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HomeMy WebLinkAboutLetter from Rodney/Towing 9/6/11RODNEY L. SOLENBERGER, L.L.M. Law Offices 10328 Caminito Surabaya San Diego, CA 92131-1635 Tel: (858) 578-1717___ Fax: (858) 578-1717 August 23, 2011 Ms. Debra Lunt Purchasing Agent City of National City Finance Department/Purchasing Division 1243 National City Blvd. National City, CA 91950 BY E-MAIL AND FACSIMILE RE: American Towing & Auto Dismantling, Inc. Comments Regarding Intent to Award Contract under RFP #GS1011-4 Dear Ms. Lunt: On behalf of American Towing and Auto Dismantling, Inc. ("American Towing") I submit the following observations regarding the recommendations by the tow evaluation committee of the City of National City ("City") of a new contract for towing services under the above -referenced RFP. These observations are intended to raise issues that the tow evaluation committee may have inadvertently overlooked or were unaware existed. The observations are submitted as part of the procedure encouraged by the City Council at its August 16, 2011 meeting. RFP Selection Process Must Be Fair American Towing appreciates, recognizes, and acknowledges that the City reserved the right to waive any irregularities or informalities in the RFP process. However, such a reservation does not and cannot mean that the City may act arbitrarily, abuse its discretion, or fail to comply with procedures. Unfortunately, as revealed over the past ten days and particularly at the City Council Meeting on August 16, 2011, if the City Council approves the City's tow evaluation committee's recommendation, the City will act arbitrarily, abuse its discretion, and fail to comply with the procedures set forth in the RFP. Material changes to the selection process and the admitted bias of at least one member of the City's tow evaluation committee compel the conclusion that the process applied by the City was unfair to all bidders in general and American Towing in particular. 12 Ms. Debra Lunt August 23, 2011 Page 2 of 5 Sergeant Fabinski's Declared Bias Demonstrates the RFP Selection Process Was Unfair Unfortunately, as in 2006, the City has chosen to materially change the focus of the selection process as set forth in the RFP. In contrast to the RFP process in 2006, the initial RFP issued May19, 2011, made no reference to on -site or pre -award inspections. That RFP expressly stated at page 7, paragraph N. EVALUATION that "[t}he City Committee will review the Technical Specification, Specific Provisions and Price Proposal." The next paragraph notifies Bidding Contractors that they "may be required to make individual presentations to the Purchasing Agent and/or the NCPD Traffic Division Sergeant, or its designated representatives, in order to clarify their proposals." (emphasis added). Only with the issuance of "Addendum #2" dated June 30, 2011 (five days prior to the deadline for submission of proposals) for the first time was the City's intention clearly set forth to conduct pre -award inspections that were "anticipated" to be "conducted in July 2011." As in 2006, once again City employees unilaterally changed the focus of the evaluation process with only limited notice that the primary focus of the evaluation process would be on -site inspections. As problematical as the change in emphasis to on -site inspections was in 2006, the situation is more egregious this time. This is because of the active involvement of Sergeant Fabinski in the process. At Tuesday's City Council meeting, in comparing bidders who had not previously provided services to the City to a child's new toy purchase and subsequent disappointment, Sergeant Fabinski clearly indicated the unfairness of the selection process. We anticipate that an attempt to minimize Sergeant Fabinski's statements will be based as being the opinion of only one member of the tow evaluation committee. However, Sergeant Fabinski's crucial role as the only committee member performing on -site inspections of bidders' facilities and equipment cannot be minimized. A review of the evaluation forms raises serious questions as to the accuracy and completeness of the evaluation. It can only be concluded that such a selective compilation of data would and did impair the full committee's evaluation and decision -making process. There is no justifiable reason for National City to create and erect barriers to providing services. This cannot be in the best interests of the City or its citizens. Yet, this is precisely what the City staff has done by their recommendation. City Council approval of the recommendation sets a standard by which no provider who has not previously provided services can hope to be selected no matter how qualified. Is the City so inclined to forget recent history that resulted in a provider who had continuously been awarded contracts being terminated for providing deficient services? Staff Consideration Limited to Only Currently In Use Facilities and Equipment Is Unfair Other than to disqualify otherwise qualified bidders or to unfairly prefer bidders who currently provide services to the City, there is no rationale for requiring bidders to currently possess equipment and facilities to be awarded a contract. Such a requirement imposes an economic burden with only a minimal possibility that there will be a corresponding benefit. At least in the case of American Towing's purported disqualification, the required equipment and facility upgrade could be addressed in the final contract. hi addition, there is substantial evidence that this nonsensical 13 Ms. Debra Lunt August 23, 2011 Page 3 of 5 requirement was inconsistently applied. In the letter dated August 11, 2011, the City informed American Towing that it did not meet all of the RFP requirements. As stated in that letter: Specifically, Section III.E, page 15 of the RFP requires equipment capable of sub -garage towing or towing from off road areas. Additionally, per Section II, D page 14 of RFP (sic) requires an alarm system and intrusion sensor or similar devices as security measures. It is important to note that the express terms of the RFP and the letter informing American Towing that it did not meet the RFP requirements use the language "equipment capable of" providing services. Concededly, this requirement is contained in Paragraph E at page 15, which is entitled "TRUCKS." However the first paragraph refers only to "equipment" while the next two paragraphs expressly use the term, "tow trucks." The irrefutable fact is that American Towing possessed "equipment" capable of providing towing in underground garages and from off road areas. In its response at page 5, American Towing stated: While extremely familiar with the environs and features of National City, American Towing is uncertain as to the rationale for requiring off road towing capability National City acknowledges that there are "minimal off road type areas" and standard type tow truck vehicles "have been able to tow from all areas within" National City. Moreover, American Towing has demonstrated ability to recover vehicles from off pavement areas throughout San Diego County using its existing fleet in connection with services provided to the United States Border Patrol. Similarly, American Towing believes (and National City again acknowledges) that there are limited underground garage facilities within the city limits of National City. American Towing presently has the capability of recovering vehicles from underground garages by using Go Jacks®. This equipment permits the rapid, safe recovery of otherwise immobile vehicles by a single tow truck driver as would serve as a substantial equivalent. Finally, American Towing has initiated inquiries to purchase a vehicle with winch capabilities that will enable towing of vehicles from off road areas and underground garages. While the inquires have not concluded in the purchase of equipment prior to the due date for this proposal response, American Towing will commit to purchasing such equipment, and agrees to including a provision expressly requiring such equipment in the final service contract if the Corporation is a successful bidder. Accordingly, based upon the availability of 14 Ms. Debra Lunt August 23, 2011 Page 4 of 5 functionally equivalent equipment, American Towing proposes an exception as provided for in the RFP. During the inspection of American Towing's facility, the City did not seek a demonstration of the Go Jacks® equipment or inquire further regarding the company's experience in recovering vehicles for the United States Border Patrol. In addition, no explanation has been provided as to why including the purchase of equipment as a specific requirement of the contract is unacceptable. American Towing's treatment is vividly contrasted by the evaluation of the same requirement for Tom Moynahan Towing. For that company Sergeant Fabrinski's evaluation is largely illegible with respect to an off road towing vehicle. While Sergeant Fabrinski's Tow RFP Site Visit sheet notes that 1 sub -garage vehicle is available, with respect to an off road capable truck, the sheet notes "MOP/[illegible] CAT (put on rollback)." It appears that Tom Moynahan Towing purportedly intends to meet the RFP by placing a CAT vehicle on a rollback towing vehicle to meet the off road towing specification. Why use of alternate equipment is satisfactory in the instance of off road towing for one bidder, but not for underground towing by another bidder is not explained. In short City staff on the one hand took an unduly restrictive interpretation of the RFP requirement, and on the other an unduly expansive interpretation. This results in discrimination against a company that possessed equipment capable of providing the services in favor of another company in the same situation, but that preferred company is permitted to substitute alternate equipment. This cannot be the result that the City desires. Combined with Sergeant Fabrinski's bias toward companies that have previously provided services, the currently owned equipment requirement imposes an undue economic burden. In short the City is requiring bidders to make large capital outlays in the hope of the being recommended as an acceptable bidder. This is vividly demonstrated in American Towing's case, which made inquiries prior to submitting its bid response as to the cost of a vehicle capable of meeting the underground and off road towing requirement. In essence the purchase of two vehicles is required at the cost of $25,000 to $30,000. There is little reason to incur such a cost for a very contingent benefit that is further speculative because of the disparate treatment given to similarly situated bidders. Similar considerations are present with respect to the City's requirement that the storage yard have alarms and intrusion sensors. Once again, Sergeant Fabrinski's evaluation fails to note that American Towing has never had a break in at the storage yard, and the security procedures currently in place are acceptable to the other govemmental entities under those entity's respective contracts. Moreover, American Towing does have security cameras in place which would require an upgrade to be motion activated. Such motion activated cameras were deemed acceptable in the case of Tom Moyhahan Towing. Once again the cost of an upgrade of approximately $5,000 along with an additional monthly fee resulting in an additional outlay of $3,600 per year, which would only be necessary for performance under the National City contract, cannot be economically justified in light of the discriminatory selection process and substantial uncertainty of receiving the benefit of a contract award. '�j Ms. Debra Lunt August 23, 2011 Page 5 of 5 Inconsistent Application of RFP Provisions In addition to those circumstances discussed above, based upon a limited investigation, American Towing believes there is ample evidence that the tow evaluation committee inconsistently applied the RFP provisions. Another example is the capability to tow large oversized vehicles. It appears that both Cortes Towing and Tom Moynahan Towing have substantially similar vehicles, but that neither meets CHP specifications for oversized vehicle towing. Nevertheless, the tow evaluation committee determined that Tom Moynahan Towing met the RFP provision; while Cortes was informed it failed to meet the requirement. As yet another example, Angelo's Towing at the City Council meeting proposed to substitute an uninspected storage yard for evidentiary inspection purposes. The only fair conclusion is that the bids as submitted did not meet the RFP's requirement. Nevertheless, these two failed bidders are part ofthe tow evaluation committee's recommended three companies. American Towing regrets the necessity for raising these discrepancies in the tow evaluation committee's recommendation regarding award ofthe towing services contract. However, in fairness to all companies interested in providing the services, and more importantly, to assure that the needs of the City are met, such a protest has become necessary. We look forward to receiving a response to our concerns. RLS Enclosure cc: Rudy Mercado Sincerely yours, Rodney / Solenberger E-mail: rlsoffice@sbcglobal.net