Author: Philip M. Faccenda

Last week an E-City Beat reader made the following comment on one of our Facebook posts, referring to current Great Falls city commissison candidate Susan Wolff:

“And don’t forget Commission candidate Wolff’s part in the HUD scandal that exposed Commission fingers in the Block Grant pot.“

The comment apparently points back to a piece on E-City Beat called ‘The Who, What, And How Of The Great Falls Good Old Boys And Gals Club’ from May 2018 outlining the “…distribution of federal Community Development Block Grant (CDBG) taxpayer funds by the Great Falls Community Development Council (CDC) and the Great Falls City Commission.”

The article cites a letter written from the U.S. Department of Housing and Urban Development to the City of Great Falls about the plain conflicts of interest surrounding the local CDBG funding process.

Here is a portion of the HUD letter.

“The City’s letter dated December 20, 2017 identified 14 individuals who participated in the Commission or Council between 2012 and 2017, and who would also be identified as persons covered by Section 570.611(c). In total, $522,252.00 was awarded by the Commission and Council between 2012 and 2017 to entities from which the 14 members noted above, or those with whom they have business or immediate family ties, obtained a financial interest or benefit.”

Susan Wolff is named as one of those ’14 individuals’ because as a member of the Great Falls Community Development Council she was approving taxpayer funds for an organization on which she was a sitting board member.

“Susan Wolff – CDC Member – Board Member GFDA which received $40,000 (2017)”.

By the way, current Mayor Bob Kelly and City Commissioner Tracy Houck were also named by HUD as two of the individuals among the 14 with conflicts of interest.

That was then, this is now – and it’s important to understand how ‘then’ applies to ‘now’.

At the 10/5/21 City Commission work session the topic of how to distribute the over $19 million in ARPA (American Rescue Plan Act) funds received by the City of Great Falls was discussed in depth.

One of the options discussed was the possibility of granting large chunks of the ARPA funds to local non-profits like United Way of Cascade County and allowing them to administer the funds to sub-recipients.

In fact, according to the minutes from the meeting, United Way President Gary Owen participated in the commission Zoom meeting and “…spoke in support of United Way being designated as a potential recipient of the City’s ARPA funding.”

Here’s the connection to candidate Wolff: On review of all of the candidates’ campaign fundraising records it comes up that Kim Skornogoski/Ochsner is not only Wolff’s official campaign treasurer but also donated $152.62 to the Wolff campaign.

Kim Skornogoski is the Marketing Director for United Way of Cascade County and her boss is the above mentioned Gary Owen

While the ‘campaign treasurer’ designation is listed as Kim Skornogoski and the donation is reported to be from Kim Ochsner, they are the same person.

In addition, another donor to the Wolff campaign is the Volunteer Coordinator for United Way of Cascade County, Lynette Scriver-Colburn.

Here’s a handy tool to look up local candidate campaign info including who gives how much to each candidate.

Given that the final decisions as to how Great Falls’ ARPA funds will be distributed won’t occur until after a new city commission is seated in January 2022, it’s necessary to closely scrutinize the candidates who are seeking to fill the two open seats on the commission concerning their campaign finance connections to local non-profits lobbying for possibly millions of dollars of taxpayer money.

We don’t need any more CDBG fiascos or conflicts of interest on our city commission.

We’ll be watching. Very closely.

Oh my gosh!

Private procurement for architectural and engineering services are one thing, but Federal procurement rules for procurement of such services are quite another.

The question is: Did the City of Great Falls violate Federal Procurement Laws relative to Conflicts of Interest – Unfair Competitive Advantage?

Federal law places a standard of conflicts of interest largely on what a “reasonable Person” could assume to be problematic.

Significant events concerning the Indoor Recreation Center/Aquatics Facility are listed chronologically below.

• In 2016, the Parks and Recreation Master Plan lists a new recreation center and indoor pool as a listed priority for Great Falls.

• In January of 2020, the City learns of a possible Department of Defense grant for the benefit of military families at Malmstrom AFB.

• In early June of 2020, the City concludes that in order to complete a grant pre-application it needed the assistance of an architectural consultant.

• In mid-June 2020, the City hires a consultant, without notifying all local architectural firms, to interpret a loosely evolved program for a facility and complete a “preliminary design”.

• On June 26, 2020, the pre-application is due.

• In July of 2020, the City’s pre-application receives a favorable response from the DoD’s Office of Local Defense Community Cooperation that the City’s application would be placed on a list for consideration for the grant.

• In late August 2020, feeling hopeful that there was a good chance of final grant approval, the City publishes a Request for Proposals (RFP) for all interested architectural and engineering firms. Respondent’s submissions were due on September 21, 2020. It is important to note that the issued RFP contained design work from the City’s grant pre-application.

• On September 12, 2020, the City learns of a $10M grant award from the DoD.

• On October 13, 2020 the City Commission awards the architectural/engineering contract to the local A&E team that aided the City in completion of the grant pre-application and “preliminary Design”. The City then negotiates a reported fee of $1.8M to the A&E firm, firms.

After rejecting first one site located near the main gate to MAFB, and another next to the soccer fields on 57th Street due to poor soils conditions, which reportedly would have added $2.6M to the foundation construction costs, a third site at North Kiwanis Park was rejected by MAFB because of access concerns.

A site taking approximately one third of developed Lions Park has been selected.

At this point keep in mind that $10M of the proposed $20M construction cost will be paid by the Federal grant, and it is my opinion that Federal Procurement laws are applicable to the selection of the A&E firm, or team.

Again, Federal procurement law treats the subject of “Unfair Competitive Advantage” seriously and considers “appearance” of the process important.

Government, and non-federal entities, Local government entities as grantees, cities, and tribal governments must follow the Code of Federal Regulations, in particular 2 CFR 200.319, which is cited below.

§ 200.319 Competition.

(a) All procurement transactions for the acquisition of property or services required under a Federal award must be conducted in a manner providing full and open competition consistent with the standards of this section and § 200.320.

(b) In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements.

In a response by a Federal agency to the question: “Does the guidance impact vendor’s ability to play a role in helping in helping to draft specifications for Requests for Proposals (RFPs).

The answer: “A vendor that is a contractor involved in the development, or drafting of specifications, or,requirements for an RFP has an organizational conflict of interest that would exclude the vendor from competing for the resulting procurements under the procurement requirements at 2 CFR 200.”

The City’s Indoor Recreation Center & Aquatics Facility lists the work done by the initial A&E contractor “is a preliminary design and renderings that were submitted with the proposal (grant pre-application). The concept is offered to provide proposed respondents an idea of what the Department of Defense approved and anticipates.”

In my opinion, the production of a preliminary design constituted a contribution to the RFP, and should therefore exclude the initial contractor from the follow-on work.

During the October 13, 2020 City Commission meeting, only one commissioner, Commissioner Tryon, voiced concerns that the process of selecting the A&E consultant didn’t appear to be fair and asked that the hiring decision be postponed so that the process could be examined more closely. His dissenting vote was the only no vote.

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Did the City’s Indoor Recreation Center and Aquatic Facility consultant selection process violate the Federal Procurement rules?

In June of last year, the City hired a local architectural/geotechnical engineering team, without advertising so all interested local firms could compete for the Department of Defense $10M grant pre-application project.

After the award, the City Manager said, not to worry, all local firms would be given equal opportunity to respond to a request for proposals (RFP) for the much larger commission for architectural services for the $20M project if the DOD approved the grant application.

Some firms questioned if the actual design commission would be handled more fairly and suggested a blind open design competition, a selection process that the city rejected.

In late August, the city issued an RFP with submissions due on September 21. Ten architectural firms submitted proposals, and the selection process began. In my opinion, the RFP was the most poorly done RFP that I have ever seen, and I’ve seen a few. I questioned whether the author of the RFP had any experience writing RFPs for architectural services.

To make matters worse, the RFP contained a site plan, floor plans and renderings produced and identified as work by the firm who was awarded the pre-application commission. Something I’ve never seen before. At this point, some architectural firms suspected that the selection could have been predetermined.

Additionally, and in spite of the fact that Montana law and city code requires an architect to provide professional services for the project, the RFP addresses the request to “consultants and not to architectural firms.

At this point, some might say the issues presented here are only circumstantial evidence of a shady process, or a wild conspiracy theory. You can be the judge.

The real issue is, was an unfair advantage given to the eventually chosen architectural/engineering team. Here is what the Federal Rules have to say about the prohibition of “Unfair Competitive Advantage”.

2 CFR part 200.319 “requires that entities that develop or draft specifications, requirements, statements of work, invitations for bids, or requests for proposals must be excluded from competing for such procurements”.

Federal Regulations also address “Unfair Competitive Advantage” in terms of Unequal Access to Information, or Biased Ground Rules:

“Without limitation, an unfair competitive advantage exists where a contractor competing for an award possesses either proprietary information (as defined in Regulation 19-445.2010© that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract”.

This would include all information and conclusions from the city appointed Task Force, which was presumedly provided to the firm hired to complete the pre-application for the DOD grant and was later awarded the architectural contract with an estimated fee of $1M.

Both sections of the Federal Regulations should be examined relative to the architectural selection process, but 4 out of 5 of the city commissioners, on a less than cursory examination felt that no unfair advantage existed in the city’s process.

A request by Commissioner Rick Tryon to delay action until further information could be researched was denied.

Also, there is a question of whether, or not, the city failed to follow their own written policy of supporting woman and minority owned businesses. From a review of the city’s selection committee’s grading sheets, no additional consideration was given to the only woman-owned firm competing for the project. Keep in mind that the project will have $10M in Federal funds and thereby should follow Federal initiatives established at various levels for women and minority owned businesses.

With procurement practices like this, Great Falls can never hope to attract creative talent to our city and will unlikely see new ideas and great architectural design.

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