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Fairview Valley Fire, Inc. v. Department of Forestry and Fire Protection

California Court of Appeals, Fourth District, First Division

January 9, 2015

FAIRVIEW VALLEY FIRE, INC., Plaintiff and Appellant,
v.
DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Bernardino County, No. CIVVS901308 Steve Malone and John P. Vander Feer, Judges.

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[Copyrighted Material Omitted]

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COUNSEL

Pope & Gentile and Daniel K. Gentile for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Mark Beckington and Michael Glenn Witmer, Deputy Attorneys General, for Defendant and Respondent.

OPINION

BENKE, Acting P. J.

In this government contracting dispute between defendant and respondent Department of Forestry and Fire Protection (Cal Fire) and plaintiff and appellant Fairview Valley Fire, Inc. (Fairview), we affirm a judgment entered in favor of Cal Fire on an order sustaining Cal Fire's demurrer.

We agree with Cal Fire that, in approving in advance the vendors from whom Cal Fire will actually later hire emergency fire equipment, the agency

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is not required to employ the formal competitive bid process set forth in the Public Contract Code.[1] Under the express terms of Cal Fire's written policies and procedures, no binding contract arises between Cal Fire and an equipment vendor until a vendor's equipment is actually dispatched by Cal Fire in an emergency. Accordingly, the emergency exemption to the competitive bid procedures set forth in section 10340, subdivision (b)(1) applies to Cal Fire's emergency hiring, and the trial court did not err in sustaining Cal Fire's demurrer to Fairview's declaratory relief claim challenging the agency's emergency equipment hiring process.

We also find the trial court properly dismissed Fairview's causes of action challenging its suspension as a Cal Fire vendor. Cal Fire suspended Fairview as a vendor when it learned that, among other matters, Fairview presented Cal Fire with false billing information and attempted to avoid payment for fuel used during a fire incident. Cal Fire did not breach any agreement with Fairview, when, after Fairview was suspended as an approved vendor, Cal Fire declined to hire Fairview's equipment at the scene of a fire incident. Moreover, Fairview has no claim related to the underlying suspension because, while the case was pending in the trial court, Cal Fire lifted the suspension.

FACTUAL AND PROCEDURAL BACKGROUND

A. Cal Fire Equipment Hiring Policies and Procedures

Cal Fire responds to a wide variety of emergencies throughout the state, including more than 5, 600 wildfires each year. Although Cal Fire itself owns and operates more than 3, 000 fire and emergency response vehicles, it also depends on the availability of equipment and services it hires from private vendors. Cal Fire has adopted a set of Hired Equipment Policies and Procedures (the HEPP), which govern hiring of equipment and services from private vendors.

Under the HEPP, vendors apply to Cal Fire to enter into an Emergency Equipment Rental Agreement (EERA). The application process requires that vendors satisfy Cal Fire with respect to a variety of matters related to the availability, preparedness and safety of their equipment, and includes inspections to verify insurance, personnel, and the location of equipment.

When a vendor's application is approved, the vendor and Cal Fire execute an EERA embodied in a Cal Fire-294 form (Cal Fire-294). Under the terms of a Cal Fire-294, the parties agree that: "[U]pon request of CAL FIRE the

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contractor will furnish the equipment listed on the CAL FIRE-294 if the contractor is willing and able at the time of request. The agreement also establishes the conditions of employment, the rate and method of payment, and equipment condition requirements."

Importantly, the HEPP states that: "The EERA is a pre-incident agreement that becomes a binding contract after dispatch." (Italics added.) The obligations set forth in the Cal Fire-294 are expressly subject to this provision of the HEPP.

The HEPP expressly provides that: "A Cal Fire-294 is required for all hired equipment except local government, National Guard and OES-ordered equipment. Other than those exceptions, no equipment shall be considered hired by Cal Fire or ordered to work until a Cal Fire-294 has been completed." (Underscoring omitted.) The HEPP further provides that any Cal Fire employee who hires a piece of private equipment is responsible for verifying the existence of a Cal Fire-294 and ...


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