Unfair Or Illegal?

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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Philip M. Faccendahttp://www.straymoose.com
Philip M. Faccenda is an AIA award-winning architect and planner. He is the Editor-in-Chief of E-City Beat.

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