Public Contracts (Office Of The City Manager)

Dan Rubins filed this request with the Office Of The City Manager of Sunnyvale, CA.

It is a clone of this request.

Est. Completion None
Status
Fix Required

Communications

From: Dan Rubins

To Whom It May Concern:

I. Background Information

Contract administration is frequently a source of concerning behavior in the public sector. For example:
- In the aftermath of Hurricane Maria, a company with only two employees (Whitefish Energy) was hired hired by PREPA, Puerto Rico's public utility company, to restore power to the island at a cost of $300M. The contract had audit-proofing clauses and left little recourse for PREPA due to nonperformance. After 8 months, Puerto Rico did not have power fully restored and now Congressional and FBI investigations are pending.
- During an internal audit of the City of San Diego's contracting practices, the contract with office products supplier Staples was found to exceed the City Council's approved $2M annual threshold by a full $1M. Auditors found found insufficient financial controls and produced a further 60 pages of recommendations.
- The US Defense Contract Audit Agency (DCAA) found sustained exceptions for incurred costs audits 28.6% of the time in its 2017 Report to Congress.
- From 2010 to 2013, a Maryland Transit Authority employee allegedly used poor contracting oversight to siphon $6.3M from the state coffers.
- The City of Vallejo, CA was recently the victim of an alleged contracting kickback scheme run by the city's landscape maintenance manager, only uncovered in an FBI investigation. The kickback scheme occurred only a few years after the city was in Chapter 9 bankruptcy because of ballooning contractual obligations.
- In recent years, officials in the southern California cities of Bell, Irwindale, La Puente, Monterey Park, Pico Rivera, Temple City, and Vernon have been brought up on various public corruption charges.

While the vast majority of public contracting is done with integrity, bad actors and a lack of public knowledge have a disproportionate effect on the fiscal wellbeing and public trust of every level of government.

II. Requested Records

Pursuant to the { law }, I hereby request the following records:

1. Any and all executed contracts, memorandums of understanding (MOUs), and other equivalent agreements that are currently active, or were active within the last two years, other than standard employee agreements. Please provide a copy of the executed document as well as any addenda, amendments, attachments, exhibits, materials, and schedules.

2. Any and all contract template documents, for example, employee agreements, vendor agreements, master services agreements, nondisclosure agreements, or interagency cooperation contracts.

3. General policies and procedures for contract administration, including training materials and records used to instruct members of your agency in contract administration.

4. Any available process narratives, audit reports, or findings regarding contract administration covering the last two years.

I am happy to discuss any issues or suggestions to make fulfillment more manageable for your office.

III. Fees

If there are any fees for searching or copying these records, please inform me in advance of fulfilling the request.

I would also like to request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public's understanding of how governments manage public money and the obligations to which they are entrusted.

Neither I, nor my company (Legal Robot), has any commercial interest in obtaining the requested information. Rather, we intend to use software to analyze and disseminate the requested information free of charge so that the public may identify patterns of bad behavior that, when eliminated, will benefit governments and the public alike.

We plan to enrich and cross-link the information we receive from multiple jurisdictions, and provide an exploratory interface for the public on the internet, for free. Because we consider this work to be Data Journalism, and we further expect to provide our analysis to other media organizations for additional print and online publication, I ask to be categorized as a representative of the news media. Upon request, I am happy to provide our analysis and any articles we write based on our analysis in advance of publication, though I cannot speak for other media outlets.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Dan Rubins

From: Office Of The City Manager

Greetings Dan Rubins,

This is to acknowledge receipt of your request for copies of public records. I would like to speak with you directly to assist you with more clearly identifying the records you have listed so that we can understand the scope of this request. As I understand the request, it appears to be a very extensive request and could be extremely time-consuming, involving a significant workload and cost. We will only be able to dedicate a reasonable amount of staff time per day or per week to this type of request until the request has been completed.

Once we are able to understand the scope of your request, we will provide you with an estimate of the cost of providing copies. Work will commence when we have received payment. Should the cost of copying exceed the initial deposit, we will require additional payment in order to continue making copies.

As an alternative, if you seek all contracts that have gone to Council over the past two years, you can perform your own search on the City website, through the Legistar/InSight portal at: https://sunnyvaleca.legistar.com/Calendar.aspx

Please contact me by telephone at your earliest convenience.

KATHLEEN FRANCO SIMMONS, MMC
City Clerk
Office of the City Manager
City of Sunnyvale
Phone: 408-730-7474

From: Office Of The City Manager

Dear Mr. Rubins,

This is in response to your email on July 19, 2018, asking for copies of all executed contracts, MOUs, and other agreements that are currently active, or were active within the last two years, including addenda, amendments, attachments, exhibits, materials, and schedules. You have also requested template documents, policies, training materials, audits and other information related to contract administration.

By our estimate, your request encompasses more than two thousand contracts, purchase orders, and other agreements. This includes 542 agreements on the City Clerk's log since 2016, which are estimated to contain approximately 22,600 pages. In addition, there are 1,500+ purchase orders that are currently active or were active in the past two years. Each purchase order may include multiple pages. This estimates does not include other documentation related to particular projects or contracts such as bid documents, RFPs, and proposals. It also does not include various non-fiscal agreements and MOUs that are administered by individual departments. Templates, policies, training materials, audits and other information related to contract administration will add hundreds of additional pages to your request.

The City is willing to produce all public records responsive to your request, but before we dedicate significant staff time and resources to this project, we will require a deposit to cover the substantial cost of copying or scanning the documents. For example, if you wish us to start with just the 542 contracts in the City Clerk's records, we would require a deposit of $2,260 to cover the estimated cost ($0.10 per page). We will work on the project until the deposit is exhausted and then provide you with an estimate of the remaining work. We are not able to waive these charges.

In addition, we do not have sufficient staff resources to have an employee work full time on a Public Records Act request of this scope. Once we receive a deposit for the copies, we will assign staff for a reasonable amount of time per week until the work is completed.

As an alternative, you are welcome to come to City Hall and we will make every effort to assist you (at no charge) in reviewing documents on site and selecting documents you wish to have copied (at $0.10 per page). You can also go to the City's website https://sunnyvaleca.legistar.com/ to locate and review any contracts that went to the City Council.

We would be happy to work with your to help narrow or prioritize your request. I attempted to contact you to discuss your request, but did not hear back from you.

To the extent that your request encompasses records that are not public records under the Public Records Act, we will not produce such records. This would include any attorney-client communications, as well as drafts, notes, and memoranda not kept in the ordinary course of business, and any records where the need for confidentiality outweighs the public interest in the disclosure. (Gov. Code Sections 6254, 6255).

Please respond at your earliest convenience to advise us regarding how you would like to proceed.

KATHLEEN FRANCO SIMMONS, MMC
City Clerk
Office of the City Manager
City of Sunnyvale
Phone: 408-730-7474

From: Dan Rubins

Thanks for your quick response and my apologies for the delay! I understand the first part of my request is relatively large, so hopefully my comments here limit the scope of responsive documents.

1. I am looking at the last couple years of legal language, primarily in procurement documents, so plans, drawings, price lists or other attachments without legal terms are not necessary, if that helps. We can easily exclude agreements that use standard templates, if I can get a blank template (hence, request part 2). However, with the information provided in the city council agendas and on sunnyvaleca.legistar.com, we may have sufficient information for to mark this part of the request as done.

2. With templates, I am looking for documents like standard employee agreements instead of requesting a high volume of repetitive documents. Feel free to limit part 2 to documents that were actually used in the last 12 months.

3. Please feel free to exclude presentations, transcripts, and any audio or video recordings. Here, I am looking for the written policies, procedures, and instructions that are used in Contract Administration.

4. Documents like process narratives, audit reports, and findings are important for this work, but presumably these documents are a small portion of the request, if any exist.

Finally, please feel free to email or call me at (415) 894-0240 if you have questions or need any clarification.

Thanks,
Dan Rubins

From: Office Of The City Manager

Dear Mr. Rubins,

I am responding on behalf of the City Clerk. We are in the process of gathering the contract templates and procedures that you have requested and will let you know when they are ready; probably early next week.

I'm not clear from your email if you are still requesting copies of agreements or if you want to check the contracts available on City's website after you receive the templates. Because even standard agreements may have some changes as a result of negotiation, it would be difficult to sort out only those agreements that differ from the templates. Also, all attachments to a contract are part of the contract and have legal significance. For example, contract attachments may include a scope of work, insurance requirements, legal property description, or other terms of the agreement.

Even if it would be possible to determine that certain attachments don't contain "legal terms", we are still talking about a very large amount of paper and we would still need to receive a deposit to cover the cost of copies before we can assign an employee to this task. As the City Clerk mentioned, we would be happy to assist you in person at City Hall so that you can review our contracts and select what copies you want.

I am not exactly sure what you mean by "process narratives, audit reports, and findings". However, I am looking into whether we have any public records that appear to be responsive to this request with regard to contract administration.

Very truly yours,

Rebecca Moon | Sr. Asst. City Attorney
rmoon@sunnyvale.ca.gov<mailto:rmoon@sunnyvale.ca.gov>
408-730-2705 (direct)
408-730-7464 (main)

From: Office Of The City Manager

Dear Mr. Rubin,

I have uploaded our contract templates and policies to this link: https://cityofsunnyvale-my.sharepoint.com/:f:/g/personal/rmoon_sunnyvale_ca_gov/Esr72N65ILtNkHurPD5qXwUBFFuavsruiOPoC_UsIfWlVg?e=mKUvDw

Please note that these templates are used as a guide, but individual contracts are subject to negotiation.

With regard to your request for "process narratives, audit reports, and findings", we have not located any public records responsive to your request with regard to contract administration.

After you review the templates and the contracts available on the City website, https://sunnyvaleca.legistar.com/Calendar.aspx , please advise whether you would like us to proceed with making copies of city contracts. As noted, we will need a deposit to cover the cost of copies before we get started.

Rebecca Moon | Sr. Asst. City Attorney
rmoon@sunnyvale.ca.gov<mailto:rmoon@sunnyvale.ca.gov>
408-730-2705 (direct)
408-730-7464 (main)

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