The Santa Clara Valley Transportation Authority swiftly responded to the Metro Silicon Valley/San Jose Inside investigative report, published Feb. 12, which shed light on loose procurement procedures for one of the Diridon Station expansion’s key design contracts.
Alleging “several erroneous insinuations and unsubstantiated accusations” by “an investigative reporting outlet” that VTA declined to name, the agency asserted, without providing proof or conducting an investigation, that “there were no illegal activities or circumvented processes that would put the Arcadis U.S., Inc. contract at risk.”
VTA has not contacted Metro/SJI to request correction of any published material it believes to be factually incorrect or to provide information to dispute it.
You know, reading this actually makes me more worried y’all did something wrong.
— ellen teapot ??️⚧️ (@asmallteapot) February 14, 2020
Reporters spent several months requesting documents from VTA about the run-up to the bidding process, but the transit agency refused to provide copies of certain communications and heavily redacted portions of the winning design proposal.
Records that Metro/SJI successfully obtained suggest that the transit agency broke laws and violated its own conflict-of-interest rules in trying to secure services from world-class architects Benthem Crouwel Architects and Arcadis Design and Consultancy, the winning bidders of a two-year, $6.4 million contract to map out the station’s footprint, connections and rider circulation patterns. Legal experts say the apparent contract breach could expose VTA to legal liability and force it to sever its relationship with the Netherlands-based design firms.
Top agency media spokeswoman Brandi Childress said “VTA complied with all applicable laws, regulations and internal policies in its issuance of a Request for Proposals (RFP)” and that “no firms were deemed ineligible for having a conflict of interest.”
Childress was quoted in the investigative report defending the pre-contract award communications between the agency and the winning bidder, pointing out that “there is no restriction on contact with vendors or consultants who have an existing contract about the work they are performing for the agency.”
VTA’s own RFP language however seems to indicate otherwise. It restricts vendors from scoping future jobs for themselves, warning contractors that they are “precluded from submitting proposals or bids as a prime contractor or subcontractor for any future procurement with VTA if the specifications, requirements, scope of services, and/or RFPs for such work were developed or influenced by the work performed under the Contract.”
The media release stated: “There is no evidence that Arcadis was given access to non-public information that was material to the RFP nor were they involved in crafting a scope of work for future contracts.”
But during the records-gathering process, VTA withheld or heavily redacted records that could have shone more light on the agency’s relationship with the contractors.
When Metro/SJI asked for emails from former VTA contracts manager Trish Kane, the agency denied the request, calling it “overly burdensome” because it would take 40 hours to retrieve the correspondence from “a backup tape from an offsite facility.”
“Because Ms. Kane was no longer an employee when VTA was transitioning email platforms her emails were archived offsite and are not accessible by our onsite servers,” a VTA official explained in an email denying the California Public Records Act request.
Among records that the agency agreed to hand over to Metro/SJI were proposals to the design bid along with judging documents in which the VTA redacted potentially key information it claimed was proprietary. The proposal from Arcadis and Benthem Crouwel, in particular, was significantly more censored than the other two bids. In judging forms showing how many points each proposal received, VTA even redacted names of evaluators, arguing that the public interest would be better served by withholding certain details about the bidding process.
The documents reviewed by this news outlet seem to undermine the claim that Arcadis and Benthem Crouwel competed on a level playing field with other bidders.
Months before VTA issued an RFP on the Diridon redesign, Arcadis and Benthem Crouwel worked as consultants for the agency. Under that consultancy agreement, Arcadis and Benthem Crouwel helped VTA formulate the main objectives for the station redesign, defined roles for the four participating public agencies and, according to one expert interviewed, provided materials so that local officials could “understand the complexity and breadth” of the project.
After finishing all that consulting work on the Diridon project, Arcadis then submitted a bid on the station’s redesign. The firm’s proposal cited similar language it drafted as part of deliverables under the initial consulting agreement.
Reporting by Metro/SJI also illuminated the extent to which Google—a principal beneficiary of the transit improvements after buying $450 million in land around Diridon Station since 2016—played a role in planning the massive public works project.
Childress said VTA’s behind-the-scenes work with Google was appropriate and above-board, given the company’s stake in the project. The transit agency confirms that Google Inc. participated in the station design conceptual process. “Google was consulted as a stakeholder …VTA does its due diligence as a public agency by consulting the surrounding landowners and businesses that could be affected to see whether there are issues that VTA has not yet considered,” VTA’s rebuttal states. “Does the current contract require the consultant to collaborate with Google? Yes.”
“VTA has no plans to halt the design work at Diridon, sever ties with Arcadis, or rebid the current contract,” the VTA spokeswoman added.
The agency’s statement doesn’t completely align with what San Jose Mayor Sam Liccardo, a VTA board member, said after learning of the contracting oversights. Though he declined to offer a legal opinion on the matter, he said that “everyone would agree that this is not the way the agency should be engaging with consultants” and that the contracts should have included “clear language” to set “clear walls and boundaries.”
The mayor said the VTA may need to strengthen its procurement policies to prevent these kinds of missteps going forward, and that he’d like to see the project go back to bid when the contract comes up for renewal at the end of this year.
“VTA’s rebuttal downplays very serious concerns about favoritism and conflicts of interest,” Metro/SJI news editor Jennifer Wadsworth said. “We stand behind our reporting. And we urge VTA to release the email correspondence it previously refused to disclose and the un-redacted contracts we requested in the first place so that the public can be assured of the integrity of the bidding process.”