According to Judge Jay H. Robinson, the county appears to have decided to ignore the public bidding process in favor of awarding the ambulance service contract to its preferred vendor, Consolidated Fire Agencies, or CONFIRE, a joint operation of 15 area fire departments.
Instead of following state law, the county took the process of selecting an ambulance service provider “into a kingdom of uncertainty where proposals rise and fall based on arbitrary and capricious exercises of discretion,” Robinson’s 38-page preliminary injunction reads in part.
“By inventing a new procurement process, county defendants willingly broke free from the constraints of a state-approved process,” Robinson continued in his Oct. 29 ruling. “This decision amounted to an evidence-free policy change of ambiguous motivation.”
The preliminary injunction put on hold the county’s plan to switch ambulance service over CONFIRE, Priority Ambulance, County and City Fire departments which was to have happened in October. Instead, AMR continues to provide ambulance service across the unincorporated areas of the country’s largest county along with some cities that contract with the county.
Case Summary (Original)The Plaintiff's Case
AMR and CONFIRE were the only two providers to submit proposals for consideration.
None of the fifteen member agencies of CONFIRE have ever provided ambulance transport in an EMS system of the size and scope of San Bernardino County, California—which is the largest county in the United States.
CONFIRE and its member agencies lack the resources and capabilities to perform the services contemplated in the RFP. CONFIRE’s proposal indicated that it would be able to fulfill the RFP’s requirements by subcontracting with a private ambulance provider, Priority Ambulance, LLC.
AMR believes, and on that basis alleges, that if CONFIRE be permitted to begin providing ambulance service under the exclusive contract awarded by the County, CONFIRE has admitted that it will charge ambulance service payors for more than the cost of service it incurs to provide the service. Moreover, on information and belief, CONFIRE’s proposed ambulance rates do not include any rate offset to account for the additional revenue it would generate through government funding sources, such as the Public Provider Intergovernmental Transfer PPIGT program. In this regard, CONFIRE will impose a charge that California Constitution Article XIII C deems a “tax” requiring voter approval—which has not been obtained and for which no exception under § 1(e) of the article is provided. The rules governing PPIGT are found here, Welf. & Inst. Code § 14105.945
The Board of Supervisors should grant AMR’s protest and carry out its ministerial duty to award the exclusive ambulance services contract based solely on the procedures mandated by the state-approved RFP.
Antitrust Law
AMR and CONFIRE were the only two providers to submit proposals for consideration. The lack of overall competition doesn't support a claim of noncompetition as the reason for bias.
Writ of Mandate
AMR must prove that the CONFIRE proposal was improper and that the bid's deviation from specifications facilitates corruption or extravagance. In a mandamus action challenging the award of a public contract, there is a presumption that the agency's actions were supported by substantial evidence, and the challenger has the burden of proving otherwise.
The Law
AMR and CONFIRE were the only two providers to submit proposals for consideration. The lack of overall competition doesn't support a claim of noncompetition as the reason for bias.
Writ of Mandate
AMR must prove that the CONFIRE proposal was improper and that the bid's deviation from specifications facilitates corruption or extravagance. In a mandamus action challenging the award of a public contract, there is a presumption that the agency's actions were supported by substantial evidence, and the challenger has the burden of proving otherwise.
Cases of Note
Advertising company's request for writ of mandate to order county to terminate contract with company's competitor due to alleged defects in the bidding process and to award contract to company was moot, as contract had expired and new invitation to bid had been issued, and there was no allegation that the recent bid invitation or any contracts awarded as a result of that bid invitation were improper. Daily Journal Corp. v. County of Los Angeles (App. 2 Dist. 2009) 92 Cal.Rptr.3d 219, 172 Cal.App.4th 1550.
To merit setting aside a bid for a public contract, a bid's deviation from specifications must be capable of facilitating corruption or extravagance, or likely to affect the number of bids or the response of potential bidders. Cypress Security, LLC v. City and County of San Francisco (App. 1 Dist. 2010) 109 Cal.Rptr.3d 107, 184 Cal.App.4th 1003.
Advertising company's request for writ of mandate to order county to terminate contract with company's competitor due to alleged defects in the bidding process and to award contract to company was moot, as contract had expired and new invitation to bid had been issued, and there was no allegation that the recent bid invitation or any contracts awarded as a result of that bid invitation were improper. Daily Journal Corp. v. County of Los Angeles (App. 2 Dist. 2009) 92 Cal.Rptr.3d 219, 172 Cal.App.4th 1550.
To merit setting aside a bid for a public contract, a bid's deviation from specifications must be capable of facilitating corruption or extravagance, or likely to affect the number of bids or the response of potential bidders. Cypress Security, LLC v. City and County of San Francisco (App. 1 Dist. 2010) 109 Cal.Rptr.3d 107, 184 Cal.App.4th 1003.
15 U.S.C. § 1 – Violation of Sherman Antitrust
The Sherman Antitrust Act is a landmark U.S. law that banned businesses from colluding or merging to form a monopoly. Passed in 1890, the law prevented these groups from dictating, controlling, and manipulating prices in a particular market. The law prohibits activities that restrict interstate commerce and competition in the marketplace. It was intended to "preserve free and unfettered competition as the rule of trade" for the benefit of consumers.
The Sherman Antitrust Act is a landmark U.S. law that banned businesses from colluding or merging to form a monopoly. Passed in 1890, the law prevented these groups from dictating, controlling, and manipulating prices in a particular market. The law prohibits activities that restrict interstate commerce and competition in the marketplace. It was intended to "preserve free and unfettered competition as the rule of trade" for the benefit of consumers.
California Civil Code of Procedure §1060
Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.