Legal counsel for a scooter company shut out of Santa Monica’s official pilot program has sent city officials a letter calling Planning Director David Martin’s final decision to select Bird, Lime, Lyft and Jump “arbitrary and capricious.” The letter from the president and general counsel at San Francisco-based Spin said Martin turned “objective criteria on its head” to score Bird and Lime higher in the assessment.

“Furthermore, the arbitrary redefining of the criteria was clearly done to ensure that only the companies that rogue-launched in the City would be scored the highest, contradicting the City’s stated preferences as well as the supposed objective nature of the selection process,” said the letter signed by Euwyn Poon.

The letter is addressed to Martin and CCed to the entire City Council, City Manager Rick Cole and City Attorney Lane Dilg, according to a copy obtained by the Daily Press. Cole confirmed he received the letter and other city officials recently met with Spin.

“While Spin may be disappointed in the result, the Director’s selections were well-reasoned and well within his discretion,” said public information officer Constance Farrell. “As the Director wrote in his memo, ‘the selected companies bring a wide range of local, national and international experience that will contribute to a comprehensive and informative pilot program.’”

In August, a selection committee made up of city staffers and a Santa Monica Police Department Lieutenant scored a dozen companies that applied to participate in the official Shared Mobility Pilot Program in seven categories, including compliance and safety. Rideshare giants Lyft and Jump (which is owned by Uber) scored highest. Lime and Bird, which were already operating with permits in Santa Monica at the time, scored poorly. In fact, Bird’s initial application scored near the bottom (tenth out of twelve companies).

The selection committee ranked Spin third, with high scores for compliance, public education, and safety. The start-up operates scooter and bike share programs in fourteen cities and prides itself on forming public partnerships before launching.

Spin’s team met with several officials including City Manager Rick Cole, Acting Chief Mobility Officer Francie Stefan, and Bike Share Coordinator Kyle Kozar in May and June. The company could have applied for a permit to launch before the pilot, similar to Bird and Lime, but decided not to.

“From our perspective, it didn’t make sense for us to commit the resources to launch in the market when we knew this process was about to start. We also knew the city was going through a lot of headaches,” said Brian No, Spin’s head of public policy.

No was hopeful Martin would select his company based on the selection committee’s rating. He was shocked when he got the news Bird and Lime were chosen.

“We don’t think the process was done in a fair, objective way,” No said, arguing the dramatic differences in scoring show the selection was arbitrary.

In a memorandum released earlier this month, David Martin wrote he was aware Bird and Lime had both incurred several hundred thousand dollars in fines, but said they had both recently shown a willingness to work with the city. The Planning Director gave the two companies top scores in every category except compliance, where he docked two out of ten points.

Martin valued local experience higher than those in the selection committee.

“To exclude such experience going forward would unnecessarily short-change the program by potentially excluding operators who have direct knowledge and experience,” Martin wrote,

But Spin’s letter argues his rational arbitrarily redefined the criteria to hurt qualified applicants and “reward specific low-ranked applicants that knowingly broke the law.” The company has not filed a lawsuit at this time.

The city ordinance allowing the pilot allows “two shared mobility operator permits.” The City has issued four scooter permits, allowing Lyft and Jump to deploy both e-bikes and scooters.

“The ordinance language mandates two in each category, but does not limit to only two in each category,” Farrell said.

“I think we have a strong argument to make that if the city is able to make adjustments to the pilot program as it did when it issued a final decision, it should use that same flexibility to allow Spin to participate,” No said.

The pilot program began Sept. 17 with 2,000 electric bikes and scooters distributed throughout the city.

kate@smdp.com