Tuesday, June 07, 2016

No-bid contract pulled from today's MTA agenda

Ms. Miles was informed this morning that the Walsh contract has been removed from today's MTA agenda.

Mary Miles (SB #230395)
Attorney at Law
San Francisco, CA 94102
Coalition for Adequate Review

Edward Reiskin, Director of Transportation
Roberta Boomer, Board Secretary, and
Members of the San Francisco Municipal Transportation Agency Board
1 S. Van Ness Ave., 7th Floor
San Francisco, CA  94103

DATE:  June 6, 2016


This is Public Comment on Item 11 on the MTA Board's June 7, 2016 meeting agenda. Please distribute this Comment to all MTA Board Members and place it in all applicable files on the Project.

Agenda Item 11 is described as, "Main environmental findings and authorizing the Director to execute Contact Amendment #1 to Contract No. 1289...with Walsh Construction Company for construction services, increasing the contract amount by $203,092,342, for a total contract amount of $203,892,342, and for an overall contract term not to exceed five years. (Explanatory documents include a staff report, resolution and amendment.)" No "explanatory documents" were included with your posted Agenda.

The Board must continue this Item, because the Agenda does not include essential information for informed public comment, since no "explanatory documents" have been posted online or elsewhere in advance of this meeting. The Agenda description does not meet basic requirements of the Brown Act and the Sunshine Ordinance to give the public sufficient notice, information, and the opportunity to be heard. 

The proposed contract, negotiated in secrecy and without public disclosure and input, and without including it in any packet, actually proposes to burden taxpayers with a "Guaranteed Maximum Price" ("GMP") of $312,698,230 for construction of the Van Ness Bus Rapid Transit ("VNBRT") Project. (Walsh GMP, 5/10/16)

The MTA's "staff report" on the previous preliminary contract falsely claimed that proposed actions were "within the scope of the Van Ness BRT Project Final EIS/EIR." (7/7/15 MTA Board Agenda packet) The proposed actions are not within the scope of that document, because the Project proposes actions that will have more significant impacts of greater severity, and because the Project proponents rejected the curbside alternative to the "LPA" center BRT, even though the curbside design would not cause the same impacts. (14 Cal. Code Regs. [CEQA "Guidelines"] §15162) Further, no effective mitigation has been identified for the Project's significant impacts. These facts require a subsequent environmental impact report ("SEIR") to comply with the California Environmental Quality Act ("CEQA," Pub. Res. Code §§21000 et seq.)

MTA asks this Board's approval of a construction contract with Walsh Construction Company ("Walsh") with a GMP that is twice the previous estimated construction costs without competitive bidding. MTA's 2015 estimate for construction was $159 million. (July 7, 2015 MTA Board Staff Report, p.5) The July 7, 2015 Staff Report states, "When the design has been completed, the parties will negotiate a GMP for Phase 2 of the contract (construction services). If the negotiations are successful, the Agency will bring a contract modification to the SFMTA Board for approval. If negotiations are not successful, the Agency will bid out a contract for construction of the Project." (Id., p. 5)  

The doubled GMP amount was negotiated without any public disclosure or input, does not include the $800,000 already given to Walsh, or any costs other than Walsh's construction bill. Even if Walsh's GMP could not exceed the proposed "total contract amount of $203,892,342," that amount far exceeds original estimates of the Project's total construction costs. Since the "modified" contract is not available, it is impossible to tell whether the deal is based on the GMP or the alleged "total contract amount." In any event, the discrepancy between the amounts and the vast increase in the construction amount calls for open bidding on the proposed contract.

With the fantastic increase in Walsh's estimated GMP for its construction bill, this Board should require open competitive bidding on the construction phase of the VNBRT Project. The public paying that bill has been deprived of any voice in this proceeding. There is no specific accounting for how this money will be allocated from revenues already stretched to the limit for this project. For just one example, the Walsh preliminary contract proposes to get $30 million from FTA section 5309 funding. But that statute requires competitive bidding, contrary to the proposed contract before you that MTA negotiated in secret without open bidding. (49 U.S.C. §5325(a))

Given the doubling of Walsh's estimate in less than one year, this Board has no reason to believe that the contractor's bill will not again rise exponentially during the estimated 5-year construction period. 

As already documented in previous public comment, the Project proposes to reduce traffic capacity, remove both the median and sidewalk trees, demolish the 100-year-old historic street lamps, and cause permanent traffic congestion on Van Ness Avenue/Highway 101, and on every street in the Project area. Why should taxpayers tolerate a contract of this magnitude without public disclosure and competitive bidding, particularly on a controversial and environmentally destructive project such as the Van Ness BRT?

To comply with your duty to conduct open and public meetings, this Board must continue this Item to a date and time when the proposed contract and other information are publicly available at least 72 hours before the Board meeting.  

After adequately re-noticing and continuing this proposed action, the Board should reject the proposed Walsh contract, because it requires exorbitant, unpredictable expenses, and because construction on a Project this size should be subject to competitive bidding to protect the public interest. Moreover, an SEIR is required on this Project to comply with CEQA. 

Mary Miles

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