Citizen Involvement Could "Taint" the Bidding Process
Back in early September, when an analysis of the bidding process for the upgrade of the Rocky Branch sewage plant raised a number of questions about procedures, Oconee County officials promised to modify the process and rebid the project.
County officials, who rebid the upgrade work for the sewage plant on November 16, did change the process, though not in the way they indicated they would in September.
The changes are designed to make it impossible for anyone to do the analysis that revealed the questions about procedures that were raised in September.
The County is refusing to open up the bids for public scrutiny and refusing to allow the public to observe or see records of the evaluation of those bids.
County Administrative Officer Alan Theriault has determined that "The mere fact that a member of the general public is in anyway involved may taint and compromise the entire process," according to an e-mail message he sent me on December 21, 2007.
Theriault elaborated in an e-mail message of December 26, 2007, that "The proposals will be available to the public at such time as the final award of the contract is made or the project is terminated or abandoned."
The Board of Commissioners is expected to let a contract for the $8-10 million project in January. The project will result in the upgrade of the sewage plant under a permit granted by the State Environment Protection Devision allowing for the discharge of 1 million gallons per day of treated wastewater into Barber Creek.
Despite what Theriault wrote on December 26, the recommended bid, but not the competing bids or the details of the evaluation, must be presented in an open meeting. The Board of Commissioners can go into executive session and exclude the public for specified reasons, such as to discuss the future acquisition of real estate or to discuss or deliberate upon personnel issues involving a public officer or employee. Discussing bids is not listed as a justification for a closed session.
State law allows the County to close access to the bidding process, but it does not require it to do so. So the decision to close the process this time is a major change in procedures.
"I...hope you understand that we must abide by the non-disclosure requirements of the competitive sealed proposal (RFP) process," Theriault wrote in his e-mail of December 21, 2007.
Neither the first nor the second RFP stated that there were any "non-disclosure requirements." Georgia Code (50-18-72 (a)(6)(B) states: "Public disclosure shall not be required for records that are: Engineers’ cost estimates and pending, rejected, or deferred bids or proposals..."
In response to an open records request I filed on August 16, 2007, the County granted full access to the submitted bids in the first round of competition and to the records of the evaluation.
As I reported in my blog of September 2, 2007, then County Utility Department Director Chris Thomas recommended that the contract go to Jordan Jones & Goulding, with headquarters in Norcross but a branch office on South Milledge avenue in Athens. JJ&G submitted a bid of $680,580.
Keck & Wood Inc. of Duluth had the low bid of $643,000, and Carter & Sloope, located in Butler’s Crossing in Oconee County, bid $690,000.
JJ&G had partnered with Precision Planning Inc. (PPI) of Lawrenceville in preparing the Design Development Report (DDR) the County submitted to the EPD with its application for its Rocky Branch discharge permit.
JJ&G also was in charge of construction of the existing Rocky Branch facility, which sprays treated sewage water onto hayfields on site and does not have a permit to discharge into any stream.
Thomas had asked two people from PPI to evaluate the three bids submitted on July 26 and included their scores for the bids in reaching his decision to recommend JJ&G.
The analysis of the September bids showed that bidders were given a side tip after the initial Request for Proposals was written. The tip, given at the a pre-submittal meeting of interested bidders, indicated that the County was interested in receiving bids that specified alternatives to the membrane filtration system that was specified in the formal bid documents.
JJ&G proposed as alternatives to the membrane filtration system an "oxidation ditch process" and a "fill-and-decant activated sludge system." Neither can treat water to the level possible with the membrane filtration system, according to the proposal.
After the September 4 meeting, the County announced it would start the bid process over. As I explained in my posting of September 10, 2007, Theriault sent me an e-mail message on September 7, saying he plans "to meet with Utility Department personnel in the next several days to discuss particulars of moving forward and develop a rough time-line."
Theriault said he expected the initial step to be a "Request for Qualifications" advertisement "to identify design firms or teams that have specific experience with membrane filtration wastewater systems and that would be interested in this project."
There is no evidence the County ever did that.
Advertisements for the new Request for Proposals appeared in The Oconee Enterprise on November 21 and 29 and again on December 6 and 13. As with the earlier bid, interested parties were required to participate in a pre-submittal conference. That conference was held on December 4, making the last two advertisements in the Enterprise meaningless, at least in terms of soliciting proposals.
Nine firms attended the conference. Deadline for filling a proposal was December 20, and the County listed the names of bidders (minus identifying addresses) that day. The nine listed were: O'Brien & Gere, Wiedeman & Singleton, Inc., Carter & Sloope, Inc., HDR, Inc., HSF Engineering, Inc., Stantec Consulting Services, Inc., Pendergrass & Associates, Inc./Woodard & Curran, Inc., Stevenson & Palmer Engineering, Inc., and Brown & Caldwell.
That is all the County intends for its citizens to know until the Board of Commissioners votes to spend citizen money on the engineering design and support contract in January. The contract will probably be for between $600,000 and $700,000, based on the last bids.
The Request for Proposals issued on November 16 (and made available to me by PPI, which handled the distribution in response to inquiries) is identical to the June 29, 2007, RFP in stipulating that a "Selection Committee appointed by the Oconee County Board of Commissioners" will evaluate the submitted proposals.
The Board did not appoint the Selection Committee in June, and it did not appoint the Selection Committee for the November bidding.
At the December 18 meeting of the BOC, Jimmy Parker of PPI announced that he was putting together a committee consisting of the head of the County Utility Department, the head of the County Public Works Department, Theriault and some number of people from PPI.
"What we generally do is allow everybody to rate those independently so we don’t skew the results," Parker said. "Then we’ll meet to compile and sort of average the results, total those up and get a consensus of the committee on a recommendation back to this Board."
Commissioner Jim Luke asked Parker "to notify us when that meeting will take place in case any of us want to join."
"Yes sir, be glad to," Parker said.
That agreement does not appear in the draft minutes of the meeting posted on the County’s web site on December 27.
I sent an e-mail to Board of Commissioners Chairman Melvin Davis, to current Utility Department Interim Director John Hatcher, and to Luke shortly after the BOC meeting asking to be notified of the review committee meeting. I also wrote that evening to Davis and Hatcher asking for access to the bids as soon as they were submitted.
Theriault’s e-mail to me of December 21 was in response to both of those requests.
"I assume that your request concerning the meeting notification involves your desire to attend that meeting," Theriault wrote. "I am afraid that we must respectfully decline."
Nothing I can find in Georgia’s Sunshine Laws allows for denial of notification of a scheduled meeting. Participants in a meeting can vote to go to a closed session, but only after giving notice of the meeting and under limited circumstances.
Thomas, then Utility Department director, handled the evaluation of the three bids submitted back in July. No mention was made of a meeting for that evaluation.
The actual RFP issued in November is much like the RFP issued in June, but the more recent RFP asks bidders to submit a base design and an alternate design. The base design should follow the Design Development Report submitted to the Georgia EPD as part of the application for the permit to discharge treated sewage water into Barber Creek.
The alternate design calls for membrane filtration as a tertiary step, rather than the use of a membrane biological reactor.
The implications of these design options for the quality of water that will be produced by the plant cannot be known without a review of the bids, and that is precisely what the County has said it will not allow.
Another change in the RFP is the specification that the County plans to use Construction Management at Risk to let the actual bid for building of the plant. Such a procedure requires the construction manager to complete the work at a fixed maximum cost.
The November RFP also specifies that construction of the plant should begin in October of 2008 and that the plant should be operational–and begin discharging into Barber Creek–in July of 2009.
Despite the lag in time between the two RFPs and the small number of changes, PPI had to issue two addenda to the RFP, one on December 10 and the other on December 18, or two days before the filing deadline. The addenda deleted items from the original RFP, offered clarifications, and added requirements.
I asked Theriault for updates on the rebidding process in September, October and November. In each case, he informed me he had nothing by way of new information to provide me.
In the end, it seems it took the County three months to make two big changes in the bidding.
The first was to allow an alternative to the membrane filtration technology proposed to the EPD when the County received the permit for the discharge into Barber Creek.
The second was to close citizens out of the review process so they cannot know the implications of that change.
Here are the e-mail addresses of the members of the Board of Commissioners:
Melvin Davis, (Chairman), firstname.lastname@example.org
Margaret Hale, email@example.com and firstname.lastname@example.org
Chuck Horton, email@example.com
Jim Luke, firstname.lastname@example.org
Don Norris, email@example.com.
The telephone number for all of them is 706 769-5120.