1. law, govt and politics

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KAMALA D. HARRIS
Attorney General of California
CHRISTINA BULL ARNDT
Supervising Deputy Attorney General
JENNIFER W. ROSENFELD
Deputy Attorney General
State Bar No. 125615
300 So. Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-6015
Facsimile: (213) 897-2801
Attorneys for the California Department
of Parks and Recreation
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BEFORE THE
DEPARTMENT OF PARKS AND RECREATION
STATE OF CALIFORNIA
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In the Matter of :
OAH No. 2014060044
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BID PROTEST REGARDING
CONCESSION AT 2613 SAN DIEGO
AVENUE OF CHRIS TAFOYA AND
TINSMITH OLD TOWN,
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Petitioners.
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JONATHAN BEERY AND ANTOINETTE
FISHER,
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Real Parties in
Interest
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PRETRIAL BRIEF OF CALIFORNIA
DEPARTMENT OF PARKS AND
RECREATION
Date: Jan. 20-23, 2015
Time: 9:00 a.m.
Judge: Susan J. Boyle
Hearing location: San Diego
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I. INTRODUCTION
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This is a protest by an existing concessionaire seeking to expand her operations in Old
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Town San Diego State Historic Park (“Park”). Tinsmith Old Town (“Tinsmith”) submitted three
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proposals for new concessions in response to a Request for Proposal (“RFP”) for a Historic-Style
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Specialized Retail Concession Contract at the Park. Following evaluation of all proposals by a
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specially-convened award board in Sacramento, the Department of Parks and Recreation
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(”Department”) issued a Notice of Intent to award the contract to another proposer, Proper
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Apothecary, who it determined was the “Best Responsible Proposer” under the criteria set out in
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DEPT. OF PARKS AND RECREATION’S PRETRIAL BRIEF
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the RFP. This court must determine whether the Department’s decision that Proper Apothecary
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was the “Best Responsible Proposal” for the award of this concession contract was arbitrary and
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capricious, under the evidence before the award board. This review does not ask the court to
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reweigh the proposals themselves nor is the court empowered to award the contract to a different
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proposer than the Department selected.
A. Factual Background
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Old Town San Diego State Historic Park is a twelve-acre park three miles north of
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downtown San Diego. The Park is one of the primary tourist destinations in the State with an
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average annual attendance of 5.6 million visitors. The Park is comprised of numerous restored
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and reconstructed buildings that now operate as museums, shops, and restaurants reflecting the
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historic period of the community between 1821 to 1872. The mission of the Park is to present the
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opportunity for visitors to experience the history of early San Diego by providing a connection to
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the past. In keeping with this mission, twenty-three park buildings are operated by private
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concessionaires who contract with the Department to provide high-quality goods and services at
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reasonable prices that enhance the visitor experience by capturing the historical, cultural, ethnic
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and geographic themes of the building’ interpretive periods. These concessions in turn provide
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reasonable compensation to the Park to support interpretive activities in the Park.
B. Request for Proposal’s Process
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This protest arises from the Department’s efforts to award an historic-style specialty retail
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concession contract. The Department sought bids for a concession contract for a vacant retail
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shop in the Park. Bids were submitted in response to a Request for Proposals (“RFP”) which
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charged the Department with selecting the “best responsible proposer.” The RFP provided that
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the “best responsible proposer” in this instance would be “the bidder whose proposal passed the
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required elements and receives the highest total score as determined by the Contract Award
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Board” (RFP pg. 11, RFP is DPR Exhibit 1.) Finally, the RFP allowed a proposer to “file a
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written statement of protest against awarding of the contract.” (RFP pg. 11.)
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This RFP elicited a number of proposals, including three proposals for new concessions (a
photographic studio, millinery shop and dry goods shop) from existing Park concessionaire
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Tinsmith Old Town, a proposal for a California Indian Market from existing concessionaire
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Tafoya Enterprises, and one for the Proper Apothecary from existing concessionaires Jonathan
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Beery and Antoinette Fisher (RUST General Store) and one that was disqualified for
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incompleteness at the outset. Following review by an appointed Award Board in Sacramento, the
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Department found Beery and Fisher’s proposal for the Proper Apothecary to be the “Best
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Responsible Proposer” and sent notice of its intent to award them the contract.
C. Protests of Tinsmith Old Town and Tafoya
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Tinsmith Old Town and Tafoya filed letters of protest. Tafoya’s protest was dismissed
following the prehearing conference because his proposal was non-responsive to the RFP.
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Tinsmith’s challenge purports to ask this court step in the shoes of the Award Board and
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Department and award it the concession contract. As Tinsmith was advised at the prehearing
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conference, however, the only possible remedy in this action is rebid of the RFP.
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Tinsmith Old Town submitted a protest alleging a variety of bases for challenge, largely
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falling into two categories: 1) that Tinsmith should have scored higher and 2) that the winning
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proposal should have scored lower. Tinsmith’s protest and P&As filed subsequent to the
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prehearing conference assert a laundry list of alleged bases for protest, all emanating from the
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complaint that the winning proposers gained an unfair advantage because the mother of one of its
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partners works at the Park. Tinsmith, however, has identified no procedural flaw in this process
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nor demonstrated that the Award Board process was tainted by any unfair advantage. The Park
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employee in question had no role in development of this RFP or evaluation of these proposals.
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Further, Tinsmith cannot meet its burden of demonstrating that the evaluation of the Award
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Board, and the Department’s decision based upon that evaluation, is not supported by substantial
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evidence.
II. STANDARD OF REVIEW
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A. Tinsmith Must Show the Department’s Decision Was Arbitrary and Capricious
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The scope of review of award of a contract to the “best responsible bidder” is limited to an
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examination into whether the Department’s actions were arbitrary, capricious, or entirely lacking
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in evidentiary support or whether the Department failed to follow procedures and give the notice
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required by law. (Santa Ana Tustin Community Hospital v. Board of Supervisors of Orange
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County (1982) 127 Cal.App.3d 644, 643). This deferential standard is warranted because of the
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nature of the competitive award process, which requires the weighing of evidence. Courts have
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pointed out that the award of a contract by a public entity is legislative in nature and “necessarily
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requires an exercise of discretion guided by consideration of the public welfare.’” (Mike Moore's
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24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303). Further, on such an
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inquiry “the court does not weigh the evidence adduced before the agency or substitute its
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judgment for that of the agency.” (Id. at p. 1305, citations omitted.) This is a question of law, not
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a question of fact that can be disputed by presentation of conflicting evidence. (Id. at p. 1303.)
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The court’s review in this matter is analogous to that of a superior court mandate action
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under Code of Civil Procedure section 1085, where the court called upon to review an action of
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an administrative agency. In conducting this review, the court will apply an arbitrary and
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capricious standard of review, upholding the award unless it finds the agency’s decision “is
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entirely lacking in evidentiary support or inconsistent with proper procedure.” (Ghilotti
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Construction Co. v. City of Richmond, supra, 45 Cal.App.4th at pp. 903-04). This court’s inquiry
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is limited to whether the record before the Department’s Award Board supports the its decision
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that Proper Apothecary was the best responsible proposer under this RFP.
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In making this inquiry, “[t]he court may not reweigh the evidence and must view the
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evidence in the light most favorable to the District's actions and indulge all reasonable inferences
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in support thereof.”(Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195
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Cal.App.3d 1331, 1340, citations omitted.) “Substantial evidence” in this context is “relevant
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evidence that a reasonable mind might accept as adequate support for a conclusion.” (Id.).
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B. Tinsmith Bears the Burden of Showing that Department’s Action was Arbitrary and
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Capricious
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A disappointed bidder bears the burden of proving that the Department’s actions were
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arbitrary or capricious, requiring a showing that the record does not contain sufficient evidence to
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support the Department’s decision. (International Brotherhood of Electrical Workers, Local 889
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v. Aubry (1996) 42 Cal.App.4th 861, 870.) As the court stated Ghilotti Construction Co. v. City of
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Richmond, (1996) 45 Cal.App.4th 897,
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Our 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 substantial evidence, and Ghilloti has the burden of proving otherwise. We
may not reweigh the evidence and must view it in the light most favorable to the City's
actions, indulging all reasonable inferences in support of those actions. [Citations omitted].
(Id. at. p. 903)
Further, this review must be “viewed in light of the public interest, rather than the private
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interest of a disappointed bidder.” (Id. at p. 908.) Courts have emphasized that this public interest
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is not served by permitting a disappointed bidder to prevail by identifying minor deviations in the
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process or record in the hopes of overturning the process. (Ibid.; see also Cypress Sec. LLC v. City
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and County of San Francisco (2010) 184 Cal.App.4th 1003, 1010.) In addition, allegations
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regarding a decision to disqualify a bid as nonresponsive requires a different analysis that whether
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a bid is the best “responsible” proposal. As the Court said in Taylor Bus Service, Inc. v. San
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Diego Board of Education, “[a] bid is responsive if it promises to do what the bidding
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instructions demand. A bidder is responsible if it can perform the contract as promised.” (Taylor
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Bus Service, Inc., supra, 195 Cal.App.3d 1331, 1341, citations omitted.) The issue of
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responsibility is a complex, discretionary act of the public agency entitled to deference. (Ibid.)
III. ARGUMENT
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A. The Record Supports a Finding that Proper Apothecary was the Best Responsible
Proposer on this RFP
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The relevant bidding procedures are contained in Public Resources Code sections 5080.01
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et seq. and California Code of Regulations, Title 14, sections 4400, et seq. In the context of this
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concessions contract, Public Resources Code section 5080.23 provides that the “‘best responsible
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person or entity submitting a proposal’ means the person or entity submitting a proposal, as
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determined by specific standards established by the department, that will operate the concession
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in the best interests of the state and the public.” The inquiry in this matter will be whether the
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record supports the Department’s decision that Proper Apothecary was the “best responsible
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proposer” under the RFP at issue. This RFP provides that,
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“the award for a concession contract will be to the “Best Responsible Proposer” in
accordance with Section 5080.23 of the Public Resources Code. The “Best Responsible
Proposer” will be the bidder whose proposal passes each of the required elements and
received the highest total score as determined by the Contract Award Board and approved
by the Director.” (RFP pg. 11).
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The intent of this particular RFP is “to provide the public with high-quality, reasonably
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priced goods and services in an authentic manner and atmosphere that enhances the visitors’
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experience and the interpretive, natural, and cultural resources of the park.” (RFP, p. 5.) The RFP
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specifies that a “Contract Award Board will evaluate and score each eligible proposal pursuant to
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the point system and selection criteria as described in the [RFP]” (RFP, p. 10.) This section of the
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RFP continues with the bolded sentence, “Proposals not containing all of the items in the
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Concession Proposal form (DPR 398) may be rejected.” (Ibid., sentence bold in original, italics
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added.) Further, in establishing the evaluation process, the Department is specifically allowed the
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“right to accept or reject any or all proposals, and waive any or all immaterial defects,
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irregularities, or requirements for the benefit of the State, so long as such waiver does not give
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any proposer a material advantage over other proposers.” (Ibid.) Thus, the Department is given
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broad discretion in evaluating the proposals and its evaluation should be given significant
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deference on review. The evidence will show that the Department acted well within its discretion
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in determining that Proper Apothecary was the best responsible proposer.
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This award board considered five competitive proposals. Tafoya’s was disqualified as it
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proposed an excluded business type. The remaining four were evaluated in detail, with particular
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emphasis on their Operations, Facilities and Interpretive Plans, as these are the most significant
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factors in choosing a concession to enhance the visitor experience in the Park. When final points
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were entered by the award board, on consideration of all of the evidence before it, Proper
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Apothecary scored the highest as the award board noted that it “exceeded the elements” required
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by the RFP in many categories. In contrast, Tinsmith’s proposals only “minimally addressed”
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many of the elements. In the end, the award board recommended that proper Apothecary be
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awarded the contract as it was determined to be the “best responsible proposer” for this
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concession contract. This discretionary decision is supported by the evidence before the award
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board and should be upheld by this court.
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B. The Court Should Not Consider Evidence Not before the Award Board
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Tinsmith seeks to expand the scope of this proceeding far beyond that contemplated by the
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process and beyond the scope of her original protest. The inquiry in this case is limited to whether
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the evaluation of the award board, and by extension the Notice of Intent issued by the Department
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based upon that evaluation, is supported by the evidence before the award board. In making this
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review, this court should look at the record before the Department when it made its decision and
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not consider extraneous material the protester seeks to introduce. (See Mike Moore’s 24-Hour
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Towing v. City of San Diego, supra, 45 Cal.App.4th at pp.1305-06.)
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Under this standard, evidence that was not before the award board is not relevant to this
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inquiry and should not be considered by this court. Department therefore urges that the court
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exclude:
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1. Any extrinsic evidence of the financial condition of proposers.
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2. Any evidence relating to the award or protest of other concession contracts that are not
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the subject of this protest.
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3. Any evidence related to development of this RFP.
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4. Any evidence relating to signage or merchandise at Toby’s Candles.
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5. Any evidence of events occurring subsequent to the Notice of Intent to Award this
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concession contract, including evidence of other, later RFPs.
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6. Any evidence relating to the concession contract for RUST General Store not included
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in the proposals at issue in this case.
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7. Testimony by witnesses who did not review the proposals responding to the RFP at
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issue.
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In short, Department asks the court to limit the inquiry in this case to that appropriate to
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standard of review applicable to this case and bar inquiry into matters not before the award board.
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DEPT. OF PARKS AND RECREATION’S PRETRIAL BRIEF
CONCLUSION
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Old Town San Diego State Historic Park is dedicated to providing a rich visitor experience
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for the public. As the Department will demonstrate, it fairly weighed and considered the
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proposals submitted in response to this RFP, and, relying upon the evaluation of a specially-
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appointed Award Board, determined to award this concession contract to Proper Apothecary. The
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protests being levied cast no doubt on the propriety of the process and this court should validate
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the Department’s notice of intent to award the contract to Proper Apothecary.
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Dated: January 20, 2015
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Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
CHRISTINA BULL ARNDT
Supervising Deputy Attorney General
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JENNIFER W. ROSENFELD
Deputy Attorney General
Attorneys for Respondent,
California Department of Parks and
Recreation
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