Copyright © 2019 Albuquerque Journal
SANTA FE – The Santa Fe City Council and its committees have debated various contracts – for services ranging from banking to security services to gopher control – in public in the past.
But that would change under recent legal advice from the city attorney’s office, and has some city councilors worried about reduced transparency.
“I’m mostly concerned that this is going to change somewhat how we do business and how we do procurement,” City Councilor Signe Lindell said during last week’s meeting of the City Council’s Finance Committee. “My concern is that when we get a bid, we aren’t going to have transparency on it, and I don’t think that anybody associated with this likes having less transparency.”
Lindell’s comment came after City Attorney Erin McSherry recommended that the committee go into closed executive session to discuss two items on the agenda having to do with awarding professional service agreements.
She said that the content of bidders’ responses to requests for proposals, or RFPs, is confidential information protected under the city’s procurement code and shouldn’t be discussed in public. Only the names of the bidders are public information, she said, until after a final decision is made. And only then do the contents of the proposals from all prospective bidders become public.
McSherry told the committee made up of five city councilors that all competitive bids going forward should be handled as she advised.
That’s not the way the city has been handling RFPs. Proposals have long been made public throughout the committee process, weeks before the full council makes a decision.
City Councilor Chris Rivera, another member of the Finance Committee, also expressed concern about what would be a less transparent approach to awarding contracts, which are sometimes worth millions of dollars.
“So any discussion at any city meeting from here on out, that’s your recommendation?” Rivera asked about retreating to executive session to discuss RFPs.
“If the proposals themselves are to be discussed, yes,” McSherry said.
She said that questions about the RFP itself and what is requested under the RFP may be discussed in public, but there should be no discussion of the contents of any proposals until after a contract has been formally awarded.
Open meeting exceptions
The state’s Open Meetings Act allows for some agenda items to be discussed in closed session, but a vote to take action on a matter must be taken in public. Among the act’s exceptions that allow discussion behind closed doors are items relating to some personnel matters, collective bargaining, the acquisition or disposal of real estate or water rights, threatened or pending litigation, and certain purchases.
An executive session doesn’t have to be listed on a meeting agenda. As long as the agenda item falls into one of the exception categories, committees can discuss those matters in private.
Last Monday, McSherry recommended the Finance Committee go into closed session for consideration of a four-year agreement with Intera, Inc. worth $758,000 to provide groundwater monitoring services, soil vapor monitoring, and other environmental and engineering services at landfill sites.
City bid evaluators’ score sheets and detail from Intera’s proposal had already been included in packet materials for the Finance Committee meeting that were published on the city government’s website. A note on the score sheet said another firm, identified as “Cottonwood,” had offered a cheaper bid.
“Though Cottonwood was the lowest price, they had the least experience with landfill monitoring, and did not provide adequate responses to the requirements for the RFP,” it says. It goes on to say lntera had the next lowest price and the most direct experience relative to the project.
The other item the committee took up in private was for on-call engineering services on water system capital improvements, which included a $325,000 bid award to Carollo Engineers and a $450,000 contract with Hazen Sawyer, another engineering firm specializing in water and wastewater treatment services.
Carollo and Hazen Sawyer received the top scores from reviewers against five other firms, according to the score sheets.
Committee members wondered out loud whether the behind-closed-door approach McSherry was recommending hamstrings the councilors’ ability to vet contract proposals. Lindell said there was no going back once a contract awarded. “It’s not like we’re going to go back and get $100,000 off from it,” she said.
Somewhat reluctantly, the committee did go into executive session to discuss the contracts and returned to public session to approve the recommended offers.
The following day, as chairman of the city Public Safety Committee, Rivera, citing a memo from the city attorney’s office, cautioned members of that panel not to publicly discuss the details of a potential contract with an Arizona-based company to provide “speed van” services, where parked SUVs with cameras monitor traffic and take pictures of speeding vehicles, resulting in citations.
Asked for a copy of the legal memo, McSherry said that, too, was not public information.
“I am not permitted to disclose information about my attorney-client privileged communications such as a written memo,” she said in an email to the Journal, explaining that doing so would violate the rules of professional ethics adopted by the state Supreme Court.
She added, “The reason for going into executive session was that the Councilors wished to discuss information about the specific offers made and those offers are confidential under the procurement code.”
Code not followed before
The consternation felt by Lindell and Rivera may be rooted in the fact that McSherry’s recommendation is a departure from how the city has done business for years – despite language in its own procurement code.
As a “home rule” city in New Mexico, Santa Fe until last year operated under its own procurement code, not the state’s.
The section addressing disclosure said, “Proposals are public records that are available for inspection in accordance with the Inspection of Public Records Act. However, the contents of any proposal shall not be disclosed until the award is announced so as not to be available to competing proponents during the negotiation process and to ensure a fair and equitable procurement process.”
The city scrapped the old code early last year, with the City Council taking action to adopt the state procurement code with a few modifications. The state code has similar wording about releasing bidders’ proposals only after a contract award has been made.
But even then, the city continued its old ways and openly discussed proposals at public meetings.
One example is an RFP for food and beverage service at the Marty Sanchez Links de Santa Fe golf course.
Because the proposals were publicly available, it came to light that the highest-rated bidder in the evaluation process apparently had, in its proposal, plagiarized information from the current vendor, which had submitted a bid to keep the contract. That led the city to start the process all over again.
And that’s just one example of the contents of RFPs being discussed in public by city officials over the years.
RFPs to conduct gopher eradication at city parks, equip city vehicles with GPS systems, provide banking services, hire a public relations firm, and a $1.55 million contract to provide security services at city properties are other examples in recent years.
In 2017, the City Council kept its banking services contract with Wells Fargo, despite local criticism about the scandal and sanctions the financial giant faced for opening millions of credit card and bank accounts without customer authorization, and controversy over its involvement in financing the Dakota Access Pipeline across Native American lands.
A full assessment of Wells Fargo’s proposal to keep the contract, comparing it to four New Mexico banks that also bid, was made public before the council’s vote.
McSherry notes that the current city procurement code says, “The contents of any proposal shall not be disclosed so as to be available to competing offerors during the negotiation process.”
She also pointed to a section that says, “The names of all businesses submitting proposals and the names of all businesses, if any, selected for interview shall be public information. After an award has been made, the appropriate selection committees’s final rankings and evaluation scores for all proposals shall become public information.”
McSherry said the public can expect not to be privy to proposal information that in the past has been included with City Council and committee meeting packets, and posted on the city’s website.
“You’ll probably see the recommendation and approval up to a certain amount (of money),” she said, adding again that all responses to RFPs become public after the offer is awarded.
Asked why the city hasn’t been following this practice for many years, McSherry, who was hired as city attorney last June, paused and said, “I’m not going to make that assessment.”
She said she realized that the city wasn’t correctly following the procurement code while the city was updating its procurement manual.
But will city councilors be willing to do down a road with less sunshine on the procurement process?
“Once we get into Finance and Public Works (committees), or even City Council, if we have to spend time in executive session to talk about RFPs, I think there will be more councilors with concerns about the process,” Councilor Rivera said in a phone interview on Thursday.
Rivera said he would like to look into options and possibly going back to the old way of handling RFPs.
“The city has tried hard to make sure we’re being as transparent as possible, and this, in my opinion, is a step back,” he said.
Councilor Mike Harris, also a member of the Finance Committee, seemed less concerned. He said to his recollection the procurement code reads about the same way now as it did 20 years ago.
Harris, who has a background in construction management, said he just wants to know what the rules are.
“We just need a clear understanding of the rules under which we are going to procure goods and services,” he said.
Councilor Lindell did not return phone messages from the Journal this week. But during Monday’s Finance Committee meeting, she said she had a problem with keeping information confidential until the bid is awarded. By then, it’s “too late,” she said.
She was also uncomfortable with the idea that councilors and committee members would be given a “confidential” packet with information pertaining to items on the agenda, but the public wouldn’t be provided with the same information. That’s not being transparent with the public, she said.
“I think that this is probably a topic that we need to take up between legal, procurement and the city manager, and probably the council needs to have a report on how to do this differently in the future,” she said.