John Lynn Smith (SBN 154657)

Dennis Peter Maio (SBN 99894)

Phillip H. Babich (SBN 269577)
Katrina M. Kershner (SBN 294045)
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone: (415) 543-8700
Facsimile: (415) 391-8269

ENDORSED
"""
FILED
ALAMEDA COUNTY

AUG 1 8 2014

6 John M. Potter (SBN 165843)

Derek Tang (SBN 296230)
7 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
8 50 California Street, 22nd Floor
San Francisco, CA 94111-4788
9 Telephone: (415) 875-6600
Facsimile: (415)875-6700
10
Attorneys for Plaintiff and Petitioner
11 Waste Management of Alameda County, Inc., a
California corporation
12

CL HK OF 1 HE SUPERIOR COURT

13

SUPERIOR COURT OF THE STATE OF CALIFORNIA

14

FOR THE COUNTY OF ALAMEDA

15
16 WASTE MANAGEMENT OF ALAMEDA
COUNTY, INC., a California corporation,
17
Plaintiff and Petitioner,
18
vs.
19
CITY OF OAKLAND; CITY COUNCIL OF
20 OAKLAND; CITY ADMINISTRATOR OF
OAKLAND; THE PUBLIC WORKS
21 DEPARTMENT FOR THE CITY OF
OAKLAND; and DOES 1-100, inclusive,
22
Defendants and
23
Respondents.

No.i

14 7 3 7 2 0 4

VERIFIED PETITION FOR WRIT OF

MANDATE OR OTHER
EXTRAORDINARY RELIEF AND
COMPLAINT FOR DECLARATORY
RELIEF

24
25 CALIFORNIA WASTE SOLUTIONS, INC., a
California corporation.
26
Real Party In Interest.
27
28
-1-

US_ACTIVE-118212584 23

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

Plaintiff and Petitioner Waste Management of Alameda County, Inc. ("WMAC) petitions

2 this Court for a traditional writ of mandate pursuant to California Code of Civil Procedure section
3 1085 directing the City Council of Oakland ("City Council"): (1) to reject and/or repeal any
4 Ordinance or Ordinances awarding California Waste Solutions, Inc. (''CWS") three separate
5 contracts for Mixed Materials & Organics Collection Services, Residential Recycling Collection
6 Services, and Disposal Services as part of the City of Oakland's ("City") Zero Waste Services on the
7 grounds that (a) the City Council's action in awarding such contracts constitutes a clear violation of
8 the established Zero Waste Services procurement process, authorized by City resolutions; (b) CWS's
9 proposals were untimely, non-conforming, and in violation of said procurement process and were
10 based on the unauthorized disclosure of confidential and proprietary pricing and other information
11 provided by WMAC to the City on the condition, and based upon the City's representation, that it
12 would be held in confidence until the award of the three contracts; and, (c) the City's actions in the
13 adoption of the referenced ordinances and the award of the contracts were arbitrary, capricious, and

14 inconsistent with the proper and approved procedures; or (2) to show cause why a writ of mandate
15 should not issue. WMAC has pursued, and exhausted, all available and/or required administrative
16 remedies, without obtaining any relief. WMAC also seeks declaratory relief.

17
In support of this Petition and Complaint ("Petition"), WMAC alleges as follows:
18
INTRODUCTION

19
20
1.

The Oakland City Council ("City Council") has violated the public trust and put the

21
citizens of Oakland at risk by illegally manipulating and abandoning its self-imposed procurement
22
process by awarding contracts for solid waste collection and disposal services to a company whose
23
24
25
26

proposals were untimely, non-conforming, based on a competitor's confidential information, and

insufficient to meet the City's Zero Waste Services goals. The contracts are worth a combined
amount of more than $1 billion and obligate Oakland residents to the service provider for 20 to 30
years.

27
28

2.

By violating its obligations and duties to the public, the City Council has undermined
- 2

US_ACTIVE-118212584 23

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 the entire Zero Waste initiative established by the City in 2006.

2
3

3.

The City Council's actions appeared heavily swayed by long-term personal and

political connections with the designee of the contracts, California Waste Solutions, Inc. ("CWS"),

4
as the City Council on two separate occasions acted to ensure that the contracts would be awarded to

5
CWS over the strong, detailed, and convincing recommendations of the public agency responsible

6
for evaluating Zero Waste proposals, the Oakland Public Works Department ("City Staff). Indeed,

7
8
9
10
11
12
13
14

despite comprehensive reports and recommendations from the City Staff supporting WMAC's bids
as the best proposals and identifying CWS's proposals as "highly problematic and risky," the City
Council chose CWS. The City Council's actions serve to deprive citizens of the improved
environmental conditions that were the primary objective of the procurement process, and highlight
the harm caused by a public body deciding to act in its own best interest instead of the best interests
of those whom it serves. Such blatant manipulation of the governmental contracting and
procurement process mandates repeal of the City Council's legislative actions awarding the Zero
Waste Services contracts to CWS.

15
16

4.

The City Council approved a competitive procurement process for the City's Zero

17 Waste Services contracts on February 1, 2012, as part of an effort to become one of the greenest
18 cities in the country. The Zero Waste Request for Proposals ("RFP") sought bids for three contracts:
19 (1) the garbage and organics franchise, a 10-year deal with two five-year extension options for
20 citywide collection and processing of mixed materials and organics with the transfer and transport of
21 residual materials to a landfill; (2) the residential recycling franchise, which has a 10-year term, with
22 two five-year extension options, for citywide collection and processing of recyclables; and (3) the
23 landfill disposal contract, a 20-year commitment with two five-year extension options, which is for
24 the landfill capacity of the City's garbage. The existing contracts for those services expire on June
25 30,2015.
26
5.

The RFP set forth mandatory requirements for proposers, which included, but were

27
not limited to, identifying details of the proposed disposal and processing facilities, notice of the use

28
-3VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 of partners or subcontractors, and references from other municipalities as well as a bid bond, all by a
2 date certain. Recognizing the importance of the Zero Waste initiative and the expense that would be
3 incurred by bidding participants, the City Council established detailed procedural requirements that
4 included a commitment to uphold "the highest professional and ethical standards" as part of the Zero
5 Waste Protocol for Process Integrity. However, in its apparent effort to ensure that CWS would
6 become the beneficiary of the process, the City Council rebuffed the very standards it had imposed
7 and blatantly violated its commitments to the public and to WMAC.
8
6.

In reliance on the approved procurement process, WMAC spent more than

9
$1,000,000 over two years generating and submitting innovative proposals for Zero Waste collection
10
and disposal services. Not until the end did WMAC realize that despite its best efforts and superior
11
12
13
14

proposals the City Council was dedicated to subverting the process to ensure CWS's success, even
with respect to the disposal contract which neither CWS nor its only recently identified "partner"
Republic Services, Inc. ("Republic Services"), ever bid for until more than a year after the RFP's
deadline. The RFP rules mandate that the City reject untimely proposals. The City Council,
15

however, took action that was in direct contradiction to the RFP rules, and to the advice and
16
recommendations of the City Staff responsible for assessing RFP submissions.
17
18

7.

After a thoughtful and nearly two-year decision-making process, City Staff, with the

19 concurrence of the City Administrator, submitted a detailed report to the City Council on May 29,
20 2014, recommending that the City award all three Zero Waste Services contracts to WMAC. City
21 Staff recommended against CWS's proposals for the waste collection and recycling contracts
22 because they were "weak." City Staff found that CWS's proposals were "highly problematic and
23 risky," because CWS's acquisition of necessary land would be delayed, and CWS's "processing
24 would not meet the requirements of the [waste] franchise contract."
25

8.
26
27

City Staffs recommendation was understandable because only WMAC, which either

directly or through its predecessors has picked up garbage in Oakland for more than 100 years, has
the requisite assets and experience to meet the city's Zero Waste Initiative on day one of the

28
^4^
VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 contracts. CWS has publicly claimed that meeting the City's environmental goals is not "rocket
2 science." In fact, the resources and experience needed to divert solid waste from landfill disposal
3 necessary to meet zero waste goals requires extensive industry knowledge and experience to: (i)
4 properly service all city residential and commercial routes in a timely and efficient manner: (ii)
5 process the material over fully developed sort lines to achieve the highest diversion rates mandated
6 by the City; (iii) immediately deploy new clean-fuel vehicles for all types of service routes; and (iv)
7 manage the waste streams in a manner that optimally diverts organics from landfill disposal in order
8 to reduce greenhouse gas emissions. This requires a fully permitted, functional and statc-of-the art
9 transfer and processing center, which WMAC owns and has operated for decades, but which CWS
10 admittedly does not have. In fact, the City's independent consultant ranked CWS's plan to try to
11 permit even an interim facility by the start date of the contract as a "moderate to high risk."
12
13
14
15
16
17
18

9.

Moreover, it is undisputed that CWS's planned "permanent" facility is not permitted,

not built, and the land on which it is intended to exist is not even owned yet by CWS. Consequently,
the best CWS can reasonably offer is to transport the City's waste out of the county to a Richmond
processing site owned by a company that deliberately chose not to bid on Oakland's Zero Waste
contracts. As such, CWS has admitted to the City that it will not be able to meet all of the Zero
Waste Services objectives beginning on day one of the contract, and that some services will be
delayed by as many as five or more years.

19
20

10.

The City Council blatantly ignored the repeated reports and recommendations of City

21 Staff that highlighted the defects in CWS's proposal, and ignored the glaring fact that WMAC is the
22 only proposer in the bid process that timely bid on all three aspects of the RFPwaste collection,
23 residential recycling collection, and disposal consistent with the terms and conditions of the RFP and
24 without the confidential information of a competitor. While WMAC bid for all three services, CWS
25 originally bid on only two of themdeliberately choosing not to bid for the disposal services

26 contract, presumably because it does not, and never has, owned or operated a landfill in the United
27 States. CWS currently handles only half of the City's residential recycling routes. It does not
28 handle the City's garbage collection and, as mentioned, it has no infrastructure or demonstrated
-5VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 capabilities to handle the City's disposal services.

2
11.

Indeed, CWS has never handled disposal services for any municipality in the United

3
States. Nonetheless, the City Council tossed out the May 2014 recommendations of City Staff and

4
the City Administrator, and abandoned its authorized procurement process in favor of giving CWS a

5
second bite at the apple. In doing this, the City Council allowed Republic Services, a national

6
company based in Arizona, which deliberately chose not to bid on the contracts, to now participate

7
through the back door without ever having submitted a response to the RFP. There was no

8
9

authorizing resolutionnot even an item on the Council agendathat permitted the City Council to
derail the two-year long bidding and procurement process in such a way. But by doing so, the City

10
Council gave David Duong, president of CWS, with whom a number of Councilmcmbers have close

11
ties, an unauthorized opportunity to belatedly bid for the disposal services contract without having to

12
satisfy any of the mandatory requirements to be an eligible proposer.

13
14

12.

Not only did CWS get an unauthorized second chance, the City Council made sure

15 that CWS was also provided with proprietary proposal information submitted by WMAC. In a
16 blatant denial of procedural fairness and to provide a clear advantage to CWS, the City Council
17 forced City Staff to reveal WMAC's confidential and proprietary information to CWS while
18 negotiations were on-going. Such disclosures were clearly in violation of the RFP process. WMAC
19 provided City Staff this proprietary information on the condition, and with the agreement, that City
20 Staff would hold it in confidence until the City awarded the contracts. This unlawful use of
21 information allowed CWS to revise and resubmit its waste and recycling proposals, and to submit,
22 for the first time in July 2014, an untimely proposal for disposal services, all with the benefit of
23 having WMAC's pricing information and negotiated agreements. Revealing such information to
24 CWS also denied Oakland residents from getting a fair bidding and procurement process, which was
25 intended to ensure that properly priced and competent services meeting the Zero Waste goal would
26 begin on day one of the new contracts.
27
28

13.

Nevertheless, just as it had warned in May 2014, City Staff reported to the City
= _6^

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 Council again in July 2014 that "the risks [of choosing CWS's proposal for all three services]
2 outweigh the monetary benefit that might accrue to taxpayers." Those risks included the lack of
3 agreement between multiple parties necessary to perform the services, CWS's failure to obtain the
4 necessary permits, and the delay of multi-family mixed material processing that would "seriously
5 imped[e] the City's achievement of its Zero Waste diversion goals." City Staff was not alone in
6 finding that WMAC, not CWS, should handle the City's Zero Waste Services. The City's
7 independent consultant found, among other things, that it is "not plausible" for CWS to obtain a
8 solid waste facility permit at a new proposed facility in time to start receiving the City's waste and
9 organics on day one of the contracts.
10
14.

An essential component of CWS's July 2014 bid is the inclusion of Republic Services

11
to handle disposal operations and backstop CWS on those necessary services that CWS admittedly
12
can either not perform or does not have the infrastructure to handle. Republic Services, which
13
deliberately did not participate in the RFP process, has interfered with negotiations between the City
14
and WMAC by becoming deeply involved in the process at the last minute in violation of the RFP
15

deadlines. Republic Services engaged CWS and the City Council to improperly utilize WMAC's
16
17
18
19
20

proprietary information and to submit a bid that lacked any compliance with RFP requirements. The
City Council did not require Republic Services to put up a bid bond, disclose RFP-required
information, or meet any other RFP process requirement. Without interference by non-bidder
Republic Services, CWS clearly would not have the ability to dispose of or process the trash it
collects under the contracts.

21
22

15.

The City Council again wholly ignored City Staffs recommendation, torpedoed a

23 two-year process that was supposedly committed to high ethical standards, and awarded all three
24 contracts to a company that does not have, and may never have, an Oakland-based processing site,
25 may not use clean-fuel vehicles for all recycling collection as was required by the RFP, will not
26 achieve the diversion rates met by WMAC, and admittedly will not meet all Zero Waste Services
27 requirements on day one of the new contracts. Moreover, because CWS does not have the ability to
28 perform on day one, a substantial part of the new services will be performed by an Arizona-based
-7VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 corporation that rejected the offer to bid on the Oakland contracts, never provided the references,

2 litigation history, bid bond, or other performance commitments required under the RFP, was never
3 evaluated as required by the RFP, and instead was allowed to "back-door" its proposal to the City
4 Council. Moreover, there is no direct contract with Republic, so it is uncertain how the City will
5 even enforce these obligations.
6
16.

The very ordinance awarding the collection contract to CWS acknowledged the clear

7
defects in CWS' proposal. For example, it admits that CWS does not have the facilities necessary to
8
provide basic collection services, and that it still needs regulatory approval to construct "one or more
9
10
11
12

13
14
15
16
17

new facilities for processing and transfer of Mixed Materials and Organics and must enter into final
agreements with entities not party to the Contract for processing and transfer of Mixed materials and
Organics. Franchisee has not received final regulatory approval for or completed construction of
those facilities and has not entered into final agreements with the non-party entities at the time that
Ordinance was adopted. In addition, Franchise's ability to procure the necessary vehicles and
containers within the time frames required under the Contract is uncertain." The Council ignored
these alarming defects and awarded the contracts anyway, with some Council members publicly
acknowledging that they were comfortable in doing so because Republic Services, a non-bidder,
who is under no contractual obligation, said it will step in when CWS fails.

18
19

17.

This is a City Council that has forgotten that it serves the public and has forgotten that

20 it cannot choose to ignore fairness, due process, and City residents in its public bid processes. The
21 City Council chose the process it wanted, and legally obligated itself to follow, but along the way
22 appeared to give precedence to its ties to CWS over enforcing its own process protocol, or in
23 maintaining its commitment to Zero Waste goals. WMAC is the only bidder to have complied with
24 the process, yet this City Council has decided to award the contract to a company that cannot comply
25 with all RFP requirements and to involve Republic Services, which intentionally declined to even
26 propose on Zero Waste Services when the RFP was first issued.
27
28
8VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

PARTIES

1
2
18.

Petitioner WMAC is, and at times mentioned in this Petition was, a corporation duly

3
organized and existing under the laws of the State of California, with its principal place of business

4
in Oakland, California. WMAC owns and operates solid waste and recyclable material collection

5
facilities in Oakland, California, and the Altamont Landfill and Resource Recovery Facility

6
("Altamont Landfill") near Livermore, Alameda County, California.

7
8

19.

The City is, and at all times mentioned in this Petition was, a charter city organized

9 and existing under the laws of the State of California. The City has, through its City Council, the
10 authority and duty to approve and enter into contracts for the collection and disposal of municipal
11 solid waste and recyclable material. The City has the present ability to perform that duty.
12
20.

The City Council is, and at all times mentioned in this Petition was, the elected

13
legislative body of the City with the authority and duty to approve and enter into contracts for the

14
collection and disposal of municipal solid waste and recyclable material. The City Council has the

15

present ability to perform that duty.

16
17

21.

The City Administrator is, and at all times mentioned in this Petition was, a City

18 government official responsible for carrying out the RFP and contracting process for procuring the
19 City's services for collection and disposal of municipal solid waste and recyclable material.
20
22.

The Public Works Department of the City of Oakland is, and at all times mentioned in

21
this Petition was, a City government agency responsible for carrying out the RFP and contracting

22
process for procuring the City's services for collection and disposal of municipal solid waste and

23
recyclable material.

24
25

23.

Real Party in Interest CWS is, and at all times mentioned in this Petition was, a

26 corporation duly organized and existing under the laws of the State of California, with its principal
27 place of business in Oakland, California. CWS owns and operates recyclable material collection
28 facilities in Oakland, California.
-9VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

24.

WMAC is ignorant of the true names and capacities of respondents named as Does 1

2 through 100, inclusive, and therefore names those parties by such fictitious names. WMAC will
3 amend this Petition to allege their true names and capacities when they have been ascertained.
4 WMAC is informed and believes and on that basis alleges that each of the respondents named as a
5 Doe is responsible in some manner for the events that are alleged and is liable to WMAC as set forth
6 herein.
7
25.

WMAC alleges that at all times mentioned in this Petition each and every defendant

8
and respondent was the agent and employee of each and every other defendant and respondent, and
9
in doing the acts alleged, was acting within the course and scope of such agency and employment,
10
and was acting with the consent, permission, and authorization of each of the remaining defendants
11
and respondents. All actions by each defendant and respondent herein were ratified and approved by
12

each of the other defendants and respondents.

-J S

x -g
fc: e

13

if
21
w 5

14

=
a-

JURISDICTION AND VENUE

15

26.

This Court has jurisdiction pursuant to sections 1060 and 1085 of the Code of Civil

16
Procedure.
17
18

27.

Venue for this action is proper in this Court pursuant to sections 393 and 394 of the

19 Code of Civil Procedure.

20
28.

Moreover, WMAC properly protested the City's actions in a timely manner at each

21
and every appropriate and available opportunity, including in written and oral communications, and
22
at hearings before the City Council. The City ignored or rejected WMAC's protests. Accordingly,
23
no administrative remedies remain available to WMAC and, as a result, WMAC has exhausted all
24
administrative remedies.
25
26

29.

Additionally, WMAC has standing to initiate this lawsuit as it has a beneficial interest

27 in the outcome of this lawsuit in light of its status as one of only two qualified proposers that
28 submitted a conforming response to the RFP for Zero Waste MM&O and RR Collection Services
-10VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 contracts and as the only qualified proposer that submitted a conforming proposal for the Disposal

2 Services contract.
3
FACTUAL BACKGROUND
4
5 A.

The City Established A Request For Proposals (RFP) Process To Award Contracts For

Its Zero Waste System.

7
30.

In 2006, the City Council passed and adopted a "Zero Waste Goal," which set forth a

8
plan to significantly reduce the amount of City waste disposed in landfills by 2020. (Ex. 1
9
(Resolution No. 79774 C.M.S.).)
10

11

31.

On January 17, 2012, the City Council adopted a Zero Waste System design that

12 provided the framework for developing new contracts under a single franchise for citywide solid
13 waste and organics collection services, a single franchise for citywide residential recycling, and
14 disposal services at a landfill with capacity for the City's waste stream. (Ex. 2 (Resolution No.
15 83689 C.M.S.).)
16

32.

On February 21, 2012, the City Council approved and adopted the use of a

17

competitive procurement process through a Request for Proposals ("RFP") for the new Zero Waste
18
contracts for Mixed Materials and Organics ("MM&O") Collection Services (Services Group 1),
19
Residential Recycling ("RR") Collection Services (Services Group 2), and Disposal Services
20
(Services Group 3). (Ex. 3 (Resolution No. 83729 C.M.S.).) The Resolution stated that "the City's
21
mission and goals for procurement include upholding the highest ethical and professional standards."
22
{Id.) The City Council's Resolution adopted the RFP process, a schedule, and a protocol for process
23
integrity. {Id.)
24
25

33.

The RFP process provided that prospective respondents could submit proposals for

26 more than one Zero Waste contract. (Ex. 4 (Zero Waste RFP Protocols) at 5.)
27
28
-11VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 B.

The RFP Required Strict Adherence To Procedures, Guidelines, And Deadlines.

2
34.

The RFP stated that "The City wishes to provide the opportunity for qualified

3
companies to propose on one (1) or more Service Groups. Each proposer may propose on any or all
4
of the requested Service Groups. However, proposers who wish to propose on more than one (1)
5
6

Service Group must submit a separate proposal for each Service Group." (Ex. 5 (RFP SG3) at 11:33-37 (emphasis in original); see also Ex. 6 (RFP SGI and SG2) at 1-1.)

7
8

35.

The RFP further provided that "An RFP response will be deemed non-responsive if

9 not accompanied by a proposal surety in the amount of One Hundred Thousand Dollars ($100,000)
10 as described in Section 4.15 of this RFP." (Ex. 5 at 1-3:121-123; see also Ex. 6 at 1-4:152-157.)
11
36.

Proposals for the Disposal Services contract were initially due by December 12, 2012

12
(Ex. 5 at 1-4), but by addendum the City changed the due date to January 9, 2013. No extensions
13

were granted beyond that date. (Ex. 7 (Addendum No. 6 to RFP for Disposal Services).)
14
15

37.

Proposals for the MM&O and RR Collection Services contracts were initially due by

16 December 12, 2012 (Ex. 6 at 1-3), but by addendum the City changed the due date to January 9,
17 2013. No extensions were granted beyond that date. (Ex. 8 (Addendum No. 11 to RFP for

18 Collection Services).)
19
20
21
22
23
24

25
26

38.

Mandatory RFP requirements included: "Proposers intending to submit a proposal to

provide Disposal Services must provide the following information no later than 4:00 p.m. PDT on
Friday, August 15, 2012. Name of Disposal Facility; Address of Disposal Facility; Name of facility
where materials may be delivered if different from the Disposal Facility; and. Address of facility
where materials may be delivered if different from the Disposal Facility." (Ex. 5 at 1-5:148-149
(emphasis in original).) "Failure to provide this information in the time and manner set forth
above will result in the disqualification of a proposer and their proposal to provide Disposal
Services will not be accepted." {Id. at 1-5:165-167 (emphasis in original).)

27
28

39.

Other mandatory RFP requirements for the Disposal Services contract included:
-12-

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 "Proposals not submitted on the prescribed proposal forms shall be deemed non-responsive. By
2 submitting a proposal, the proposer agrees to be subject to all terms and conditions specified herein.
3 Except as otherwise set forth in this RFP, no exception to the terms and conditions shall be allowed.
4 Submittal of a response to this RFP constitutes a binding offer by the proposer that shall be open for
5 a period of no less than eighteen (18) months from the date of submittal." {Id. at 4-1:373-378.)
6
40.

The RFP for the MM&O and RR Collection Services contracts required: "If two (2)

7
or more proposers intend to submit a proposal as part of a joint venture or partnership, that
8
information must be provided in writing, either by email or US Postal Service, by the parties no later
9
than 2:00 p.m. PDT on Wednesday, October 31, 2012 to ... R3 Consulting Group, Inc." This
10

deadline was not extended under the RFP. (Ex. 6 at 1 -6.)

11
12

41.

An exception to the RFP terms and condition permitted a proposer to propose

13 alternatives and/or exceptions to provisions in the proposed Disposal Services contract: "Proposers
14 may submit alternatives or exceptions to the services listed in this RFP to the extent that such

15 alternative or exception is an improvement in service or price." (Ex. 5 at 4-14:895-896.)

16 Importantly, this provision required a proposer to identify any such alternatives or exceptions as part
17 of its proposal otherwise the proposer would not be able to negotiate such changes at a later time:

18 "Proposers should note that in the event of Disposal Services Contract award, the proposer
19 will not be allowed to request the discussion of any exceptions or alternatives that were not
20 provided by the proposer in the proposal alternatives and exceptions portion of their
21 proposal." {Id. at 4-14:903-4-15:906 (emphasis in original).)
22
42.

The RFP for each of the Zero Waste Services contracts required strict adherence to

23
the proposal deadline: "Any proposal received after the date and hour specified will be rejected and
24

returned unopened to the proposer." {Id. at 4-6:594-595; Ex. 6 at 1-4.)

25
26

43.

The RFP provided that "After the RFP evaluation process is completed, the City

27 Administrator will recommend the top ranked proposer to the City Council for authorization to enter
28 into negotiations. After completion of negotiations to the satisfaction of the City, the City
-13VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 Administrator will request authorization from the City Council to enter into a contract with the

2 proposer. City Council will then make a decision whether to authorize the City Administrator to
3 execute a contract with the proposer." {Id. at 4-18:1021-1025.)
4
44.

The RFP provided protest procedures in the event a proposer wanted to contest the

5
City's ranking determination: "If an unsuccessful proposer wants to dispute the City's proposal
6
ranking determination, the protest must be submitted in writing to the City Administrator appointed
7
Protest Hearing Officer no later than five (5) City business days after announcement of the City's
8
determination, detailing the grounds and factual basis and providing all supporting information.
9
Protests will not be considered for disputes of proposal requirements and specifications, which must
10

be addressed in accordance with Section 4.4 of the RFP. Failure to submit a timely written protest to
11
the Protest Hearing Officer will bar consideration of the protest." {Id. at 4-17:1007-1013.)
12
13 C.

WMAC Satisfied All RFP Requirements And Timely Submitted Proposals For All

14

Three Zero Waste Services Contracts; CWS Did Not Submit A Proposal For The

15

Disposal Services Contract, Nor Did Any Other Proposer.

16
17
18
19
20

45.

WMAC timely provided to the City information on its proposed disposal facility by

August 15, 2012, and stated its intent to submit a proposal for the Disposal Services contract, as
required by the RFP for the Disposal Services contract. CWS did not provide any of the requested
information or expression of intent as required by the RFP by the requisite deadline; neither did
Republic Services.

21
22

46.

On January 9, 2013, WMAC submitted comprehensive responses to the City for all

23 three Zero Waste Services contracts. The responses conformed to all requirements set forth in the
24 RFP, including submitting a $100,000 proposal surety and a $5,000,000 performance bond

25 commitment letter. (Ex 9 (WMAC Proposal for Disposal Services (Jan. 9, 2013) at 13-22.)
26
27

47.

With regard to its proposal for the Disposal Services contract, WMAC proposed that

disposal services would occur at the Altamont Landfill. {Id. at 3.) The Altamont Landfill has
28
- 14VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 continuously accepted the City's waste since 1980. {Id.) The Landfill is an approved facility under

2 the California Environmental Quality Act. {Id. at 53.) The Landfill is also in compliance with local,
3 state, and federal laws and regulations on environmental protection, water resources, and solid waste
4 management. {Id. at 65-66.)
5
48.

In addition, the Altamont Landfill generates 85 percent less greenhouse gas ("GHG")

6
emissions than similar landfills, and has an extensive landfill gas ("LFG") capture system for reusing
7
LFG as a renewable energy. {Id. at 18.) The Landfill also has a wind farm, CNG fueling station,
8
conservation easements, wildlife habitats, tire recycling, and construction and demolition material
9
recycling, and also plans to implement enhanced composting measures to significantly reduce
10

emissions of air pollutants. {Id. at 54.)

11

49.

12

Moreover, WMAC's proposal provided the City a long-term disposal capacity

J -5

x i

13 guarantee that offered 20 to 30 percent excess capacity and life expectancy of greater than 34 to 45

fc:

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u I
a-

14 years, based on current disposal rates. {Id. at 63.) The Landfill's permitted daily capacity is 11,150

15 tons and the Landfill has a remaining life capacity of more than 43,000,000 tons. {Id. at 67.)
16
50.

WMAC is informed and believes and thereon alleges that CWS's untimely and non-

17
conforming proposal for the Disposal Services contract to use the Vasco Road Landfill as the
18
primary facility does not and cannot meet the City's disposal requirements for 20 years as specified
19
20
21

in the RFP. The use of the Keller Canyon Landfill in Contra Costa County as a backup facility
presents additional problems because of its limited hours of operation and inability to accept food
waste.

22
23

51.

On January 9, 2013, CWS submitted a proposal for the MM&O Collection Services

24 contract and the RR Collection Services contract. CWS did not submit a proposal for the Disposal
25 Services contract at that time. No company other than WMAC submitted a proposal for the Disposal
26 Services contract either.
27
52.

CWS did not submit the names of any entities with which it intended to perform any

28
-15VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 of the Zero Waste Services in a joint venture or partnership, as required by the RFP.

2
D.

The City Administrator Determined That WMAC Was The Top-Ranked Proposer For

3
AH Three Zero Waste Services Contracts And Recommended That The City Council
4
Award WMAC The Contracts, But The City Council Illegally Re-Opened The Bid
5
Process.
6
7

53.

City Staff determined that WMAC and CWS were the top-ranked proposers for the

8 MM&O Collection Services contract (Service Group 1) and the RR Collection Services contract
9 (Service Group 1), and that WMAC was the top-ranked and only proposer for the Disposal Services
10 contract (Service Group 3). (Ex. 10 (City Staff Report (May 16, 2013)).)
11
54.

On May 16, 2013, City Staff recommended that the City Council approve a resolution

12
that would authorize the City Administrator to enter into negotiations with WMAC and CWS for the
13
MM&O and RR Collection Services contracts (Service Groups 1 and 2) and with WMAC for the
14

Disposal Services contract (Service Group 3). {Id.)

15
16

55.

On June 18, 2013, the City Council passed a resolution that "authorized the City

17 Administrator to enter into contract negotiations with the top-ranked proposers in each of the three
18 service groups identified in the RFP for Zero Waste Services in order to comply with the policy
19 direction provided by the City Council, as summarized in Exhibit A to provide the best value to the
20 City and the Community." (Exhibit 11 (Resolution No. 84461 C.M.S.) (emphasis in original).)
21
56.

CWS did not protest the City's ranking determinations within 5 days of the passage of

22
Resolution No. 84461, or at any other time. In addition, no other proposer, or non-proposer,
23
protested the City's ranking determinations or the City's directed course of action.
24
25

57.

On May 22, 2014, the City Staff recommended to the City Council "that the City

26 Council accept this supplemental report regarding staff recommendation that the City Council adopt
27 a resolution authorizing the City Administrator to accept the term sheet for Waste Management of
28 Alameda County for the Zero Waste Services franchise contracts, and prepare the rate tables with
-16VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 any City Council directed alternatives selected by City Council for inclusion in the rate tables and

2 bring the Ordinances to City Council for consideration and approval." (Ex. 12 (City Staff Report
3 (May 22, 2014)).) City Staff determined that awarding all three Zero Waste Services contracts to
4 WMAC would be the "best value for rate payer." {Id., Attachment A at 3.) The Staff also
5 determined that making such an award would provide "the lowest rate impact for City residents."
6 {Id. at 6.) Further, the Staff found that the WMAC proposals as a whole "provide[ ] the lowest cost
7 to rate payers of any combination of proposals submitted, and it is the strongest option relative to
8 meeting the City's Zero Waste goal of providing reliable, quality service to Oakland." (Ex. 13
9 (Agenda Report (May 16, 2014) at 2.)
10
58.

On May 29, 2014, the City Council rejected the City Staffs recommendation to

11
award the Zero Waste Services contracts to WMAC and "direct[ed] staff to allow bidders to submit

12
new (best and final) bids to include all components including [East Bay Municipal Utility District],

13
mixed materials, organics, recycling and landfill comparable in scope to the Waste Management

14
proposal." (Ex. 14 (City Council Minutes (May 29, 2014)).) The City Council also directed City

15
Staff to allow bidders "to include additional components including but not limited to cost saving

16
17
18
19

elements, at the bidders' discretion!.]" {Id.) The Council also indicated it would entertain
unsolicited proposals. None of this process was approved by Council resolution, and indeed, the
Council's proposal to abandoned the only authorized procurement process was not even on the
Council Agenda.

20
59.

21

City Staff resumed negotiations with WMAC and CWS on May 30, 2014.

22
E.

The City Council Illegally Disclosed WMAC's Confidential And Proprietary Bid

23
Information To CWS, Providing WMAC's Competitor Its Best And Final Offer And

24
The Confidential And Proprietary Trade Information Used To Arrive At The Same

25
While Negotiations Were Still On-Going.

26
27

60.

On information and belief, CWS requested during its meeting with City Staff on May

28 30, 2014, all documents provided by WMAC as part of WMAC's confidential, on-going
-17VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 negotiations with the City, including: (a) a redline comparison of WMAC's proposed Franchise
2 Agreement to the draft Franchise Agreement included with the RFP; (b) WMAC's Maximum
3 Service Rate Proposal Forms and rate tables for City's Staffs Option 1 (the recommendation to the
4 City Council that the Council approve contracts with WMAC for all three Zero Waste contracts);
5 and (c) WMAC's proposed terms and conditions of the draft contracts along with WMAC's best and
6 final offer to the City (collectively referred to as the "Bid Documents").
7
61.

The Bid Documents incorporated confidential and proprietary pricing and other

8
information that contain trade secrets and have been developed by WMAC through its expertise and
9
extensive experience in bidding for and servicing waste management contracts. The Bid Documents
10

also included WMAC's bid price for the contract services.

11
12

62.

The terms and conditions of the RFP provide that the City will make reasonable

13 efforts to maintain the confidentiality of a proposer's financial information and that the City will
14 comply with the provisions of the California Public Records Act ("CPRA"), which provides that
15 confidential and/or proprietary information will not be made public during on-going public contract

16 negotiations involving multiple bidders.

17
18

19
20
21
22
23
24
25
26

63.

The Zero Waste RFP Protocols provide that negotiations with a top-ranked proposer,

upon authorization from the City Council, are to be "exclusive." (Ex. 4 at 7.) The Protocols further
provide that City Staff, consultants, and outside evaluators involved with evaluating Zero Waste
proposals must "not share any information about responses received or the evaluation process until
the City Administrator publishes the recommendations of the top ranked proposals." {Id. at 3.)
"Confidential Information" under the RFP Protocols includes trade secrets, financial data, contractnegotiating positions, and any other information relating to the business affairs of a proposer. {Id.,
Attachment 3.) The RFP Protocols prohibit City Staff from disclosing "Confidential Information for
any purpose whatsoever ... unless directed to do so by the City Administrator on advice of the City's
Attorney's Office." {Id.)

27
28

64.

On June 1, 2014, WMAC, through its counsel, notified the City that providing
-18-

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 WMAC's confidential bid documents to CWS while negotiations are still on-going would be in
2 violation of the City's procurement process and could implicate collusion and bid-rigging. (Ex. 15
3 (WMAC Letter (June 1, 2014).) WMAC asserted that the City's conduct in providing such
4 information to a competitor would only serve the purpose of allowing that competitor to benefit from
5 WMAC's work product, negotiation efforts, and obvious superior knowledge of industry practices.
6 {Id.)
7
65.

On June 4, 2014, the City provided an opportunity to CWS to bid for all three Zero

8
Waste Service contracts. "Following City Council's direction of May 29, 2014, the City is providing
9
the opportunity to California Waste Solutions and Waste Management of Alameda County to
10
propose a best and final offer on one (1) or more of the three (3) following Service Groups as
11
published in the City of Oakland Zero Waste Services RFP, which was amended and republished on
12

November 16, 2012." (Ex. 16 (City Letter (June 4, 2014)).) The City required that all eligible
t

13
proposers submit their Best and Final Offers ("BAFO") by noon on Friday, June 13, 2014. {Id.)
14

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15

66.

On June 6, 2014, WMAC formally objected, by letter to the City of Oakland, to the

16 City Council's decision on May 29, 2014, to allow CWS to submit new bids on all three Zero Waste
17 Services contracts and to direct City Staff to conduct further negotiations with WMAC and CWS.
18 (Ex. 17 (WMAC Letter (June 6, 2014).)

19
67.

Despite WMAC's objections to the City disclosing confidential and proprietary

20
pricing and other information contained in its Bid Documents, the City copied such information
21
22
23

from WMAC's Bid Documents, placed the information on City of Oakland documents, and released
those documents to CWS prior to CWS tendering to the City new proposals for the MM&O and RR
Collection Services contracts and a first-time bid for the Disposal Services contract.

24
25

68.

The documents disclosed by the City to CWS contained trade secrets belonging to

26 WMAC. On information and belief, the City disclosed the proposed terms and conditions of the
27 draft contract, which include various exceptions and negotiating points. Those documents
28 embodied WMAC's negotiating strategy on which its pricing was in part based, derived from years
-19VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

of industry experience and expertise.

69.

WMAC's confidential information derives independent economic value from not

being generally known. This information enables WMAC to provide competitively priced services
4
5

and competitive terms in its contracts. Further, pricing and other information in the hands of a
competitor could and was used here to undercut WMAC's prices and negotiated terms.

6
70.

WMAC exercised reasonable efforts to maintain the secrecy of this

8 information. WMAC never disclosed the draft terms and conditions or its pricing for the RFP to the
9 public. WMAC fully expected and assumed the City would hold its information confidential until
10 the procurement process was completed. When it became aware of the City's plan to disclose its
11 trade secrets, WMAC objected strongly and attempted to prevent their release to CWS.
12

71.

-J

CWS knew and had reason to know that WMAC's draft terms and conditions and

13

best and final offer were acquired by improper means. CWS knew or had reason to know that the
Q S
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14

City's disclosure of its information violated applicable law, the confidentiality of the procurement

15
process, and breached the City's duty to WMAC to maintain the secrecy of the information.
16
17

72.

CWS acquired WMAC's trade secret information and used it to undercut WMAC's

73.

The City disclosed WMAC's confidential information to CWS when it knew or had

18 bid.
19
20
reason to know it had a duty to maintain its secrecy or limit its use. The City knew or had reason to
21

know its disclosure would violate the Uniform Trade Secrets Act, the Oakland Municipal Code,
22

other applicable law, and the terms and conditions of the City's procurement process.
23
24

74.

On June 13, 2014, CWS tendered to the City a revised Best and Final Offer for the

25 MM&O and RR Collection Services contracts and a proposal for the Disposal Services contract.
26 (Ex. 18 (CWS Proposal for Disposal Services Contract).) CWS's proposal stated that CWS was in
27 "partnership" with Republic Services for the Disposal Services contract. CWS had not previously
28 disclosed this partnership or subcontractor relationship as is required by the RFP, and Republic
-20VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 Services earlier had deliberately chosen not to submit a proposal in response to the RFP.

2
75.

In choosing not to submit a proposal. Republic Services avoided City Staffs vetting

3
and due diligence process, a detailed evaluation process requiring numerous submittals, the refusal
4
of which would have been grounds for disqualification. By inappropriately "partnering" with CWS,
5
Republic Services attempted to circumvent that rigorous RFP process and "skip to the end," reaping
6
an enormous windfall at the expense of the public.
7
8

76.

Republic Services proposes to partake in the Disposal Services contract by providing

9 CWS use of its transfer station and processing and disposal facilities. WMAC is informed and
10 believes and thereon alleges that Republic Services also plans to support CWS with trucks, carts, and
11 expertise around transition, call center, and billing services. CWS has no infrastructure or

12 experience in this arena. This is a de facto partnership without disclosure by the October 31, 2012
13 deadlineas required under the RFPand could result in Republic Services, a non-bidder,
w

2-

14 performing a large part of the Zero Waste Services contracts. The RFP expressly provided that

LU g

15 "Any and all proposals will be rejected if there is reason to believe that collusion existed among the
16 proposers. Proposals received from participants in such collusion will not be considered for the
17 same work when and if re-advertised." (Ex. 5, 4.17.)
18

77.

The City Council purposefully authorized City Staff to negotiate with WMAC under

19
a process whereby negotiations would be confidential until the City awarded the Zero Waste
20
Services contracts. The City Council then purposefully disclosed WMAC's confidential
21
information and diverted the RFP process in an apparent attempt to award all three Zero Waste
22
23
24
25

Services contracts to CWS. Thus, the City Council's authorization to enter into contract negotiations
with WMAC was a sham in that such negotiations were never intended to result in a contract award
to WMAC but rather to give the City an opportunity to subvert the RFP process and disclose
WMAC's confidential information to CWS so it could underbid WMAC.

26
27

78.

On June 17, 2014, the City, by email, asked WMAC if it was "interested in

28 submitting an additional set of MM&O [Best And Final Offer] rates for disposal at Republic
-21VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 Services' Vasco Road Landfill? If so, could WMAC do so this week[?]" (Ex. 19 (City Email (June
2 17, 2014)).) The Vasco Road Landfill operated by Republic Services is the landfill at which CWS
3 would dispose of the City's waste pursuant to its invalid proposal for the Disposal Services contract.
4

79.

On June 23, 2014, WMAC responded to the City, by letter, stating that it would not

5
and could not provide the City such a set of rates because the City's consideration of a new proposal
6
for Disposal Services, submitted more than 18 months after the proposal deadline and after the City
7
provided CWS with WMAC's bid terms and pricing, was in violation of the RFP rules and
8
9
10

procedures. (Ex. 20 (WMAC Letter (June 23, 2014)).) Moreover, in submitting revised pricing on
other services, WMAC made it clear to the City that it had undermined and abandoned its approved
procurement process beginning with the May 30, 2014 City Council action.

11

12 F.

The City Council Passed A Resolution Awarding All Three Zero Waste Services

13

Contracts To CWS Even Though City Staff Warned That CWS Could Not Provide

14

Such Services By The Time Of Contract Performance And That The City Would Not

15

Meet Its Zero Waste Goals For At Least Five Years.

16
80.

On July 23, 2014, City Councilmcmbers Dan Kalb, Rebecca Kaplan, and Lynnette

17

Gibson McElhaney submitted to the Rules and Legislation Committee a request to schedule an
18
agenda item that would violate the rules and procedures of the RFP process. The agenda item was
19
20
21
22
23
24

25
26
27

for a resolution "directing the City Administrator to negotiate and execute a franchise contract with
Civicorps in accordance with their proposal to collect commercial organic materials (dated June 25,
2014), and regulating maximum service rates and procedures to allow for annual adjustment of
maximum service rates, and return to council an ordinance awarding a franchise contract to
Civicorps for the collection of commercial organic materials to be effective July 1, 2015, for a term
often years." The agenda item also provided for an alternative resolution that required the City
Council "when awarding the franchise agreement to either California Waste Solutions (CWS) or
Waste Management (WM) or any combination of CWS/WM, to provide collection services for
mixed materials & organics (MMO), such franchise agreements shall be awarded contingent upon

28
-22VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 the awardee(s) including Civicorps as a subcontractor to provide services for collection of

2 commercial organic materials; and that if one or the other contractor does not agree to include
3 Civicorps as part of their work, the Council directs the City Administrator to award the entire MMO
4 contract to the Franchisee that agrees to include Civicorps at the same overall rates set forth in the
5 council-approved franchise ordinance(s)." (Ex. 21 (City Council Letter (July 23, 2014).)
6
81.

Civicorps submitted a brochure as its proposal more than 18 months after the

7
submission deadline. This brochure, in addition to be non-compliant and untimely, failed to meet the
8
detailed requirements for a description of services as required under the RFP.
9
10

82.

In its report for the July 30, 2014 City Council Meeting, City Staff stated that there

11 were three possible proposal combinations regarding the Zero Waste contract awards for the City
12 Council to consider: Option 1 - award all three franchise contracts to WMAC; Option 2 - award the
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13 RR Collection Services contract to CWS and award the MM&O Collection Services and the
14 Disposal Services contracts to WMAC; or Option 3 - award all three contracts to CWS. City Staff
15 stated that "Option 1 is the most practicable and prudent option to deliver service on July 1, 2015,
16 would provide the best value for the Oakland ratepayers and the best customer experience, while
17 meeting the City's adopted Zero Waste goal." (Ex. 22 (City Staff Report (July 22, 2014)).) City
18 Staff said that Option 2 was "viable" but would not have "the lowest rate for the Oakland ratepayers

19 of the three Options." {Id.) "Option 3 is not the preferred option." {Id.)
20
83.

Among the critical factors the City Staff used to determine the recipient or recipients

21

of the Zero Waste contracts were: "Collection of garbage on day one of the new franchise contract
22

(July 1, 2015) for the 150,000 Oakland customers is of foremost concern for the City"; "Public
23

health and safety is the City's responsibility according to state law and City ordinance"; and
24

"Reliable garbage service is paramount." {Id. at 5.)

25
26

84.

In recommending Option 1, City Staff found that "award of MM&O franchise

27 contract to WMAC would ensure garbage collection on day one of the new contract, residential
28 recycling, and disposal services. WMAC is the sole proposer with qualified experience in the
-23VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 collection and processing of mixed materials and organics, and disposal of garbage." {Id.) "While
2 Option 1 does not provide the lowest cost, it does provide all services requested in the RFP on day
3 one and the best value to the rate payer. WMAC has an established record of success for collection
4 of garbage and organics in Oakland and other communities in Alameda County. They have
5 extensive experience processing and marketing organic material in Alameda County and California.
6 WMAC is the only proposer with experience in running a full-service call center and providing
7 billing services to garbage customers." {Id. at 6.)
8
85.

In addition, City Staff found that "Option 1 provides a superior approach to achieving

9
the City's Zero Waste goal. On day one of the contract, WMAC will process multi-family mixed
10
materials to divert materials from the landfill and return them to the economic mainstream.
11
WMAC's long-term plan for organics diversion far exceeds diversion proposed by CWS in Option
12
3. Option 1 provides the highest level of diversion and correlating Green-house Gas (GHG)
X "8

13

emissions reduction for the City." {Id. at 7.)

14
15

86.

In rejecting Option 3, City staff found that CWS's proposal "engages a number of

16 entities woven together with varying levels of assurances and agreements. Additionally, required
17 permits from regulatory agencies have not been secured, leaving this option in less than strong
18 standing. With Option 3, mixed material processing would be delayed for five years, until the
19 Gateway Facility is open, seriously impeding the City achievement of its Zero Waste diversion
20 goals." {Id. at 9.)
21
87.
22
23
24
25

City Staff also found that CWS's proposal would require, among other things:

purchase and delivery of all new carts; transfer of single-family organic material from a temporary
transfer station at the East Bay Municipal Utility District ("EBMUD") to the organic processor in
Napa County or Yolo County; delay of Mixed Materials processing by five years until new CWS
facility is in operation; and development of a billing system for 150,000 customers. {Id. at 9.)

26
27

88.

City Staff concluded that "Option 3 presents the lowest rate, however, the risks

28 associated with Option 3 outweigh the monetary benefit that might accrue to the ratepayers. The
-24VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 risks include the critical path to bring together the essential agreements between multiple parties and
2 the necessary permitting to construct and operate a temporary transfer station on day one of the
3 contract." {Id. at 10.) Moreover, CWS in fact did "not" have the lowest rate as its proposal did not
4 include all required Zero Waste services; WMAC's proposal did.
5
89.

On July 30, 2014, the City Council passed three ordinances, and gave them their first

6
reading, awarding all three Zero Waste Services contracts to CWS. (Ex. 23 (Zero Waste Services
7
Ordinances - First Reading).) The City Council approved the second reading August 13, 2014,
8
resulting in final passage of the ordinances. (Ex. 24 (Zero Waste Services Ordinances - Final.) This
9
lawsuit is ripe.
10
11

90.

WMAC is informed and believes and on that basis alleges that CWS was able to

12 submit a nominally lower bid for the MM&O Services Contract than WMAC's in part because CWS
_)

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13 secured a lower disposal rate from Republic Services, which was given WMAC's disposal pricing.
f
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14 Civicorps, in its brochure proposal, and the City Council in its letter to the City Administrator,
15 suggested that Civicorps' rates were lower than WMAC's. These only occurred after CWS and
16 Civicorps were privy to WMAC's Bid Documents before negotiations concluded. CWS's
17 borrowing of supposed savings in disposal rates to lower its bid for collection services violated the
18 RFP. Under the RFP, proposers were required to assume a $50/ton disposal rate when bidding on
19 collection services. This was done to ensure an "apples to apples" comparison and to further ensure
20 that a proposer who owned a landfill would not have an unfair disposal advantage in determining
21 their MM&O rate sheet. CWS, in collusion with the City and Republic Services, breached this
22 requirement.
23
91.

Republic Services knew that CWS planned to intentionally interfere with WMAC's

24
economic relationship with the City, as it revealed in its letter of July 28, 2014 to the City "offer[ingJ
25
support to CWS" in CWS's disruption of that relationship through the Disposal Services contract.
26
(Ex. 25 (Republic Services Letter (July 28, 2014).)
27
28

92.

Republic Services gave substantial assistance or encouragement to CWS in disrupting

-25-

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 WMAC's economic relationship with the City by offering support to CWS. Among other things,
2 Republic Services' support was necessary for CWS to obtain the Disposal Services contract, as the
3 City itself acknowledged in the Zero Waste Ordinance passed on July 30, 2014, that awarded that
4 contract to CWS: "Since Contractor [i.e., CWS] is not the owner and operator of the Disposal
5 Facility, the City Administrator shall ensure that the final Contract contains provisions that make the
6 terms and conditions of the Contract applicable to the owner of the Disposal Facility [i.e., Republic
7 Services].'" (Ex. 21.) The substantial assistance or encouragement that Republic Services thus
8 offered to CWS was a substantial factor in causing harm to WMAC by disrupting WMAC's
9 economic relationship with the City because, among other things, it was necessary for CWS to
10 obtain the Disposal Services contract.

11
93.

WMAC played by the rules. In justifiable reliance on the RFP process, WMAC:

12
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2 ^
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submitted three (3) proposals at a cost of over $1,000,000; secured permits and entitlements;
13
constructed the Multi-Family line at Davis Street; secured performance and bid bonds; secured
14
consultants and lawyers; met with the Zero Waste Committee on more than 40 occasions and spent

Q c

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15
16
17
18

thousands of hours negotiating the terms of the RFP and the service contracts; and provided
confidential and proprietary information to the City Council. For its part, the City Council, in just
two short months (May to July 2014), unilaterally and unlawfully derailed and abandoned an 8-year
process to get the City's Zero Waste System underway.

19
20

FIRST CAUSE OF ACTION

21

(Writ of Mandate Pursuant to Cal. Civ. Proc. Code 1085 - Violation of the Zero Waste

22

Services RFP - Against the City)

23
94.

WMAC realleges and incorporates paragraphs 1 through 93 as though such

24
paragraphs are fully set forth here.
25
26

95.

Pursuant to Code of Civil Procedure section 1085(a), a traditional writ of mandate is

27 used to invoke judicial review of legislative and ministerial actions by government agencies. When
28 those agencies have abused their discretion through their actions, the courts can compel them to act
-26VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 in a manner consistent with applicable laws.

2

96.

Respondents have a clear ministerial duty to abide by the Zero Waste Services RFP,

3
as promulgated by City Council resolutions establishing such rules and procedures. Respondents
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also have a duty and obligation to follow the established regulations pertaining to the award or and
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entry into contracts, otherwise those contracts are invalid.
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97.

WMAC has a beneficial interest in the City's performance of its duty because

8 WMAC is a qualified proposer for all three Zero Waste Services contracts, it has satisfied all RFP
9 requirements, and it has spent over $1,000,000 and nearly two years of effort in responding to the
10 Zero Waste Services RFP. In addition, because the City has illegally disclosed to CWS WMAC's
11 confidential and proprietary information and then permitted CWS to revise its BAFO on the MM&O
12 and RR Collection Services contracts and to submit a first-time bid on the Disposal Services contract
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13 18 months after the proposal deadline, the City has deprived the public and proposers of a fair
14 bidding and procurement process for waste services, which has adverse consequences for consumer

15 welfare by depriving its residents of the best service at the best value.
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98.

Respondents have the ability to perform their ministerial duty to abide by the RFP

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rules and procedures for the Zero Waste Services bidding and procurement.
18
19

99.

Respondents have failed to perform their ministerial duty and committed a prejudicial

20 abuse of discretion under Code of Civil Procedure section 1085 by not proceeding in a manner
21 required by law. The City committed such failure and abuse of discretion by, among other things,
22 allowing CWS to submit a proposal on the Disposal Services contract even though CWS did not
23 satisfy the RFP's mandatory requirements on pre-proposal submissions, notification of proposed
24 partnerships, and timely submission of conforming proposals.
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100.

WMAC has no other plain, speedy, or adequate remedy in the ordinary course of the

26
law other than the issuance by this Court of a writ of mandamus.
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101.

Accordingly, the Court should issue a writ of mandate commanding Respondents to:
-27-

VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 (1) repeal the three Zero Waste Services Ordinances passed by the City Council on July 30, 2014,

2 awarding all three Zero Waste Services contracts to CWS; (2) declare CWS's proposals for the
3 MM&O Collection Services contract, the Residential Recycling Collection Services contract, and
4 the Disposal Services contract to be non-conforming and therefore not qualified under the Zero
5 Waste Services RFP; or (3) show cause why a writ of mandate should not issue.
6
SECOND CAUSE OF ACTION
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(Code of Civil Procedure 1060 - Declaratory Relief- Against the City)
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9

102.

WMAC realleges and incorporates paragraphs 1 through 101 as though such

10 paragraphs were fully set forth here.

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103.

WMAC is beneficially interested in a declaration of law by virtue of the facts set

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forth above and below.

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104.

An actual and present controversy has arisen between WMAC and Defendants

15 regarding the interpretation and application of the mandatory requirements of the Zero Waste
16 Services RFP, including but not limited to those provisions regarding: (a) submission of disposal
17 facility information by a date certain (RFP SG3, Part 3); (b) submission of information regarding a

18 partnership by a date certain if the proposer intended to submit a proposal with a partner {id.); and
19 (c) submission of proposals by a date certain {id., Part 4). In addition, an actual and present
20 controversy has arisen between WMAC and Defendants regarding: (a) whether the City was
21 permitted to disclose to CWS WMAC's confidential and proprietary pricing and other information in
22 its Bid Documents while negotiations were still on-going; (b) whether CWS's subsequent proposals
23 were compliant with the RFP process; and (c) whether the City could consider CWS's untimely
24 proposal for the Disposal Services contract.
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105.

A declaration of law is necessary in this case to avoid numerous and repetitious

lawsuits, each challenging the applicability of the mandatory provisions of the Zero Waste Services
RFP regarding the bidding and procurement process.

28
-28VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

106.

WMAC has pursued, and exhausted, all available and/or required administrative

2 remedies, without obtaining any relief.

3
107.

WMAC requests that the Court declare the law as to the applicability of the

4
mandatory provisions on submission deadlines in Parts 3 and 4 of the Zero Waste Services RFP to
5
the bidding and procurement of the three Zero Waste Services contracts. Specifically, WMAC seeks
6
the Court to declare: (1) that the mandatory provisions of the Zero Waste Services RFP on
7
submission of disposal facility information, submission of partnership information, and submission
8
of Zero Waste Services proposals by a date certain prohibited the City from considering untimely
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and non-conforming proposals by CWS; and (2) that the Zero Waste Services protocols and
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procedures prohibited the City from disclosing to CWS or any other party WMAC's confidential
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information in its confidential bid documents while negotiations were still on-going and rendered
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invalid CWS's subsequent bid which relied on that confidential information.

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t. E

PRAYER FOR RELIEF

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WMAC respectfully requests that this Court grant the following relief:
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1.

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Issue a writ of mandate commanding Respondents: (1) repeal the three Zero Waste

18 Services Ordinances, awarding all three Zero Waste Services contracts to CWS; (2) declare CWS's
19 proposals for the MM&O Collection Services contract, the Residential Recycling Collection
20 Services contract, and the Disposal Services contract to be non-conforming and therefore not
21 qualified under the Zero Waste Services RFP; or (3) show cause why a writ of mandate should not
22 issue.
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2.

Issue an order declaring (1) that the mandatory provisions of the Zero Waste Services

RFP on submission of disposal facility information, submission of partnership information, and

submission of Zero Waste Services proposals by a date certain prohibited the City from considering
untimely and non-conforming proposals by CWS; and (2) that the Zero Waste Services protocols
and procedures prohibited the City from disclosing to CWS or any other party WMAC's confidential

28
-29VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

1 and proprietary pricing and other information in its confidential bid documents while negotiations

2 were still on-going and rendered invalid CWS's subsequent bid which relied on that information in
3 those documents.
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3.

Grant WMAC damages according to proof;

4.

Grant WMAC attorney's fees and costs; and

5.

Grant WMAC such other and further relief as may be just and proper.

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DATED: August 7^2014

REED SMITH LLP

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John Lynn SriTith

Attorneys for Plaintiff and Petitioner
Waste Management of Alameda County, Inc., a
California Corporation

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QUINN EMANUEL URQUHART & SULLIVAN, LLP

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In M. Potter
Attorneys for Plaintiff and Petitioner
Waste Management of Alameda County, Inc., a
California Corporation

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VERIFIED PETITION FOR WRIT OF MANDATE OR OTHER EXTRAORDINARY RELIEF AND COMPLAINT
FOR DECLARATORY RELIEF

VERIFICATION

I, Barry Skolnick, the undersigned, say:

I am the Area Vice President of Waste Management and I am authorized to make this
declaration on behalf of Plaintiff Petitioner Waste Management of Alameda County, Inc. I have
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read the foregoing Verified Petition for Writ of Mandate or Other Extraordinary Relief and
Complaint for Declaratory and Other Relief and I am familiar with its contents. I am informed and
believe that the matters stated therein are true and correct and on that basis verify that the matters
stated therein are true and correct. I declare under penalty of perjury under the laws of the State of
California that the above is true and correct and that this verification is executed on August |, 2014,
in Oakland, California.

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Barry Skolnick

cr 1

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SIVERIFICATION

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