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It was simple. Rosales cited the city charter -- the supreme law of municipal affairs -- as giving the Airports Commission absolute authority to decide if a bid met all contractual requirements, including whether the certified MWBs were in fact bona fide for purposes of any particular project at hand. The charter states that the commission: "shall have charge of the construction, management, supervision, maintenance, extension, operation, use and control of all [airport] property, as well as the real, personal and financial assets."
Which, in Rosales' view, means the commission is authorized to award contracts to whom it pleases for work it pleases, a power limited only in one regard: The S.F. Administrative Code requires awards to the "lowest, reliable, responsible and responsive bidder." And that, technically, was the question before the commission Dec. 23. As for the authority of the HRC director, her conclusions about Mitsubishi's bid weren't binding, Rosales said. The HRC certifies companies as local MWBs, but it was the Airports Commission's call as to whether the bidder used certified MWBs appropriately.
The commission voted 3-2 in favor of Mitsubishi. And, although Rosales knew she would be back in court defending it, she didn't expect trouble. She had defended the city MWB ordinance on a half-dozen occasions in federal court, and had a perfect record.
But this was a different kettle of fish. It was not a constitutional attack on the legality of the ordinance. This was about what happens in S.F. when the rubber meets the rails.
Come Jan. 30, it was left to Judge Cahill to make sense of the mess. ADtranz had sued, challenging the city attorney's opinion to the Airport Commission -- that it was free to ignore the conclusions of the HRCdirector.
HRC Director Marivic Bamba was the court's most conspicuous figure by virtue of her absence. Cahill not only wanted her absence explained, but he went out of his way to praise Bamba's willingness to go the extra mile on scrutinizing subcontractors: "She's actually choosing to go out and see." The clear implication of the exchange that would follow was that Bamba was being kept out of sight by the City Attorney's Office, which considers itself the arbiter in contracting works in S.F.
"I kind of wonder who the client is here?" Cahill asked Rosales. Rosales assured the judge that she represented both the airport and the HRC, indeed the city as a whole, and that no conflict existed. (To her right sat another deputy city attorney, a private lawyer specialist in contract law hired by the airport, and Jonathan Bass, of the Coblentz firm, the counsel for Mitsubishi. To her left: ADtranz's team.)
"You represent people who have two different interests, and I'm really having trouble with that," Cahill bristled.
Cahill asked Rosales what she had told the HRC director about her conclusion that Mitsubishi had failed to meet the affirmative action goals. "You advised her she is wrong?"
Responded Rosales, "Yes."
"What if she's right?" the judge said.
Judge Cahill had not answered that question by press time. But in one regard the verdict was clearly in: Though statistics show great strides in affirmative action in municipal contracts, the light-rail clash reveals that those numbers don't tell the whole story. Fortunately for S.F., the current MWB ordinance expires June 30. Between now and then, S.F. has an opportunity to repair the bureaucratic rifts and seal those cracks exposed by Terry Sanders. But making the system work won't be easy.
First, more resources are needed. When Bamba took over, the HRC directory that lists "certified" MWBs was an inch or two thick. Discovering the suspect companies, such as B & F Concrete and Metalset, would take legwork. This, at a time when the Board of Supervisors has heaped substantially more responsibility on the agency, charging it with implementing the controversial new ordinance that requires city contractors to provide the same benefits to registered domestic partners that they do for married couples.
As is the case in Richmond, where Bamba worked before joining the HRC, S.F. could make a policy of offering incentives to contractors to racially diversify their teams of subcontractors. That is achieved by giving bidders added credit for meeting race-specific hiring goals above and beyond MWB participation thresholds.
But perhaps the biggest lesson S.F. needs is that corruption and sloth thrive in a vacuum. That it is time to clearly designate the HRC as the legal arbiter of affirmative action compliance in big municipal contracts.The city should never be in the position that it was before Judge Cahill. As he concluded, "There's no rules here basically."
It's about time to make some.
