San Diego Service Authority for Freeway Emergencies v. Superior Court

San Diego Service Authority for Freeway Emergencies (San Diego SAFE) and Comarco Inc. (Comarco) seek a writ of *1468 mandate and/or prohibition after Cubic Inc. (Cubic) obtained a preliminary injunction and writ of mandate restraining implementation of a contract between San Diego SAFE and Comarco and requiring San Diego SAFE to engage in competitive bidding. At the direction of the Supreme Court we issued an alternative writ. We discharge the alternative writ and grant the petition.

Factual and Procedural Background

Section 2550 of the Streets and Highway Code 1 provides that a county and certain cities may by resolution establish a local Service Authority for Freeway Emergencies (service authority or SAFE). Pursuant to section 2550, San Diego County and the required cities established San Diego SAFE to implement an emergency call box system on San Diego County freeways. San Diego SAFE solicited bids for an emergency call box system (the project) and subsequently contracted with Comarco, purportedly the second lowest bidder. The project is to be financed by a lease/purchase agreement requiring payments from revenues generated by a special registration fee assessed,…

I concur in the result, parting company with my colleagues’ conclusion San Diego Service Authority for Freeway Emergencies (SAFE), as a matter of law, is not required to award this contract to the low bidder, whoever that may be. That conclusion is not necessary to disposition of this writ proceeding. Simply stated, the proposed award of the contract to Comarco is excepted from any requirement, expressed in statutes or implied by law, that the contract be awarded the lowest bidder.

“As a general rule, competitive bidding for public entities is a mandatory requirement as provided by statute, charter or ordinance [citation]. However, there are certain well recognized exceptions to said rule. One exception is where the nature of the subject of the contract is such that competitive proposals would be unavailing or would not produce an advantage, and the advertisement for competitive bid would thus be undesirable, impractical, or impossible. [Citations.]

“The rationale for the adoption of the above exception is found in the purposes of the provisions requiring competitive bidding in letting public contracts. Those purposes are to guard against favoritism, improvidence, extravagance,…

Luce, Forward, Hamilton & Scripps, Robert G. Steiner, Gregory D. Roper and Dana J. Dunwoody for Real Party in Interest.

OPINION

WIENER, Acting P.J.

San Diego Service Authority for Freeway Emergencies (San Diego SAFE) and Comarco Inc. (Comarco) seek a writ of mandate and/or prohibition after Cubic Inc. (Cubic) obtained a preliminary injunction and writ of mandate restraining implementation of a contract between San Diego SAFE and Comarco and requiring San Diego SAFE to engage in competitive bidding. At the direction of the Supreme Court we issued an alternative writ. We discharge the alternative writ and grant the petition.

Section 2550 of the Streets and Highway Code [1] provides that a county and certain cities may by resolution establish a local Service Authority for Freeway Emergencies (service authority or SAFE). Pursuant to section 2550, San Diego County and the required cities established San Diego SAFE to implement an emergency call box system on San Diego County freeways. San Diego SAFE solicited bids for an emergency call box system (the project) and subsequently contracted with Comarco, purportedly the second lowest bidder. The project is to be financed by a…