Category: City Commission

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.

Note: Please share this piece with as many of your friends as you can and encourage them to do the same.

Editors note: E-City Beat has requested and received permission to copy and paste Great Falls City Commissioner Rick Tryon’s reports from his public commissioner’s Facebook page, ‘Rick Tryon for a Greater Great Falls’.

“At Tuesday’s (1/19/21) City Commission meeting the commission voted 4 – 1 to approve a land swap between the City of Great Falls and the Great Falls Public School District.

I was the lone dissenting vote.

The land swap is briefly described in the agenda packet as follows:

“The District will exchange a 10 acre parcel of land adjacent to the Seibel Soccer Park, referred to as the Loy land, for City property that includes the 6 most easterly lots of Kranz Park. Both properties have been valued to be like kind with equal or greater value of approximately $150,000. The City and the School District accept such valuation and consideration.”

You can find further the details of the proposed swap in the agenda packet here.

The reasons for City staff recommendation to proceed with the exchange are listed in the packet as follow:

1. The GFPS commenced the land swap process with the City in good faith. Staff believes the City should honor the District’s efforts and complete the exchange.

2. There are concerns by residents about parking around Great Falls High School. The swap demonstrates a willingness of the City to assist the school district with addressing the problem, which from time to time, requires City intervention.

3. Even though the City will not immediately use the exchanged property, or even has specific plans for it at this time, staff encourages the Commission to consider future options for the site that are complementary to long range park plans.

a) As the City grows eastwardly, the area is underserved by park and green space.

b) Utilization of the existing soccer complex is considerable. It is easy to recognize need in the future for additional recreation space, practice and/or play fields.

4. The School District has been previously approached by other private parties interested in purchasing this property adjacent to the Great Falls Soccer Complex. If the property was sold and eventually developed, it is unlikely that the City would be able acquire the parcel at a later date for expanded recreational opportunities as described above.

5. As indicated by the District, it does not have discretionary funds, other than the value of the property being swapped, to pay the City directly for the Kranz Park lots and commence parking area improvements.

I didn’t vote against the trade because I oppose 10 additional acres of City park or a parking lot for GFHS. My reasons for opposition to the land swap were these:

1. The commission was not provided with any analysis or estimates as to the cost of maintaining and developing 10 more acres of City park land, which will have to be mowed, weeded, watered, kept clean etc. or where the money would come from to maintain or develop the property.

I think we owe the taxpayers a better explanation as to how and why we’re spending their money.

2. The commission was not proved with a complete, professional appraisal of the taxpayer’s Kranz Park property before the swap was voted on, only a Cadastral card which is not good enough in my enough in my opinion. A professional appraisal was provided to the commission for the District’s property.

3. Neighborhood Council #9, the neighborhood surrounding Kranz Park, did not vote on the land swap as presented at Tuesday’s public hearing. While the NHC vote is not required, we should have heard from the folks in that neighborhood through their NHC before approving the swap.

I didn’t hear any compelling reasons as to why the land swap was an urgent matter. I argued that we should wait and hold the public hearing and vote after we had more time to gather information, 4 – 6 weeks at the most.

I think your City Commission owes you a more deliberative process than was delivered in this case.

You can watch the video of the public hearing and vote here.”

Here are a few Great Falls City Commission updates and answers to questions and comments I’ve received from folks recently.

COVID-19

City County Health Officer Trisha Gardiner provided an update at Tuesday’s city commission meeting and there’s some good news: the numbers in Cascade County are heading in the right direction over the past week or so with fewer positive tests, hospitalizations and COVID-19 deaths.

Add that to the news that Cascade County/Great Falls received our first shipment of vaccines this week and it looks like we’re finally seeing the beginning of the end of the pandemic.

I asked Gardiner about citizen concerns over the CCHD anonymous tip line for reporting local business non-compliance with mask and other mandates.

Her response was that both the State and County have tip lines but that the County asks for, but does not require, names and contact info for those reporting non-compliance issues.

She further added that the County contacts any business that has been reported for non-compliance to get their side of story and that so far the County has not levied any fines for non-compliance.

You can find City Commission meeting details and info here.

Animal Shelter

At the City Commission work session we heard from Deputy City Manager Chuck Anderson concerning the Animal Shelter Request for Proposal (RFP) response from the Maclean-Cameron Animal Adoption Center and City staff’s final analysis and recommendations as well as response from MCACC Board members.

You can view all of the presented materials here.

Great Falls Voyagers

The Commission voted 4-1 to deny a request from Great Falls Baseball Club, Inc. for 2020 rent forgiveness in the amount of $10,648 for Centene Stadium, home of the Great Falls Voyagers. I voted with Mayor Kelly and Commissioners Moe and Houck to deny the request. Commissioner Robinson voted in favor of the rent forgiveness.

Mayor Kelly proposed deferring the payments over ten years with no interest charge, so the GFBC Inc. will pay about extra $1000 per year for rent on the stadium for the next ten years. I will support that proposal if it comes to the Commission.

For me the issue wasn’t about getting money in the City’s general fund. It was about the message that we would be sending to the many local businesses and their employees who also had to shut down and lose incomes because of COVID-19 without a subsidy from the City or ‘forgiveness’ of their City utility bills or other expenses.

To my mind those employees and businesses are no less valuable to the community than the Great Falls Voyagers.

In fact many of our suffering local businesses don’t come anywhere near to the luxury of having a business relationship with a billion dollar industry like Major League Baseball.

I love baseball and I love our local farm club but for me this was a simple issue of fairness and equity. The Voyagers will be fine.

Stay tuned for more regular City Commission updates.

While hypocrisy isn’t exclusive to politicians, it certainly is more disappointing when we see it in our elected officials.

Case in point. At last week’s Great Falls City Commission work session, Commissioner Mary Moe presented a draft resolution addressing nondiscrimination, which she authored. Her cover letter includes the following:

“I am attaching a draft resolution that would accomplish something really substantive in addressing the concerns we heard last night. I think we could do something that really moves the needle in terms of public understanding, tolerance, and commitment to eliminating bias, and I am excited about that possibility.”

Based on this draft resolution and her previous comments on inclusivity and nondiscrimination it appears that Commissioner Moe feels very strongly about women’s advancement in society and the workplace. She talks the talk, but does she walk the walk?

During the recent selection of an architectural firm to help coordinate the construction of the City’s new indoor recreation and aquatics facility, Moe voted to hire the City-appointed selection committee’s recommendation without reviewing the committee’s scoring sheets or the proposals/designs of the 10 submitting firms.

It was known that one of the firms was a woman owned firm. In the selection committee’s ranking, Spark Architecture came in a very close second.

Not once did Commissioner Moe publicly recognize that the City’s own procurement policy is committed to inclusivity and the advancement of women and other Section 3 applicants for public contracts.

The City’s policy states; “Affirmative steps must be taken to assure that minority and women-owned businesses are used, when possible, as sources of supplies, equipment, construction and services. Grantees need to comply with Section 3 reporting requirements and should be pro-active in utilizing firms with a majority of Section 3 employees.”

It is important to note that Section 3 businesses are not entitled to receive contracts simply by being listed in HUD’s Section 3 Business Registry database.

Eligible businesses may need to demonstrate that they are responsible and have the ability to perform successfully under the terms and conditions of proposed contracts. Section 3 requirements at federal statute 24 CFR 135, then provides preference for contracts and subcontracts to these firms – but not a guarantee.

Keep in mind that this project includes $10M of Federal funds.

Spark Architecture’s combined score was only behind the City’s selection committee’s recommended firm by 4%. Typical affirmative action practices award a section 3 applicant a 5% add-on.

Note: The above architectural rendering was part of Spark Architecture’s submission.

Spark Architecture’s principal has been directly involved in several similar aquatics facility projects during her practice in Arizona.

As a side note, I am reminded of President of the Great Falls Development Authority, Brett Doney’s comment that in order to promote economic development in our city, “We must work to recruit and retain young talent”.

We should all ask if in this case, whether the infamous Good Ol’ Boys Club in Great Falls trumped our elected official’s hollow words of inclusivity and nondiscrimination.

As a Great Falls City Commissioner I am always open to and interested in hearing suggestions, criticisms, and plain ol’ complaints from my fellow citizens about how City employees and officials are performing or how City policy is working, or not working.

I do my best to bring citizen’s concerns to the attention of the appropriate personnel or to bring them forward in a public forum, with the goal being to get answers and solutions.

Developing a more transparent, responsive City government is one of the top concerns I continue to hear from local folks. And it remains one of my top priorities, along with crime reduction and economic development, as a City Commissioner.

That’s why I was happy to see the following press release this week from the City’s Communications Specialist, Lanni Klasner, announcing an online complaint and request form.

This helps make your local government more accessible, responsive, and accountable. I encourage my fellow citizens to access this new tool to help build a greater Great Falls.

“The Citizen Complaint & Request Form is now available as an online form. This format will make it easier for people to submit their requests with a mobile device. For people who need or prefer the pdf/print version, it is still available.

Here are the two ways to submit the form:

1. Fill out and submit the Online Complaint & Request Form.
2. Fill out the Print/Submit Complaint & Request Form. (The form can be completed electronically with Adobe Acrobat Reader. Adobe Acrobat Reader is available free of charge from the Adobe web site.) Print and mail forms to: City of Great Falls – ATTN: Citizen Complaint/Request, PO Box 5021,  Great Falls, MT 59403 OR drop off at any City Office.”

Lanni M. Klasner
Communications Specialist
City of Great Falls
2 Park Drive South
Great Falls, MT 59403
406-455-8496
lklasner@greatfallsmt.net