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.