Department of Finance | 1685 Main Street, Mail Stop 09 | Santa Monica, CA 90401 [email protected] | santamonica.gov/departments/finance Tel: (310) 458-8281 Fax: (310) 394-0647
November 5, 2024
Mr. Yossi Govrin
Maxima Art Initiative
433 Ocean Ave, #D
Santa Monica, CA 90402
Re: Protest of Request for Proposal No. 413 Santa Monica Airport Art Studios: Programming & Artist Relations Management
Dear Mr. Govrin,
Thank you for your October 22, 2024, letter (the “Letter”) on behalf of Maxima Art Initiative (“Maxima”). The Letter protests the award to Community Arts Resources (“CARS”) relating to Request for Proposal No. 413 Santa Monica Airport Art Studios: Programming & Artist Relations Management (the “RFP”).
In broad strokes, the Letter asserts that CARS should be disqualified because: (1) there is a purported conflict of interest; (2) CARS’s proposal exceeds the alleged $250,000 budget; and (3) the scoring of the CARS’s RFP is inconsistent with the criteria in the RFP.
The City has reviewed the Letter, and conducted a thorough investigation, including examining the RFP, the information provided in the Letter, and consulting with City staff. As explained below, I deny the protest as meritless.
There Is No Conflict of Interest Relating to Ryder Davis The Letter claims that CARS should be disqualified because of an alleged conflict of interest involving a temporary employee named Ryder Davis. The City has investigated this allegation and determined that there is no conflict of interest that would warrant disqualifying CARS for several reasons.
First, the RFP was issued on July 1, 2024 and Ryder Davis was not hired as a temporary employee until July 8, 2024 – a week after the RFP was issued. As such, Mr. Davis was not involved in the drafting or issuance of the RFP.
Second, although the Letter claims that the “Cultural Affairs Department itself is the one that evaluated the proposals and made the recommendations for award” – this is not correct.
Section 7.1 of the RFP notes that the City may retain third parties to evaluate the RFP submissions. In this case, none of the evaluation committee members who scored the RFP proposals were City employees to ensure neutrality. Mr. Davis was not involved in the scoring process at all.
Third, under Government Code Section 1090, when an employee is financially interested in a contract, the City is prohibited from entering into such a contract only if the employee was involved in the contract-making process.1If the employee played no role whatsoever in the contracting process, the City may contract with the employee or the business entity in which the employee has an interest. (See 80 Ops.Cal.Atty.Gen. 41 (1997) (no Section 1090 violation where two firefighters, in their individual capacities, enter a contract with the City [upon recommendation of the fire chief] for the purchase of protective masks developed entirely on their own time and without use of City materials); see also An Overview of Section 1090 and FPPC Advice – January 2024 (“When an employee of an agency, as opposed to a board member, has a financial conflict the employee’s agency may enter into the contract as long as the employee plays no role in the contracting process.”). 2 Mr. Davis had no role in the
contracting process, and did not influence it in any way. Similarly, there is no conflict under the Political Reform Act because Mr. Davis did not participate in making or influencing the RFP selection. See FPPC Reg. 18704.
The RFP Was Not Capped at $250,000 Annually
Maxima claims that the City’s “stated budget” is $250,000 per year, but this is incorrect. The proposed contract is not funded by the General Fund. Instead, it is funded solely through the operations of the Santa Monica Airport Art Studios. The reference to “up to $250,000 annually” is the projected revenue if all the spaces are leased and all lease payments are received in a timely manner. Additionally, the reference to $250,000 was not listed as an RFP requirement. The Evaluation Criteria for “Cost” did not identify $250,000 annually as a cap.
Therefore, Maxima’s argument that it should have been awarded more points on the Cost criteria because its proposal was under $250,000 annually is misplaced.
Maxima’s Challenge to the RFP Scoring is Rejected
The Letter challenges scores that CARS received for the Project Team and Experience criteria. As provided in Santa Monica Municipal Code Section 2.24.190, the “City shall have absolute discretion in determining the applicability and weight of the criteria listed above.” 1 The Legislature recently passed AB 334, which enacted Government Code section 1097.6, effective January 1, 2024. Section 1097.6 clarifies that an independent contractor that did not engage in or advise on public contracting will not qualify as an “officer” under Section 1090. Further, Section 1097.6 allows a public entity to contract with a contractor that worked on an earlier phase of a project, including planning, discussions, or drawing of plans or specifications during an initial stage of a project under certain circumstances.
2 https://www.fppc.ca.gov/content/dam/fppc/NS-Documents/LegalDiv/section1090/Section%201090%20-%20Overview%20-%20Oct%202024.pdf The City has reviewed the scores awarded to CARS for these criteria and believes that the scores are appropriate.
The City appreciates your participation in our solicitation process. Should you have any further questions, please contact our Procurement Manager, Teresa Villa at 310-458-8242.
Sincerely,
Oscar Santiago
Director of Finance / City Treasurer
Cc: Request for Proposal No.413 File
Procurement Manger
Buyer of Record