This is the eleventh post in my multi-part series about How to make a California Public Records Act Request in San Bernardino County. In the
first entry, I discussed the basics of making a request. In the
second entry, I talked about the use of the California Public Records Act by journalists. In the
third entry, I discussed making a California Public Records Act request with SANBAG for a particular purchase order disclosed on one of their agendas. In the
fourth entry, I discussed receiving the initial response to my California Public Records Act request. In the
fifth entry, SANBAG told me that the records were ready. In the
sixth entry, I collected the records. In the s
eventh entry, I showed how to make a follow-up request, and I requested new documents from SANBAG. In the
eighth entry, they sent me an electronic response to my request on May 3, 2011. In the
ninth entry, I wrote to SANBAG and asked the status of my request. In the
tenth entry, SANBAG told me that my response would be sent on Wednesday.
On Wednesday, May 18, 2011, twenty days after the request, SANBAG emailed me the documents. To SANBAG’s credit, they did not have to do so, but it made sense for both the requester and the agency. Their copier, like many copiers today, is also a scanner. It takes the same amount of effort to scan and email the documents as it does to copy them.
In the last request, I found some interesting information. I have updated to include the newly discovered documents:
Purchase Order P11129 was for $40,000. The items on the 12/1/2010 agenda are two purchase orders for the same firm. Purchase Order P10270, dated 8/18/2010 is for $9,543.75. Purchase Order P11020 dated 9/2/2010 is for $25,000. Combined, that’s $75,543.75 to the same firm before the contract was awarded pursuant to the RFP process, all for legal services related to sbX Right of Way acquisition.
As stated above, SANBAG’s Board of Directors adopted a purchasing policy on January 3, 1997. It was last revised on 10/6/2010, Revision Number 12. It is not clear if this is the most recent policy, but it is the one on their website.
Policy 11000, Revision 12, effective 10/6/2010 states that its purpose is setting out “contracting and procurement standards to guide the selection of the most qualified firms to perform services to the best advantage of the Agency. It provides guidance to SANBAG staff with respect to policy considerations adopted by the SANBAG Board of Directors.” SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section I.
“A. Professional Services Contracts
1. SANBAG may, from time to time, enter into agreements with private firms or other agencies to perform ongoing services. Such contracts are geared toward the performance of specific functions on a continuing or as-needed basis, as opposed to the completion of a clearly specific scope of work or preparation of a discrete work product. Examples of professional services contracts are for legislative advocacy, legal counsel, program management, and construction management.
2. When selecting private firms to perform such services, this type of contract must be awarded on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services at a fair and reasonable price to SANBAG. Such selection shall take into consideration prior experience of the firm and/or representatives, understanding of work to be completed, knowledge of the working environment, and particular skills and expertise of the firm and/or representatives proposed for the function.” SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section IV, Subsection A.
In this case, the services involved are legal services.
Policy 1100o also governs the use of purchase orders by SANBAG staff without prior Board of Directors approval:
“E. Purchase Orders
1. The purchase order procedures are developed for efficiency in processing transactions where services and supplies are clearly specified and provide for expedient delivery of products and services. Purchase orders are binding documents that establish a vendor’s acceptance of the offer and mutually agreed upon terms and conditions, expected performance, and consideration for performance.
2. Products and services for amounts less than $50,000 in any fiscal year, other than purchase and lease of real property and employment contracts, may be purchased using purchase order procedures.
3. The Executive Director, or his/her designee, is authorized to approve Purchase Orders up to an amount of $50,000. Purchase Orders over $50,000 or exceeding a cumulative amount of $50,000 in any fiscal year requires approval by the Board of Directors.
4. All procurements for supplies and services approved by the Executive Director, or his/her designee, in excess of $5,000 shall be routinely reported to the Board of Directors.” SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section IV, Subsection E (Emphasis mine).
Here, the appearance is that $75,543.75 in purchase orders was awarded by staff in the same fiscal year (according to this, SANBAG has a July 1 to June 30 fiscal year) to the same firm. I have now received the two other purchase orders. Purchase Order P11020 has a requisition date of 6/29/2010, but was approved on 9/3/2010. Purchase Order P10270 has a PO date of 6/30/2010 and a requisition date of 7/1/2010. It was approved on 8/21/2010. The policy says that cumulative purchase orders over $50,000 in a fiscal year have to be approved by the Board of Directors, but it appears that these three purchase orders were only reported to the Board of Directors. Arguably, the purchase orders straddle two fiscal years, because the first two purchase orders have initial dates in June 2010, not July 2010.
The next issue is “sole source.”
SANBAG Policy 11000 states:
“D. Sole Source Process
In those specific instances when it may be necessary or prudent to enter into sole source contracts, specific approval shall be required.
1. All sole source contracts shall be governed by the following guidelines:
a. Sole source contracts may be recommended for approval upon a finding of appropriateness and that it is in the best interest of the agency to do so.
b. Contracts may be recommended for approval on a sole source selection based upon a requirement for unique qualifications, the existence of significant time constraints, and/or in certain instances of demonstrated experience.
c. Any recommendation for approval of a contract for which a competitive process has not been completed shall contain justification for the lack of competition.
d. Any recommendation to the Board of Directors for sole source procurement must be specifically called out in the agenda item and shall be placed on the discussion calendar.
2. The Executive Director, or his/her designee, is authorized to approve sole source procurements up to $50,000, using the guidelines outlined in this section. Such sole source procurements shall be routinely reported to the Board of Directors. SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section VII, Subsection D.
The sole source justification for Purchase Order P11129 is listed as “Unique Qualifications” and the narrative justification is “”[The law firm] has previously provided legal services related to the acquisition of sbX right of way to SANBAG. They are also the firm that was unanimously selected by SANBAG’s consultant selection team to provide legal services to SANBAG for the acquisition of sbX right of way. This purchase order will allow the [the law firm's] team to begin immediately due to the tight timeline with which Omnitrans requires possession of the right of way.”
The sole source justification for Purchase Order P10270 is listed as “Unique Qualifications,” “Significant Time Constraints” and “Demonstrated Experience” and the narrative justification is “Jean-Rene provided [the law firm] as a recommendation and due to time constraints, [the law firm] was the most appropriate firm to contract with to provide the needed legal services.” “Jean-Rene” refers to Jean-Rene Basle, then-SANBAG Counsel, and I believe was then Principal Assistant County Counsel, and is now County Counsel. There is no sole source justification for Purchase Order P11020.
I will continue to write about the California Public Records Act process as it unfolds with these requests.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
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