, Inc. v. Hales
(Miss. 1998) 730 So.2d 539; Thompson Electronics Co. v. Easter Owens/Integrated
Systems, Inc. (Ill.App.Ct. 3d Dist. 1998) 702 N.E.2d 1016; State ex rel. George Jensen
Printing Company v. Snively (Minn. 1928) 221 N.W. 535; Clapton v. Taylor (1892)
49 Mo.App. 117; International Motor Co. v. City of Plainfield (N.J.L. 1921) 115 A. 391;
15
relieved itself of the need to inquire whether the phrase ―competitive bidding‖ was
capable of being understood by reasonably well-informed persons in different ways. In
essence, the court used the feature of the ordinance rendering the phrase ambiguous as
the basis upon which to conclude it was unambiguous. As a leading treatise observes,
―[t]he assertion in a judicial opinion that a statute needs no interpretation because it is
‗clear and unambiguous‘ is in reality evidence the court has already considered and
construed the Act. It may also signify that the court is unwilling to consider evidence
bearing on the question how the statute should be construed, and is instead declaring its
effect on the basis of the judge‘s own uninstructed and unrationalized impression of its
meaning.‖ (2A Singer & Singer, Sutherland Statutes and Statutory Interpretation, supra,
§ 45:2, p. 16.)
That is what appears to have happened here. The trial court‘s statements that
―competitive bidding‖ does not include a ―lowest responsible bidder‖ requirement and
consists simply of ―having solicited and evaluated a number of bids submitted in
competition for the award,‖ without regard to any evaluative criteria and process, is in
fact a judicial interpretation of the phrase ―competitive bidding.‖ made without regard to
extrinsic evidence bearing on its proper interpretation.
2.
The Phrase “Competitive Bidding” in Humboldt Code Section 521-6
and Section 40059 Must be Construed in Pari Materia with Related Statutes
Applying a “Lowest Responsible Bidder” Requirement t
Where, as here, the statutory language is susceptible of more than one reasonable
interpretation, ― ‗ ― ‗we look to a variety of extrinsic aids, including the ostensible objects
to be achieved, the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory scheme of which the
statute is a part.‘ ‖― ‗ ‖ (People ex rel. Lockyer v. A. J. Reynolds Tobacco Co. (2005) 37
Prime Contractors, Inc. v. Girard (Ohio App. 1995) 655 N.E.2d 411; Kaufman v. City of
Erie (Pa. 1934) 175 A. 406; Pearlman v. City of Pittsburgh (Pa. 1931) 155 A. 118; Krat z
v. City of Allentown (Pa. 1931) 155 A. 116; Wilson v. City of New Castle (Pa. 1930) 152
A. 102.)
16
Cal.4th 707, 715, citing People v. Jefferson (1999) 21 Cal.4th 86, 94.) Our responsibility
is to ― ‗select the construction that comports most closely with the apparent intent of the
Legislature, with a view toward promoting rather than defeating the general purpose of
the statute, and avoid an interpretation that would lead to absurd consequences.‘
[Citations.]‖ (People v. Coronado (1995) 12 Cal.4th 145, 151.) ―In addition, we are
required to harmonize statutes by considering a particular clause or section in ‗the context
of the . . . statutory scheme of which it is part.‘ [Citations.]‖ (Ordlock v. Franchise Tax
Bd. (2006) 38 Cal.4th 897, 909.)
The most edifying extrinsic evidence available as to the meaning of the phrase
―competitive bidding,‖ as it appears in Humboldt Code section 521.6 and section 40059,
consists of other statutes pertaining to the same subject—i.e., statutes in pari materia—or
enacted at the same time.
As we have seen, the language of Humboldt Code section 521-6, subdivision
(a)(2), derives from its use in section 40059. However, although section 40059 is no
more illuminating than Section 521-6 as to whether the ―lowest responsible bidder‖
requirement is implicit in the phrase, other provisions of the 1989 Act are helpful;
particularly sections 49200 and 49201.
Section 49200 provides that ―[e]very franchise or permit for the collection,
disposal, or destruction, or any combination thereof, of garbage, waste, offal, and debris,
shall be granted by the board of supervisors only under the terms and conditions of this
chapter.‖
Subdivisions (a) through (c) of section 49201 define the process by which such
franchises or permits are to be awarded, including the manner in which franchises or
permits bids are to be authorized and bids solicited and evaluated. Subdivision (a)
provides that ―Any county may, by resolution adopted by the board of supervisors, call
for bids for the granting of a franchise or permit, exclusive or otherwise, for the
collection [and] disposal [of garbage and other forms of waste,] according to the terms
and conditions set forth in the resolution, for a period of time not to exceed 25 years.‖
Subdivision (b) states that after adoption of the resolution, the board of supervisors shall
17
provide the public specified notice of ―the terms and conditions in the resolution and the
time, date, and place for the receiving and opening of sealed bids, which shall not be
sooner than four full weeks from the date of the first publication of the notice.‖
Subdivision (c) of section 49201, which is most relevant to our analysis, provides, as
material, that ―[u]pon examination by the board of supervisors of the bids, the franchise
or permit may be awarded to the lowest qualified bidder.‖ (Italics added.) The ―lowest
qualified bidder‖ requirement seems to us, as it did to the trial court, the functional
equivalent of the ―lowest responsible bidder‖ requirement. The trial court did not,
however, find this provision exegetically helpful.
Acknowledging that sections 49200 and 49201 ―clearly require an award to the
lowest responsible bidder,‖ the trial court found it ―inexplicable‖ that section 40059
―clearly allows Respondent to make the award to someone other than the lowest
responsible bidder.‖ (Italics in original.) The court resolved this perceived conflict by
adopting the reasoning of a 1996 Opinion of the Attorney General (79 Ops.Cal.Atty.Gen.
28, supra, 1996 WL 179823) which found a different conflict between the two statutes
and, in that context, concluded that section 40059 prevailed over section 49201. At the
hearing, the trial court quoted the following portion of the opinion in which the Attorney
General explained the significance of the fact that section 40059 commences with the
phrase ― ‗Notwithstanding any other provision of law . . .‘ . . . It is as if the limitations of
sections 49200-49205 do not exist if a county acts pursuant to the grant of authority
contained in section 40059. The Legislature has recognized that the terms of section
40059 may be inconsistent with the language of some other statute or statutes and has
determined that the conflict should be resolved in favor of section 40059‘s terms and
conditions.‖ (79 Ops.Cal.Atty.Gen., at p. 33.) The trial court‘s reliance on this language
was unjustified.
First of all, with respect to the issues before us, the County has acted not just
pursuant to the grant of authority in section 40059, but pursuant to both section 40059
18
and sections 49200-49205,7 all of which are part of the same Act. The Board enacted
Humboldt Code section 521-6 in 2008 pursuant to authority granted by section 40059;
however, the Board approved the RFP on March 22, 2011, pursuant to the prescriptions
set forth in sections 49200 through 49205. Section 40059 is germane to this case only
because it authorizes a county to dispense with ―competitive bidding‖ and appears to be
the basis for Humboldt code section 521-6, which employs the same phrase. The
substance of section 40059 does not bear upon any issue in this case, because the County
did not desire to dispense with ―competitive bidding‖ and therefore never made the
findings required by Section 521-6(a)(2) in order to do so.8 Although they strongly
disagree about the meaning of the phrase, the parties agree that the Board intended to use
and employed a process that constitutes ―competitive bidding.‖
Moreover, and much more importantly, there is no conflict between sections
40059 and 49201 regarding any matter at issue in this case. The ―conflict‖ perceived by
the trial court was one of its own making.
The Attorney General‘s opinion the trial court relied upon addressed the question:
―May a county which awarded an exclusive trash collection franchise in 1982 after
7
In addition to sections 49200 and 49201, which we have described, section
49202 requires the successful bidder to file a bond upon grant of the franchise, section
49203 authorizes the county to impose terms and conditions other than those proposed by
the county not in conflict with that act, and section 49204 permits bidders to propose
terms and conditions that may be in addition to or conflict with those in the resolution or
notice of calling for bids, provided they are not in conflict with Division 30 of the Public
Resources Code. Section 49205 prescribes the allowable extension of franchise terms.
8
Dispensing with competitive bidding may be appropriate and consistent with the
public interest ―where the nature of the subject of the contract is such that competitive
proposals would be unavailing or would not produce an advantage, and the advertisement
for competitive bid would thus be undesirable, impractical, or impossible. [Citations.]‖
(Graydon v. Pasadena Redevelopment Agency (1980) 104 Cal.App.3d 631, 635-636;
accord, League of California Cities CEB, The California Municipal Law Handbook 2012,
§ 7.5 at p. 732 [―competitive bidding requirement may also be waived in the following
situations: in the event of emergency; in contracts for professional services; in contracts
for special services; and when the design-build method is used‖]; 10 McQuillin,
Municipal Corporations, § 29:38, at pp. 497-501.)
19
receiving competitive bids, and which terminated that agreement and executed another
exclusive franchise with the same franchisee in 1985, now terminate the existing
franchise and award a new contract to the same franchisee without obtaining competitive
bids?‖ (79 Ops.Cal.Atty.Gen. 28, supra, 28.) The conflict the Attorney General resolved
resulted from the fact that sections 49200 through 49205 require a county to obtain
competitive bids before awarding a trash collection franchise, whereas section 40059
allows a county to award a trash collection franchise without ever obtaining competitive
bids. The question presented was the necessity for competitive bids, not the nature of the
competitive bidding process. The necessity for competitive bids is not an issue here
because, as we have said, the County never sought to proceed without competitive
bidding, and could not do so under its own ordinance without findings it never made.
The trial court erred in assuming that section 40059 prevails over section 49201
not just as to matters about which they genuinely conflict, but as to all matters. That is
not so. The 1989 Act itself provides that the part in which section 40059 appears ―shall
prevail‖ over the part of the measure in which sections 49200 – 49205 appear, only ―[i]n
the event of any conflict or inconsistency‖ between the two parts of the 1989 Act. (Stats.
1989, ch. 1095, § 32, subd. (c), quoted in 79 Ops. Cal.Atty.Gen., supra, at p. 34; see also
Rodeo Sanitary Dist. v. Board of Supervisors (1999) 71 Cal.App.4th 1443, 1451 [section
40059 only ―overrides or supersedes . . . other provisions of the 1989 Act which might
indicate to the contrary‖], italics added.) The ―lowest qualified bidder‖ requirement of
section 49201 is not in conflict or inconsistent with the references in section 40059 to
―competitive bidding,‖ or with anything else in that statute, which does not relate to the
substantive and procedural requirements of the ―competitive bidding‖ process.
As the Attorney General explains, the legislative history of the provisions now
contained in section 40059 (which were previously contained in Government Code
section 66756, now repealed) shows the measure was designed ―to grant cities, counties,
and other local governmental agencies the authority to determine whether trash collection
services should be ‗provided with or without competitive bidding,‘‖ because previously
―only some agencies could provide such services under contract without obtaining
20
competitive bids.‖ (79 Ops.Cal.Atty.Gen., supra, at p. 33.) The need for the legislation
was created by the opinion of the United States Supreme Court in City of Lafayette v.
Louisiana Power & Light Co. (1978) 435 U.S. 389 (Lafayette), which addressed the
extent to which federal antitrust laws prohibit a state‘s cities from imposing certain
anticompetitive restraints ― ‗as an act of government.‘ ‖ (Id. at p. 391.) As stated in the
report of the Senate Committee on Local Government on the measure now embodied in
section 40059, the holding in Lafayette—that the definition of ―person‖ or ―persons‖
covered by federal antitrust laws included cities—caused concern ―that local agencies
may, in the provision of solid waste disposal services either directly or by contract or
franchise as authorized by existing law, be construed to be subject to federal anti-trust
laws. . . . The [Lafayette] court held that where a local government [agency] provides a
public utility service, such activity may be exempt from the provisions of federal anti-
trust laws only if State law authorizes such anti-competitive or monopoly activity.‖
(Report of the Senate Committee on Local Government on AB 2454 (McVittie), p. 1
(June 16, 1980), italics added.)
Whether the competitive bidding referred to in section 40059 embodies a ―lowest
responsible bidder‖ requirement is irrelevant to the purpose of that statute, which was to
authorize local governmental agencies to decide for themselves whether to award
franchises for solid waste handling services on the basis of ―competitive bidding‖ and
thereby exempt this activity from application federal antitrust laws. Because the nature
of the competitive bidding process a county may require in awarding such franchises was
addressed by the Legislature elsewhere—most specifically in sections 49200 through
49205—there was no need for the Legislature to specify in section 40059 whether the
―competitive bidding‖ process a county may employ in awarding franchises for solid
waste handling services embodies a ―lowest responsible bidder‖ requirement. Since
section 49201 is among the provisions of the 1989 Act defining that bidding process, it
was a more appropriate place than section 40059 for the Legislature to prescribe the
lowest ―responsible‖ or ―qualified‖ bidder requirement.
21
The court‘s conclusion that section 40059 prevails over section 49201 for all
purposes, including the competitive bidding process applicable to franchises for solid
waste handling services, renders section 49201 meaningless, thus undermining the
legislative effort to define the terms and conditions pursuant to which counties may grant
such franchises when, as in this case, they wish to employ a ―competitive bidding‖
process.
Indifferent to the absence of any conflict in the application to this case of sections
49201 and 40059, and the consequences of its ruling, the trial court made no attempt to
reconcile the two provisions of the 1989 Act insofar as they relate to the properties of the
―competitive bidding‖ process applicable to the franchise at issue. While statutes relating
to the same matter or subject are regularly employed as extrinsic aids in interpretation
(see, e.g., Yassin v. Solis (2010) 184 Cal.App.4th 524, 536, citing Altaville Drug Store,
Inc. v. Employment Development Department (1988) 44 Cal.3d 231, 236, fn. 4; Old
Homestead Bakery, Inc. v. Marsh (1925) 75 Cal.App. 247, 258.), ― ‗[a]pplication of the
rule that statutes in pari materia should be construed together is most justified, and light
from that source has the greatest probative force, in the case of statutes relating to the
same subject matter that were passed at the same session of the legislature, especially if
they were passed or approved or take effect on the same day . . . .‘ [Citation.] When as in
the present case both statutes are part of the same bill, enacted and chaptered together, the
rule requiring the courts to reconcile the statutes is even more compelling, for neither can
be viewed as an implied repeal of the other. [Citation.]‖ 9 (International Business
Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 932.)
Sections 40059 and 49201 can easily be harmonized. Statutes and ordinances that
authorize or require competitive bidding in the letting of public contracts ordinarily serve
the purpose ― ‗of inviting competition, to guard against favoritism, improvidence,
extravagance, fraud and corruption, and to secure the best work or supplies at the lowest
9
Section 40059 is in Division 30, Part 1 of the Public Resources Code, and
sections 49200 through 49205, are in Part 8 of that Division of the same Code, but all of
these statutes were added by Statutes 1989, chapter 1095,section 22.
22
price practicable.‘‖ (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161,
173 (Domar).) Such measures ―are enacted for the benefit of property holders and
taxpayers, and not for the benefit of or enrichment of bidders, and should be so construed
and administered as to accomplish said purpose fairly and reasonably with sole reference
to the public interest. These provisions are strictly construed by the courts, and will not
be extended beyond their reasonable purpose. Competitive bidding provisions must be
read in the light of the reason for their enactment, or they will be applied where they were
not intended to operate and thus deny municipalities authority to deal with problems in a
sensible practical way.‘ [Citation.] Thus, charters requiring competitive bidding are not to
be given such a construction as to defeat the object of insuring economy and excluding
favoritism and corruption. [Laws] requiring competitive bidding are not to be given such
a construction as to defeat the object of insuring economy and excluding favoritism and
corruption. [Citations.]‖ (Ibid.)
Section 40059 is not designed to encourage or require ―competitive bidding,‖ but
merely to allow counties to decide for themselves whether to award franchises for solid
waste handling services through a ―competitive bidding‖ process. Sections 49200
through 49205, on the other hand, assume that, as here, the county has decided to employ
a ―competitive bidding‖ process, and address the manner in which the process must be
carried out, including use of a ―lowest responsible bidder‖ requirement. The ―lowest
qualified bidder‖ requirement of section 49201 serves the purposes of insuring economy
and eliminating fraud and corruption in a competitive bidding process, while section
40059 is silent as to whether ―competitive bidding‖ includes a ―lowest responsible‖ or
―qualified bidder‖ requirement. It seems to us absurd to interpret the silent statute as
overriding the clear direction of the one that speaks explicitly to the issue and advances
the policy favored by the law. By employing the ambiguity in section 40059 to eliminate
the ―lowest responsible bidder‖ requirement imposed by section 49201, the trial court
extended the reach of section 40059 into an area in which it was not intended to operate,
and in so doing ―defeat[ed] the object of insuring economy and excluding favoritism and
corruption‖ in the letting of public contracts. (Domar, supra, 9 Cal.4th at p. 173.)
23
Distracted by section 40059, the trial court ignored the fact that, like the
provisions of the Public Contract Code appellant vainly urged the court to consider
extrinsic evidence of legislative intent (Pub. Contract Code, § § 10180, 10344),
California statutes authorizing local government agencies to award public works
contracts invariably require the governing board of a county or city to award the contract
to the ―lowest responsible bidder‖ (See, e.g., Pub. Contract Code, §§ 20128 [counties]
and 20162 [cities].) If, as provided in the statutes just cited, Boards of Supervisors must
award a public works contract to the ―lowest responsible bidder,‖ and city councils must
do so where the public project involves an expenditure exceeding $5,000, why (even if
section 49201 did not exist) would the Legislature want to relieve a local governmental
agency of that requirement when awarding a long-term exclusive franchise for solid
waste handling services? The trial court made no such inquiry.
The trial court also unjustifiably ignored appellant‘s request that it inquire into the
technical meaning of the phrase ―competitive bidding‖ when used in the context of public
procurement, which also could properly have been used to discern the real intention of
the law-making power. (In re Smith (1928) 88 Cal.App. 464, 467-468; Yassin v. Solis,
supra, 184 Cal.App.4th 524, 531; Murray’s Iron Works, Inc. v. Boyce (2008) 158
Cal.App.4th 1279, 1299; 2A Singer & Singer, Sutherland Statutory Construction, supra,
§ 47:29, p. 474, fns. omitted [―In the absence of legislative intent to the contrary, or other
overriding evidence of a different meaning, technical terms or terms of art used in a
statute are presumed to have their technical meaning.‖].)
Virtually all authorities on government procurement and public contract law
define the competitive sealed bidding process employed by the County in this case as one
in which ―the award is made to the responsible bidder having the lowest responsive bid.‖
(Conway, State and Local Procurement, ABA Section of State and Local Government
Law (2012) at p. 64.) Both the National Association of State Procurement Officials and
the National Institute of Governmental Purchasing, define ―competitive sealed bidding‖
as ―[t]he preferred method for acquiring goods, services, and construction for public use
in which award is made to the lowest responsive and responsible bidder.‖ (Nat‘l Assn. of
24
State Procurement Officials, State and Local Government Procurement: A Practical
Guide (2008) at p. 307; Nat‘l. Inst. of Governmental Purchasing, Public Procurement:
Dictionary of Terms (2010) at p. 27.) According to one authority, ―[t]he competitive
bidding process in public contracting presumes that award will be made to the qualified
individual or firm submitting the lowest price quotations.‖ (Keyes, Encyclopedic
Dictionary of Contract and Procurement Law (5th ed. 1992), at p. 47, italics added.)
The court‘s analysis of the Board‘s intention with regard to a lowest responsible
bidder requirement was irrelevant to the fundamental question whether governing law
imposed the requirement. As earlier noted, the court reasoned that ―the Board must not
have intended to direct the PWD to adopt a ‗lowest responsible bidder‘ requirement,
because the Board unquestionably approved the RFP prepared by the PWD that contained
no such requirement.‖ Even if the court‘s view of the Board‘s intention was correct,
however, the Board lacked the power to avoid the ―lowest qualified bidder‖ requirement
of section 49201.
In any event, the court‘s reading of the RFP grossly distorts its meaning and
purpose. Though the RFP does not refer to the lowest responsible bidder requirement
explicitly, it could not more strongly imply that requirement. As the Director of the
PWD stated in his May 13 report to the Board, the RFP required the review committee to
evaluate the bidders not just on the basis of ―service rates,‖ but on five other weighted
criteria also specified in the RFP (―responsiveness to the RFP, company qualifications
and comparable experience, financial creditworthiness, acceptance of franchise terms,
and the company‘s proposed management plan‖) and the RFP states that percentage
scores ―will reflect the extent to which criteria are fulfilled relative to other proposals.‖
This specification of the evaluative criteria employed to assess bidders ―responsibility‖ or
―qualifications,‖ and comparison of bidders‘ scores on the basis thereof, and the
provision in the RFP that in certain cases in which ―a bidder may not be technically
qualified . . . a proposal may be rejected even though it proposes the lowest monthly fee
for subscribers,‖ can only mean that the franchise is to be awarded the lowest responsible
bidder.
25
The RFP describes in detail the nature of the inquiry the review committee will
engage in with respect to each of the specified criteria. For example, with respect to the
―management plan‖ bidders are required to submit, the RFP directs that the plan describe
―how the bidder plans to provide for the collection and disposal of solid waste and
collection of recyclables. . . . The description must include, but not be limited to: (a) an
explanation of the method(s) [by which] recyclable materials will be collected and how
the bidder will minimize the amount of rejects that will be produced; (b) any potential
service improvements; (c) a description of how the bidder will ensure that availability of
sufficient personnel and equipment to provide satisfactory service; and (d) a description
of how the bidder will ensure that quality subscriber services will be provided.‖ These
requirements, and numerous others relating to each one of the specified criteria set forth
in the Board-approved RFP, were obviously designed to transparently provide the
―common basis‖ upon which the review committee and the Board would ascertain and
score bidder‘s qualifications or responsibility.
The RFP before us ―does not clearly provide potential bidders with notice that a
fully complying bid may be rejected in favor of one which is not‖ (Konica, supra,
206 Cal.App.3d at p. 457), or that bids would be evaluated on the basis of criteria not
identified in the RFP or otherwise disclosed prior to the submission of bids. Bidders
cannot be required to guess at the standards by which they will be measured, and are
entitled to expect that the bid that most fully satisfies the specified criteria would be
awarded the franchise.
Because the percentage scores of all bidders were in a very narrow range, the
PWD review committee appears to have determined that all four bidders were ―qualified‖
or ―responsible‖; the favorable service rate proposed by appellant, which was weighted at
65 percent out of a possible 100 percent, was the dispositive factor and reason the review
committee recommended appellant be awarded the franchise. As one authority succinctly
describes the process, ―the public official charged with the duty of making the award of
contract to the lowest responsible bidder must determine two things in order to make a
valid award: (1) the responsibility of the bidders, and (2) which of the responsible bidders
26
has submitted the lowest bid. The second step requires only a comparison of arithmetical
figures and does not involve the exercise of judgment and discretion.‖ (Rosenbaum,
Criteria for Awarding Public Contracts to the Lowest Responsible Bidder (1942) 28
Cornell L. Q. 37, at pp. 40-41) In City of Inglewood-L.A. County Civic Center Auth. v.
Superior Court, supra, 7 Cal.3d 861, Justice Mosk stated the proposition this way: ―a
contract must be awarded to the lowest bidder unless it is found that he is not responsible,
i.e., not qualified to do the particular work under consideration. Whether or not an
express finding of nonresponsiveness is required [citation], if a contract is awarded to one
other than the lowest monetary bidder, the ineluctable implication is that the latter is not
responsible.‖ (Id. at p. 867; see also McQuillin, Municipal Corporations, supra, § 29:38
at pp. 651-652 [absent a valid provision of a statute or ordinance giving preference to
certain types of businesses, “the lowest responsible bidder who submits a sample which
complies with the standard fixed by the proposal is entitled to be awarded the contract.‖];
League of California Cities CEB, The California Municipal Law Handbook 2012, § 7.15
at p. 735 [―If the lowest monetary bidder is responsible and submits a responsive bid, the
contract must be awarded to the lowest monetary bidder even if another bidder is more
responsible‖].)
In short, for the foregoing reasons, the substance of the RFP and the conduct of the
PWD and its review committee are all consonant with acceptance and application of the
―lowest responsible bidder‖ requirement. By imputing to the RFP a meaning and
consequence it does not have, and by failing to properly resolve an ambiguity so as to
eliminate conflict between provisions of the 1989 Act, the trial court effectively
eliminated the ―lowest responsible bidder‖ requirement of the 1989 Act (insofar as it
relates to county franchises for solid waste handling services obtained through
―competitive bidding‖) which is among the paramount precepts of public contract law.
27
3.
The Manner in Which the Franchise was Awarded Deviated
From Strict Compliance with Applicable Bidding Requirements
and Gave the Successful Bidder an Unfair Advantage
As noted at the outset of our analysis, ―the letting of public contracts universally
receives close judicial scrutiny‖ (Konica, supra, 206 Cal.App.3d at p. 456) because
deviations from strict adherence to competitive bidding standards may facilitate
corruption or extravagance, or affect the amount of bids or the response of potential
bidders.10 (Schram Construction, Inc. v. Regents of University of California, supra, 187
Cal.App.4th at p. 1061; Konica, supra, 206 Cal.App.3d at pp. 456-457; Charles L.
Harney, Inc. v. Durkee (1951) 107 Cal.App.2d 570, 578.) As will be seen, the deviations
from applicable bidding requirements in this case gave real party in interest an enormous
unfair advantage over other bidders.
We begin our analysis by examining the trial court‘s rejection of appellant‘s attack
on the fairness of the process in which the franchise was awarded. In finding the process
fair, the court relied on our opinion in Cypress Security, LLC v. City and County of San
Francisco (2010) 184 Cal.App.4th 1003 (Cypress Security), in which we affirmed denial
of relief to an unsuccessful bidder‘s challenge of an award of a public contract to a
competitor. The language in Cypress Security the court relied upon was the conventional
statement that in a mandamus action challenging an award of a public contract, review is
― ‗limited to an examination of the proceedings to determine whether the City‘s actions
were arbitrary, capricious, entirely lacking in evidentiary support or inconsistent with
proper procedure. There is a presumption that the City‘s actions were supported by
10
As one court has observed, the salutary effects of the ―lowest responsible
bidder‖ requirement also include the safeguarding of public officials ―from temptation
and opportunity for fraud and favoritism,‖ as they ―assist in removing suspicion of
unfairness and favoritism, and relieve honest men [and women] upon whom these duties
devolve of unjust charges.‖ (Hannon v. Board of Education (Okla. 1909) 107 Pac. 646,
655.) Thus protected, honest citizens, ―without fear of being corrupted or slandered‖ will
be willing to enter public service and ―the dishonest man [or woman] will find more
difficulty in plundering the public.‖ (Ibid.)
28
substantial evidence, and [petitioner/plaintiff] has the burden of proving otherwise.‘ ‖
(Id. at p. 1010, italics added.) The trial court ignored the italicized phrase, which is most
pertinent to this case. There was no procedural problem in Cypress Security because San
Francisco is a charter city, to which state bidding requirements do not apply (R & A
Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1191-1192),
the bidding process prescribed by the applicable provision of the city charter did not
require the award to go to the lowest responsible bidder, and the successful bidder‘s
proposal substantially conformed to the RFP. (Cypress Security, at pp. 1010, 1015-
1018.) None of those factors are present here. As we have seen, the bidding process
prescribed by applicable state statutes and county ordinance, as well as the RFP, all
embody a ―lowest responsible bidder‖ requirement.
The critical deviation from the proper bidding process in this case was from the
provision of the RFP stating that any modifications of its provisions, such as changing the
evaluative criteria, must be made ―prior to the date and time fixed for submission of
proposals, by issuance of a revision to all parties that have received the RFP.‖ (Italics
added.) Ignoring this requirement, and also the evaluative criteria identified in the RFP
and employed by the PWD, the Board not only changed the criteria after bids were
unsealed, but did so by introducing a previously unknown factor that appears to have
disadvantaged all bidders except the one who received the franchise. If a majority of the
Board believed the evaluation of bids would turn on whether a bidder was locally owned
and operated, meaning based in the Willow Creek area—and not in any other city or town
in Humboldt County (the losing bidders were based in Fortuna, Blue Lake, and
McKinley)—Tom‘s Trash would probably have been the only bidder, which would have
effectively eliminated competition. If the goal was to award the franchise to a Willow
Creek area owner and employer, and the Board could properly find that ―the public
health, safety and well-being are best served‖ by doing so, the Board could have lawfully
done that without competitive bidding. But the Board did not take that course. Instead, it
turned the evaluative criteria and process described in the RFP, and the detrimental
29
reliance thereon of the bidders, into a charade.11 One need not be Raymond Chandler to
see that such a scenario could easily be employed to facilitate favoritism, fraud,
corruption and extravagance.
― ‗A basic rule of competitive bidding is that bids must conform to specifications,
and if a bid does not so conform, it may not be accepted. [Citations.]‘ ‖ (Konica, supra,
206 Cal.App.3d at p. 454, quoting 47 Ops.Cal.Atty.Gen. 129, 130-131 (1966); Valley
Crest Landscape, Inc. v. City Council (1966) 41 Cal.App.4th 1432, 1440.) ―[N]otices
sent to the bidders changing the specifications after bids have been advertised for and
received render the contract invalid. A contract will be set aside where specifications are
changed after the bidding has been closed.‖ (10 McQuillin, Municipal Corporations,
supra, § 29.69, at p. 589, fns. omitted, and cases there cited.)
It is appropriate to re-emphasize that, though it could have, the Board never
rectified its failure to employ the evaluative criteria specified in the RFP it approved. As
earlier noted, the Director of the PWD and County Counsel informed the Board that it
could choose not to award the exclusive franchise to appellant, but that if it chose to
award the exclusive franchise to another bidder, it would need to evaluate the proposals
on the same basis as they had been evaluated by the PWD review committee; that is, on
the basis of the criteria outlined in the RFP. This advice went unheeded. The
incorporation in Supervisor Sundberg‘s motion to award the franchise to Tom‘s Trash of
11
The trial court reached a different conclusion because the RFP ―made it
abundantly clear that: (1) the recommendation of the review committee was not binding
on the Board; (2) factors other than those listed in the RFP could be considered; and
(3) that [the County] ‗reserves the right to act in the best interest of the County and its
residents and businesses, including the right to reject a proposal that is given the highest
ranking in the evaluation process.‘ ‖ However, neither the provisions referred to by the
court nor anything else in the RFP told bidders that the evaluative criteria specified in the
RFP or the weight assigned each criterion could be materially changed after bids had
been submitted, which not only violates an express provision of the RFP but makes a
mockery of the RFP. An RFP cannot be employed by a local governmental agency to
exempt itself from statutory duties, such as that imposed by the ―lowest qualified bidder‖
requirement. (§ 49201, subd. (c).) Though the RFP does provide that ―a proposal may
be rejected even though it proposes the lowest monthly fee for subscribers,‖ that caveat
applies where the low bidder is not ―technically qualified,‖ which is not here the case.
30
County Counsel‘s suggestion that the Board reevaluate the bids incorporated a
suggestion; it did not itself constitute an actual reevaluation of the bids received.
Moreover, as we have said, the franchise was awarded primarily on the basis of a
criterion never mentioned in the RFP.
We do not believe Tom‘s Trash was awarded the franchise on the basis of
favoritism, fraud or corruption, because the record does not show that. But the fact that
bidders were misled and did not compete on a level playing field opens the door to such
possibilities, and that is enough to warrant judicial intervention. The mere potential for
abuses likely to arise from significant deviations from standards designed to eliminate
favoritism, fraud, and corruption, avoid misuse of public funds, and stimulate
advantageous market place competition is a sufficient basis upon which to grant judicial
relief even without a showing that the deviations actually resulted in such abuses. As
stated in Konica, supra, 206 Cal.App.3d 449, a ―preventive approach is applied even
where it is certain there is in fact no corruption or adverse effect upon the bidding
process, and the deviations would save the entity money. [Citations.] The importance of
maintaining integrity in government and the ease with which policy goals underlying the
requirement for open competitive bidding may be surreptitiously undercut, mandate strict
compliance with bidding requirements. [Citation.]‖ (Id. at pp. 456-457, italics added,
cited with approval in Domar, supra, 9 Cal.4th at p. 176.) Where, as here, the deviations
from such strict compliance are not minor technicalities or nonsubstantive, but rather are
capable of facilitating corruption or extravagance, or likely to affect the amount of bids or
response of potential bidders, the deviating bid must be set aside. (Schram Construction,
Inc. v Regents of University of California, supra, 187 Cal.App.4th 1040, 1061; Ghilotti
Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 907-908; Konica,
supra, 206 Cal.App.3d at pp. 456-457.)
4.
Remedy
―There are essentially two prerequisites to issuance of a writ of mandate under
Code of Civil Procedure section 1085: ‗(1) the respondent has a clear, present, and
31
usually ministerial duty to act, and (2) the petitioner has a clear, present, and beneficial
right to performance of that duty.‘ [Citation.]‖ (Monterey Mechanical Co. v. Sacramento
Regional County Sanitation Dist. (1996) 44 Cal.App.4th 1391, 1413-1414) Those
requirements are met in this case. Having elected under Humboldt Code section 521-6 to
proceed with ―competitive bidding,‖ and having found that all bidders were ―qualified‖
or ―responsible,‖ the County was statutorily bound to award the franchise, if at all, to the
lowest bidder (§ 49201, subd. (c)), and as the lowest responsible bidder, appellant has a
beneficial interest in seeing that the franchise is awarded in the manner prescribed by
law. Because appellant has the right to require the County to apply the criteria specified
in the RFP, as it failed to do, the trial court erred in sustaining award of the franchise to
real party in interest. (Id. at p. 1414)
The remaining question pertains to the judicial remedies now available to
appellant. As the Supreme Court has noted, ―the most effective enforcement of the
competitive bidding law is to enforce by injunction the representation that the contract
will be awarded to the lowest responsible bidder. This is generally done by setting aside
the contract award to the higher bidder. [Citations.]‖ (Kajima/Ray Wilson v. Los Angeles
County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 313, fn. 1
(Kajima).)12 The Kajima court also noted, however, that as a practical matter, by the time
12
Injunctive relief is ―most effective‖ because ― ‗[a] bidder deprived of a public
contract, by the wrongful misaward of that contract, has neither a tort nor a breach of
contract action against the public agency‖ (Kajima, supra, 23 Cal.4th 305 at p. 315, fn.
2), and the only monetary relief available to such a bidder is that recoverable under a
promissory estoppel theory, which is limited to bid preparation costs, and does not
include lost profits. (Id. at p. 315) Moreover, though successful judicial enforcement of
the competitive bidding laws usually confers significant pecuniary and nonpecuniary
benefits on the general public or a large class of persons, and the necessity and financial
burden of such private enforcement may make an award of reasonable attorney fees
appropriate, such an award has been held inappropriate under the ―private attorney
general‖ theory codified in Code of Civil Procedure section 1021.5 in a case involving
competitive bidding law in which the granting of injunctive relief remained possible,
because the private enforcement was incentivized by the plaintiff‘s economic interest, to
which the public benefit is coincidental. (United Systems of Arkansas, Inc. v. Stamison
(1998) 63 Cal.App.4th 1001, 1013; cf., Kajima, supra, 23 Cal.4th at pp. 309-310, where,
32
the basis for relief is persuasively demonstrated, the underlying contract may already
have been substantially or fully performed‖ (Kajima, supra, 23 Cal.4th at p. 313, fn. 1,
citing Swinerton & Walberg Co. v. City of Inglewood–L.A. County Civic Center Authority
(1974) 40 Cal.App.3d 98, 103, as an example of this recurring scenario), so that it can no
longer be awarded to the lowest responsible bidder. That is apparently not the case here,
however, because the 10-year exclusive franchise has not yet been fully or even
substantially performed by real party in interest it may in this case be possible to enforce
by injunction the representation of the RFP that the franchise will be awarded to the
lowest responsible bidder, as directed in Konica, supra, 206 Cal.App.3d 449.)13 This is a
matter appropriate for the trial court to consider and determine on remand. If, as now
appears, the granting of injunctive relief is practicable, and the County does not elect to
dispense with competitive bidding pursuant to section 40059 upon the findings required
by Humboldt Code section 521-6, such relief should be granted.
DISPOSITION
The judgment of the superior court is reversed and the case remanded to that court
to enter a judgment granting the petition and to issue a peremptory writ of mandate
directing such other relief as may be appropriate in the circumstances and consistent with
this opinion. Appellant shall recover its costs on appeal.
in determining whether the trial court properly awarded the bidder bid preparation costs
and lost profits, the court declined to review the trial court‘s award of $89,223 in ―bid
protest costs,‖ which presumably included legal fees.)
13
In Konica the Court of Appeal directed the superior court ―to issue a writ
mandating the [public agency] to publish a new RFQ and call for rebids within 30 days of
our remittitur. Pending acceptance of the successful rebid, [real party in interest] shall
continue to provide services conforming to the terms of the now vacated contract and the
[public agency] shall compensate [real party in interest] on a per diem basis for services
received.‖ (Konica, supra, 206 Cal.App.3d at p. 458.)
33
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Brick, J.*
A135744, Eel River Disposal v. Humboldt
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
34
Trial Court: Humboldt County Superior Court
Trial Judge: Hon. Dale A. Reinholsten
Attorneys for Appellant: Harland Law Firm, LLP
Allison G. Jackson
Attorneys for Respondents: County of Humboldt-County Counsel
Wendy B. Chaitin, County Counsel
Jefferson Billingsley, Deputy County Counsel
No Appearance for Real Party in Interest.
35