Can San Diego limit the number of scooter companies operating in the city?

San Diego’s decision to shrink the number of scooter companies operating in the city to four is facing a legal challenge from Bird scooters, which must cease operating here next month because it wasn’t among the four companies chosen.

City officials say they decided to reduce the number of operators from seven to four as part of a sweeping effort to crack down on scooter abuse and make operators more accountable to the city for self-enforcement.
Officials from Bird, which finished fifth in the city competition, say the selection process was flawed and lacked transparency. They have formally protested the city’s decision to go instead with operators Lime, Lyft, Spin and Link.

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Legal protests can sometimes force government agencies to re-start a selection process. Two years ago, San Diego was forced to re-start the process for choosing a new ambulance provider when American Medical Response legally protested the city’s selection of Falck USA.

Bird is demanding that the city “relaunch” the process and make it “lawful, authorized and balanced.” If the city rejects the appeal, Bird could file litigation known as an administrative writ.

Among Bird’s complaints is that the city staff launched the selection process – known as a request for proposals – eight months before receiving authorization from the City Council to shift away from allowing an unlimited number of operators.

“Staff broke the city’s protocols by putting the cart before the horse,” Bird officials say.

Bird also suggests it may have unfairly lost points compared to other companies based on complaints about the company’s scooters on the city’s Get it Done tipster app.

That concern is based on city officials not updating Get it Done to include all seven of the scooter companies operating in the city, potentially putting the companies that were listed at an unfair disadvantage.

More broadly, Bird officials say city officials have denied them access to how the selection process worked.

Clint Johnson, who handles litigation and risk management for Bird, said company officials want to know the criteria city officials used in making their selections, which city officials were involved in and how they scored Bird and the other operators.

“It’s the basis for the decision – it’s the scorecards of the committee members, it’s the names of the committee members,” he said. “Who made this decision internally – what were their internal scores, what were their notes, what were there grading criteria.”

City officials declined to answer specific questions about Bird’s legal protest, contending that details about the process and how the selections were made will be withheld until the contracts are awarded next month.

But in general, a city spokesman said Bird should already know the criteria.

“Proposers interested in submitting a response to a request for a proposal are responsible for carefully examining the RFP, the contract and all documents incorporated into the contract by reference before submitting a proposal,” said the spokesman, Arian Collins. “Each RFP defines the specific requirements of the RFP and provides the proposal evaluation and award process.”

Johnson, the lawyer for Bird, said the city is not being transparent enough about the process.

“Procurement laws exist in San Diego and everywhere in the country to provide a fair and reasonable process for the spending of taxpayer money or the use of public land,” he said. “What I think we’ve seen with this scooter mobility RFP process is a real lapse in transparency and a lapse in the process of procurement laws are designed to protect.”

The new scooter rules, which the City Council approved in May, prohibit sidewalk usage, demand scooters to be parked in city-painted corrals and require operators to handle complaints about their scooters within one hour.

Council members called the new rules a compromise between responding to vocal complaints about scooters while still allowing the devices to become a popular way to get around.

Scooter usage has sharply increased in recent months after a pandemic lull.

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