Transdyn/Cresci JV v. City & County of San Francisco

72 Cal. App. 4th 746, 85 Cal. Rptr. 2d 512, 99 Cal. Daily Op. Serv. 4156, 99 Daily Journal DAR 5273, 1999 Cal. App. LEXIS 541
CourtCalifornia Court of Appeal
DecidedMay 28, 1999
DocketNo. A084042
StatusPublished
Cited by30 cases

This text of 72 Cal. App. 4th 746 (Transdyn/Cresci JV v. City & County of San Francisco) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Transdyn/Cresci JV v. City & County of San Francisco, 72 Cal. App. 4th 746, 85 Cal. Rptr. 2d 512, 99 Cal. Daily Op. Serv. 4156, 99 Daily Journal DAR 5273, 1999 Cal. App. LEXIS 541 (Cal. Ct. App. 1999).

Opinion

OPINION

RUVOLO, J.

I.

Introduction

Appellant Transdyn/Cresci, JV appeals from the trial court’s denial of its petition for writ of mandamus seeking to compel respondent Public Utilities Commission of the City and County of San Francisco (the Commission) to issue appellant a contract to monitor the quality and flow of San Francisco’s water supply. Appellant contends the Commission violated the provisions of the San Francisco Administrative Code when it passed a resolution rescinding the Commission’s earlier contract award to appellant.

We agree and reverse. The action of the General Manager of the Public Utilities Department of the City and County of San Francisco (Department Head) in refusing to sign the contract after the Commission had passed an original resolution awarding the contract to appellant pursuant to competitive bidding laws exceeded the scope of the Department Head’s legal authority, as did the refusal to forward the contract to the Controller of the City and County of San Francisco (Controller) for certification that sufficient funds were available to finance the project. Therefore, the subsequent resolution of the Commission rescinding the contract award to appellant and purporting to reject all bids was unlawful.

[749]*749We direct the trial court to issue a writ of mandate compelling the Department Head and the Controller to perform the acts necessary to implement the original resolution awarding the contract to appellant, and declaring the Commission’s resolution rescinding the award null and void.1

II.

Background

On January 27, 1998, the Commission authorized the issuance of an “Invitation for Proposals” (IFP) for contract WD-2223. Contract WD-2223 involves the design, manufacture, and installation of the “San Francisco Water Supervisory Control And Data Acquisition (SCADA) system.” The City and County of San Francisco (the City) has been ordered by the California Department of Health Services to complete the SCADA system no later than March 2000. If the City fails to meet this deadline, it could face fines of up to $500 per day.

On March 26, 1998, the Public Utilities Department of the City and County of San Francisco (Department) received five sealed bids.2 The lowest bid was rejected because the bid bond was improper. The second lowest bid was rejected because it failed to comply with the City’s “Minority Business Enterprise” (MBE) subcontracting participation requirements. Appellant submitted the third lowest bid.

On April 28, 1998, the Commission conducted a regular meeting. Agenda item 24 (item 24) consisted of the Department’s recommendation that the Commission find that appellant was the lowest responsible bidder, and award contract WD-2223 to appellant. The Department Head signed this agenda item in a section entitled “approvals.”

The Commission adopted the Department’s item 24 recommendation, and passed the following resolution: “Resolved, That this Commission hereby awards San Francisco Water Department Contract WD-2223, San Francisco Water Supervisory Control And Data Acquisition (SCADA) system, in the amount of $10,542,055 to the lowest responsive bidder, [appellant].”

[750]*750The Commission notified appellant that it had been awarded contract WD-2223 by letter dated May 4, 1998. Appellant was instructed to execute and return the enclosed agreement, labor and material/performance bonds, and certificate of insurance within 10 days from receipt of the May 4 letter. Appellant forwarded these materials to the Commission on May 12, 1998.

On May 12, 1998, the Commission learned that the attorney representing the second lowest bidder was threatening to file a lawsuit challenging the City’s MBE subcontractor participation requirements. Several days later, the Commission was informed that these threats had been made without the knowledge or consent of the second lowest bidder, and that no such suit would be filed. Shortly thereafter, the second lowest bidder’s subcontractor, HSQ Technology (HSQ), threatened litigation. HSQ contended that the minority participation goal of 22 percent could not be justified, and that the goal should have been set at a lower level.

The Department Head consulted with the San Francisco City Attorney regarding the risk that HSQ would file litigation regarding the MBE goal for contract WD-2223. He also reviewed the bids, and determined that “the difference between the second low bid and [appellant’s] bid was approximately $600,000 . . . .” He concluded, “If the minority participation goals had been set too high and the second low bidder might have been entitled to award, with a potential savings of $600,000 for the City, then the proper and equitable action for the Department to take would be to reject all bids and rebid the contract.” Accordingly, the Department Head refused to sign the contract with appellant. Because the contract was never executed, it was not forwarded to the Controller for certification.

On June 23, 1998, the Commission met and considered various matters, including the Department’s agenda item 18. Item 18 stated, “On April 28, 1998, ... the Commission awarded the contract to [appellant]. fl[] Prior to contract execution, the [Commission], in consultation with the City Attorney, has determined that it is in the City’s best interest to rescind the earlier award, and reject all bids received.” It recommended “Rescinding the award of . . . Contract WD-2223, . . . made to [appellant], and rejecting all bids received on March 26, 1998.” The Commission adopted this recommendation and passed a resolution providing “. . . That this Commission hereby rescinds the award of Contract WD-2223, San Francisco Water SCADA System, made on April 28, 1998 by Resolution No. 98-0095 to [appellant], and rejects all bids received.”

On June 24, 1998, appellant filed this petition for writ of mandate. The trial court issued an alternative writ and granted appellant’s request for a [751]*751stay pending the outcome of the petition. The court immediately stayed “[a]ny action pursuant to the rescission of the award of PUC Contract No. WD-2223” and “[t]he rebid of the Contract,” and ordered that “[n]either the [City] nor the [Commission] shall undertake any action in connection with the rescission of the award of the Contract or the rebid of the Contract pending final disposition of this Petition.” However, the court permitted “internal rebid preparation” to go forward.

On August 6, 1998, the trial court denied appellant’s petition for writ of mandate. The court concluded appellant had never been awarded the contract, explaining “although the City took clear steps toward award of the Contract to [appellant], the award was never perfected.” The court reasoned that under section 6.05 of the San Francisco Administrative Code, and section 3.105 of the San Francisco Charter, the contract required the Department Head’s signature and the Controller’s certification of the availability of funds. After observing that “[h]ere, the Department [Head] did not sign Contract No. WD-2223 and the Controller did not certify the availability of funds for the contract,” the court concluded “[w]ithout these statutorily-prescribed elements of award, there was no contract.”

The trial court also held that appellant was not entitled to a writ of mandate because the Department Head’s duty to sign the contract was discretionary, not ministerial.

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72 Cal. App. 4th 746, 85 Cal. Rptr. 2d 512, 99 Cal. Daily Op. Serv. 4156, 99 Daily Journal DAR 5273, 1999 Cal. App. LEXIS 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transdyncresci-jv-v-city-county-of-san-francisco-calctapp-1999.