HomeMy WebLinkAbout03-17-2021_open session_ Item 22_McGovern, Michael_Tow Service Agreements_Redacted
MAILING ADDRESS: P.O. BOX 5536 ▪ KNOXVILLE, TENNESSEE 37928
STREET ADDRESS: 3021 TAZEWELL PIKE ▪ KNOXVILLE, TENNESSEE 37918
Via e-mail Mayor@Sbcity.org only
March 16, 2021
The Honorable John Valdivia
Mayor, City of San Bernardino
290 North D Street
San Bernardino, CA 92401
RE: Tow Service Agreements; Staff Recommendation
March 17 City Council agenda; Resolution 2021-63 (Item 22)
Dear Mayor Valdivia:
I have been retained by the principals of Wilson Towing, LLC, and Armada’s Towing with regard
to the Request for Proposals (RFP) for towing service for the City of San Bernardino. As you are
aware, a resolution to authorize the city manager to execute new towing contracts is on the agenda
for tomorrow’s City Council meeting.
Those companies contacted me because, for over 30 years, my law practice has concentrated in the
automotive towing industry, particularly matters concerning government towing contracts. I
previously served as general counsel for the national trade organization for the towing industry. I am
also a member of the Ninth Circuit bar and have successfully represented many California towing
companies over the years. See, for example, Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir.
2000). In fact, in July 2005 I appeared in-person before the City Council and then-mayor Judith
Valles to address a previous towing contract proposal.
My purpose in writing you now is to request, on behalf of my clients, that the matter of the city
towing agreements on tomorrow’s (March 17) Council agenda (Item 22) be deferred for further
investigation and that the current contracts be extended through July 1, 2021. I do so for the
following reasons:
I. Background
The City acquires towing services needed by its police department by means of non-exclusive Tow
Service Agreements (TSAs). Wilson Towing and Armada Towing have competently and
professionally served the City under the current TSA. (Wilson Towing has served the City for over
70 years). They are unaware of any complaints about the services they have provided on behalf of
the city police department.
The current contracts under which they serve, along with the other four service providers, expire on
March 31, 2021. Accordingly, on December 16, 2020, the City Council approved a request for
The Honorable John Valdivia
Mayor, City of San Bernardino
March 16, 2021
Page 2
proposals (RFP) for towing services to begin on April 1, 2021. (Resolution 2020-306). The
specifications for towing services in the new RFP were radically changed, requiring substantial
investment in equipment and facilities by the existing contractors in order to qualify for the new
contract.
Of particular concern to my clients is the requirement that a successful bidder have a minimum of
31,500 square feet of PAVED vehicle storage area. That requirement was a late clarification to the
bid specifications, added in an addendum to the RFP on January 21, 2021. Given the lateness of
that addendum, potential bidders without paved storage lots had just over two months to obtain the
necessary engineering studies, apply for and obtain a city permit, and arrange for paving
contractors. Note that the paving requirement was added despite there being no apparent historical
problems with unpaved vehicle storage lots of the requested size.
Section 6 of the bid proposal (Resolution 2020-306) provided for a variance for time – until July 1,
2021 – to come into compliance with any bid specification. Only three companies requested a
variance, including my clients, Wilson Towing and Armada Towing. Both of them requested
variances in order to complete the process necessary to pave their vehicle storage lots.
The staff recommendation now before the Council establishes four (4) categories of bidders:
Category 1: Bidders who immediately qualify
A&G Towing
Category 2: Bidders who indicated that they will qualify by April 1. These bidders
are recommended for approval on the condition that they provide written
confirmation of compliance with all conditions by April 1.
Hayes Towing
Pepe’s Towing
Statewide Towing
Tri-City Towing
Category 3: Bidders who requested a bid variance for time to comply with the
paving requirement. These bidders are recommended for approval;
however, they would not be added to the new contract until the paving is
completed, but in no event later than July 1.
Wilson Towing
Armada Towing
The Honorable John Valdivia
Mayor, City of San Bernardino
March 16, 2021
Page 3
Category 4: Other bidders who requested a bid variance for time to comply with bid
requirements not relating to paving. These bidders are recommended for
approval; however, they would not be added to the new contract until they
came into compliance, but not later than July 1.
Danny’s Towing
Category 5: Bidders who did not qualify
Bill & Wags
Lair Towing
II. Wilson Towing and Armada Towing; variance to pave storage lot
As noted above, Wilson Towing and Armada Towing properly requested variances pursuant to
Section 6 of the bid proposal to allow them time to come into compliance with the late-added
paving requirement. Both companies have obtained and lodged the necessary engineering studies to
the Planning Division. Wilson Towing’s permit application was filed in December 2020 and
Armada Towing’s was filed in January 2021, after the contract amendment. They would have been
in compliance with all bid specifications on April 1; however, the Division has yet to inspect either
of their facilities or issue a permit for paving. That is why these two companies applied for a
variance. Although the variance until July 1 was granted, the recommendation is that they be
suspended from receiving calls until the paving is completed.
The inexplicable delay in the issuance of the permit is the only reason that Wilson Towing and
Armada Towing are not already in full compliance with the bid specifications. The City should
be estopped from penalizing Wilson Towing and Armada Towing – by means of a suspension from
the tow call list between April 1 and completion of paving – based on the delinquent response of its
Planning Division.
III. Non-compliant bidders
Only three bidders, including Wilson Towing and Armada Towing, requested a variance pursuant to
the terms of the bid proposal. The five companies in Categories 1 and 2, none of which requested a
variance, are recommended for approval starting April 1. That recommendation is based upon their
certification that they are in compliance with the specifications, or will be in compliance on April 1.
Those five companies are:
A&G Towing
Hayes Towing
Pepe’s Towing
Statewide Towing
Tri-City Towing
The Honorable John Valdivia
Mayor, City of San Bernardino
March 16, 2021
Page 4
In some instances, the certification of compliance is undeniably false. The bidder does not comply
with the bid specifications and cannot come into compliance by April 1. A simple inspection of the
facilities of the bidder, or review of city records, by city staff will readily reveal the following
material deficiencies:
► At least one bidder does not have a city business license, as expressly required by
the RFP
► At least one bidder does not have, and cannot obtain by April 1, the towing
equipment required by the RFP, including CHP inspection of such vehicles
► One bidder paved its vehicle storage lot without first obtaining the necessary city
permits
► One bidder does not have a paved storage lot and cannot possibly complete the
permit process and paving before April 1. A simple drive-by inspection of their
facility reveals that it is non-compliant, yet the staff recommendation is to approve
the issuance of a contract to that bidder beginning April 1.
It is important to note that none of the companies in Category 1 or Category 2 requested a variance
to allow time to cure the flagrant deficiencies. The deadline for requesting a variance has now
expired.
IV. Request to extend current contracts to July 1, 2021, and defer consideration of
Resolution 2021-63
In short, Wilson Towing and Armada Towing did the right thing. They did not feign compliance,
but properly requested a variance for time to complete the paving of their vehicle storage lots. They
now face the prospect of temporary suspension from the tow call list because of something
completely beyond their control: approval of a paving permit by the Planning Division. If the
suspension occurs, they will be forced to lay off employees and will suffer a tremendous loss of
income. An extension of their current contracts to July 1, along with a directive to the Planning
Division to take immediate action on their pending permit applications, is wholly justified under the
circumstances.
An extension of all the current contracts to July 1 will also allow additional time for the city staff to
thoroughly investigate the qualifications of the bidders. It appears that no inspection of any of the
bidders has been made. Any bidder with a material deficiency who did not seek a variance, but
instead falsely certified compliance with the RFP specifications, should be disqualified. See Cioffi's
Towing Serv., Inc. v. Borough of Collingswood, 2009 WL 3460308 (N.J. Super. App. Div. Oct. 26,
2009)(requirements of towing contract bid are not waivable).
The Honorable John Valdivia
Mayor, City of San Bernardino
March 16, 2021
Page 5
Thank you for your consideration of this request.
Sincerely yours,
Michael P. McGovern
Michael P. McGovern
MPM:eag
cc: Wilson Towing, LLC
Armada Towing
City Council members
Robert D. Field, City Manager
Sonia Carvalho, City Attorney
Captain Brian Pellis, SBPD Operations Division