Appeal from the United States District Court for the Central District of California Florence-Marie Cooper, District Judge, Presiding D.C. No. 2:06-cv-00118-FMC-RC.
The opinion of the court was delivered by: Pollak, District Judge
Argued and Submitted October 6, 2009-Pasadena, California.
Before: William A. Fletcher and Richard R. Clifton, Circuit Judges, and Louis H. Pollak,*fn1 Senior District Judge.
On this appeal, the question addressed is whether, as appellant Candido Marez contends, the district court's grant of summary judgment in favor of defendants was in error. Candido Marez ("Marez" or "plaintiff") was the owner of Montrose Supply, a vendor of a wide variety of products to the Department of Water and Power of the City of Los Angeles ("DWP"), from the late 1980s until 2007, when he sold the business. In 2006, plaintiff, proceeding under 42 U.S.C. § 1983, sued DWP in the Central District of California, alleging that the agency had violated the First Amendment by engaging in adverse action against him because of his public criticism of DWP's procurement procedures.
A. The Procurement Process
In order to procure the broad range of goods it needs, DWP relies on small and large vendors. Prior to 2004, DWP awarded contracts through two distinct processes. The first process used "Subpurchase Orders" ("SPOs"), which permitted suppliers to sell small quantities of products directly to DWP purchasing personnel known as "storekeepers." Individual storekeepers awarded these small contracts at their discretion, thereby obviating any need for suppliers to engage in a competitive bidding process. However, SPOs were available only for purchase orders of less than $1000. The second DWP process used competitive bidding. Under this system, DWP publicized to suppliers an offer-request soliciting bids for a stated quantity of a needed product. The lowest bidder received the contract to supply that product. In 2004, DWP implemented extensive changes in the procurement process to eliminate the use of SPOs, which DWP believed were being manipulated by vendors trying to avoid the competitive bidding process.*fn2
In the winter of 2004 the Los Angeles City Council established a Small and Local Business Advisory Committee. Plaintiff was appointed to the Committee. The Committee's provenance is described in a February 4, 2004 letter from Mario Marin, Director of the Mayor's Office of Small Business Services, to the plaintiff:
Congratulations on your recent appointment to the Small and Local Business Advisory Committee (SLBAC), which was created by a legislative act sponsored by Councilmember Eric Garcetti, Chair of the Housing, Community and Economic Development Committee, and Councilmember Wendy Gruel, Chair of the Audits and Governmental Efficiency Committee. . . .
Over the last year, the City has worked diligently to extend opportunities to businesses in the City of Los Angeles. Initiated in a report by Mayor Hahn, City Attorney Delgadillo and Controller Chick, recommendations were proposed to create a procurement system that was efficient to City departments, cost-effective to the taxpayer, and opportunistic to the small business owner. At a recent public hearing attended by over 300 business owners, community members suggested that a standing committee be established to address small business concerns. As a result of that hearing, a motion was introduced creating the SLBAC. . . .
We look forward to working with you to make the City of Los Angeles the most business friendly city in the country.
The Committee formed a Mega-Contracts Subcommittee of which plaintiff was selected to be one of the two co-chairs. Once he became co-chair, plaintiff began receiving a number of complaints from small business owners about a DWP contract for janitorial services awarded to Empire Janitorial Cleaning Supplies ("Empire"). The chief complaints were that Empire was (1) providing inferior and dangerous items, including broken bottles, and products that lacked safety information and had hand-placed labels, (2) charging prices that were too high, and (3) shrinking the ...