Banks Pumping Plant, State Water Project
In 2018, the California Department of Water Resources delegated the design and construction of the WaterFix project to the Delta Conveyance Design and Construction Authority (DCA), a Joint Powers Authority created by the State Water Contractors. The October 26, 2018 Amended and Restated Joint Exercise of Powers Agreement states
DWR, in coordination with entities that comprise the Authority, has developed comprehensive project specifications and administrative parameters applicable to the design and construction of the Conveyance Project, hereinafter referred to as the “Specifications.”
The agreement further states,
The Authority .. is authorized by DWR to design and construct, or cause the design and construction of, the Conveyance Project in accordance with this Agreement and the Specifications.
On May 2, 2019, DWR’s Delta Conveyance Office sent a letter to the DCA stating that all approvals for the WaterFix project had been rescinded. The letter also stated,
As the Department embarks on a new environmental review process and pursues new environmental permits, it will do this in tandem with design and engineering work needed. This work will occur in close partnership with the State Water Project Contractors funding the project. This approach provides the greatest opportunity to deliver a project ready for construction with minimal delay.
The Board of Directors for the DCA met on Thursday, May 16, 2019 in Sacramento. The Directors heard an “informational item” on a resolution authorizing the Executive Director to negotiate an amendment to the October 23, 2018 Joint Exercise of Powers Agreement “to permit the DCA to provide engineering, design, geotechnical, environmental and similar services in support of the environmental analysis for a potential Delta conveyance project.”
The DCA Executive Director’s written report to the Board stated that the DCA is continuing to provide invoices to DWR’s Delta Conveyance Office. The engineering and geotechnical work on the project was also reported to be continuing under the existing contracts with Jacobs Engineering and Fugro.
The Executive Director’s written report to the Board also outlined a “stakeholder engagement plan” for Delta tunnel project revisions:
3) The DCA worked closely with the DWR Communications team to help develop the stakeholder engagement plan. The DCA will take a significant role in actively engaging the community in understanding the project impacts and developing mitigation measures.
4) The Engineering team has been working on a revised work plan that focuses activities on advancing the engineering to better support the environmental review process and the stakeholder engagement program.
At the meeting, the DCA Board of Directors approved a procurement policy which authorizes the DCA Executive Director to award a “Direct Contract” for “change orders/amendments” to the project. This would potentially allow the DCA to award a contract for revisions to the WaterFix project directly without any competitive bidding process.
A separate provision in the procurement policy could exempt direct contracts from separate approval by DWR’s Delta Conveyance Office. These are the relevant provisions in the procurement policy:
- PROCUREMENT PROCEDURES
(c) Direct Contract. Notwithstanding Subsections (a) and (b), the following contracts may be awarded through direct contract:
. (4) If the contract is with any governmental agency
(5) Change orders/amendments.
(e) DCO Concurrence. Prior to the award of any contract under Subsections (a), (c) or (d), the Executive Director shall obtain the concurrence of the DCO regarding the noncompetitive procurement method. The Executive Director may obtain DCO concurrence on a per contract, per type of contract, or any other method as agreed to by the Executive Director and DCO. Notwithstanding the foregoing, DCO concurrence is not separately required for a contract if the DCO reviews and approves this Policy, and the procurement of the contract is conducted in accordance with this Policy.(underlining added.)
Delta stakeholders are closely following the DCA actions. Several Delta attorneys were present for the meeting, as was Sacramento County Supervisor Don Nottoli, a Delta legacy community member, and the Executive Director for Restore the Delta.
It appears that despite regulation or change in political decisions, vested interests can prevail by fiat — or bureaucratic manipulation.