Sunday, February 03, 2008

Written 2/3/2008

Chairman Davis Goes on Offensive

Board of Commissioners Chairman Melvin Davis has gone on the offensive following the publication on Monday, January 28, of the story in the Athens Banner-Herald under the top-of-the-front-page headline "Oconee officials again called out."

The story, by Oconee reporter Adam Thompson, focused on the complaint I filed with the Georgia Attorney General regarding the January 4 meeting of the Selection Committee that is reviewing the bids for the upgrade of the Rocky Branch sewage plant. The County refused to give public notice about the meeting, making it impossible for citizens to attend.

Davis has ignored the question of the meeting’s legality and defended the County’s decision to keep the specifics of the bids secret.

Rob Peecher, editor and publisher of The Oconee Leader, emailed me that "Melvin Davis called and wanted to talk to me" the day the Banner-Herald story ran. Peecher, in questions he posed to me on the evening of January 31, laid out Davis’ defense for the County’s decision to close the bidding process for the Rocky Branch upgrade.

At the Board of Commissioners meeting on the 29th, Davis set aside the agenda to launch into an attack on the critics and asked County Attorney Day Haygood to justify the decisions made about the bidding process.

The Oconee Enterprise, which is the designated recipient of County legal notices and often serves as the mouthpiece for County officials, ran a story in its January 31 edition under the headline, "Chairman fights back in open records dispute."

The paper quotes Davis as saying at the Tuesday (January 29) meeting that "falsehoods and insinuations" had been circulated about the bidding process, but that the County was following strictly Georgia law.

The County’s case, as spelled out by Haygood at the January 29 meeting, is based on a distinction in Georgia law between a competition with sealed bids and a competition with sealed proposals. The County issued a Request for Proposal.

Competitive sealed bids are opened and evaluated without discussion with the bidders. The law says the County can close these bids to the public, but it does not have to do so. The County does not have to select the low bidder.

The County can negotiate with the bidder in the case of competitive sealed proposals. The County is not allowed to disclose the contents of proposals to competing bidders, according to Georgia Code.

Haygood at the meeting on January 29 said the County is using the competitive sealed proposal process to save money. He also allowing citizens to see the bids would violate the law and be a misdemeanor.

The County also used the competitive sealed proposal process when it first advertised for bids for the Rocky Branch upgrade in June. In response to an open records request I made after the bids were received, the County released them to me.

The County has never explained why it was not a violation of the law to release the bids last time and it is a violation of the law today. The law has not changed.

When I examined the bids in the June competition, I learned that the County had given a tip to at least some bidders at the presubmittal conference. The County said it was willing to abandon membrane filtration at the Rocky Branch plant in favor of a less sophisticated treatment technology. The County received three bids. The Selection Committee recommended a bidder who wanted to abandon membrane filtration.

After I revealed this irregularity, the County abandoned the bids and started the process over. This time, it has refused to allow any access to the bids.

In my complaint to the Attorney General, I focused on the County’s denial of access to the Selection Committee meeting of January 4 and denial of access to the evaluation documents that Committee produced.

Dr. Kent Middleton, an expert on media law and a faculty member at the University of Georgia, has told me he believes that meeting is covered by the case law that has built up for the Georgia Open Meetings laws. Hollie Manheimer, executive director of the Georgia First Amendment Foundation, said she believes that as well.

The Open Meetings Laws allows an agency, such as the Selection Committee, to go into closed session under a limited set of circumstances, but only if it meets first in open. Opening of bids is not one of those circumstances that would allow the Selection Committee to go into closed session.

Even if it were legal to go into executive session, the Selection Committee would be required to take that action in public at a meeting for which it gave proper notification of the time and place of the meeting at least 24 hours in advance.

The Request for Proposal issued for the second round of competition specifies that membrane filtration must be used in the plant design, but it allows two options.

The first is the vertical loop reactor and membrane biological reactor specified in the application the County made for the permit to discharge the treated sewage water from the plant into Barber Creek.

The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.

I have spoken with two experts on sewage plants. Both assured me these designs are not the same and can produce different outcomes.

The County has decided up to this point to keep the discussion of these options and their consequences from the public. In comments entered into the record of the January 29 meeting, the Board of Directors of Friends of Barber Creek asked that no action be taken by the Board of Commissioners until the public has had a chance to review the bids.

At the January 29 meeting, Jimmy Parker from Precision Planning Inc., who is chairing the Selection Committee, said three bidders have been recommended for further discussion. They are Brown and Caldwell of Atlanta, HSF Engineering of Snellville, and Wiedeman & Singleton of Atlanta.

He said he plans to come back to the BOC on February 26 with the results of that negotiation.

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