The Cranky Taxpayer
On Dec. 2, 2008, RPS issued a replacement for the Sept. 26 Request for Proposals (RFP) for design work for the Fox elevator project. You may recall that the scope of work in the original RFP was copied from an earlier, unlawfully obtained proposal from Ballou Justice Upton (BJU) and that RPS awarded the contract to BJU at the price in BJU'e pre-RFP proposal.
The new RFP is designed to invite at least two lawsuits and to evoke the disdain of all friends of the English language:
I. Incorporation of an Offeror's Pre-RFP Designs
At Va. Code § 2.2-4301 (definition of "Competitive Negotiation") the Procurement Act prescribes an RFP
indicating in general terms that which is sought to be procured, specifying the factors that will be used in evaluating the proposal and containing or incorporating by reference the other applicable contractual terms and conditions, including any unique capabilities or qualifications that will be required of the contractor.
The same statute provides that a public body procuring professional services
The statute continues:
In light of this, one might think the new RFP would simply request design of an ADA compliant entrance, stairwell, and elevator with an appearance consistent with the existing building. One would be wrong.
The new RFP describes the project thus:
This project includes an independent, 3-story masonry baring wall and steel framed addition to the existing historic school. The 4050 + SF three story addition will house a new building entrance, stairwell, and elevator.
That is exactly the description that was in the original BJU proposal and in the unlawful, first RFP.
Further, the RFP includes a sketch of the project as Exhibit I. This sketch came from a study of design alternatives by BJU in January, 2005.
This new RFP hardly leaves room for the discussion of alternatives required by the Act. Instead, RPS again has used a sketch from a prospective offeror and again has described the project narrowly, not conceputally, and in exactly the same terms as the (unlawfully obtained) September 23 proposal from that same prospective offeror. If BJU again gets the contract, any lawyer smart enough to breathe without instructions should be able to get that contract invalidated as a put-up job.
II. Homebrew, Unconstitutional, Unlawful Minority Preference
Section 3.27 of the School Board's Bylaws and Policies sets an "official" goal of 50% minority employment by all construction firms contracting with RPS. The "Prequalification" section of the policy appears to broaden "construction firms" to include providers of services, as in the Fox elevator case. Section 3.27 is based on a July, 1991 study of the availability and utilization of minority business enterprises in Richmond. The School Board first adopted the 50% policy in 1997; it adopted the current version on June 2, 2003. The policy expired on June 2, 2005.
The Fox elevator RFP says 20% of the evaluation of the proposals will be based on Minority Business Participation.
As I discussed earlier (pdf), this minority preference is a suspect racial classification that is subject to strict judicial scrutiny. Richmond v. Croson, 488 U.S. 469 (1989). This means, in short, that RPS must be able to prove that the preference is narrowly tailored to remedy past discrimination by RPS.
Croson invalided a 30% minority goal. The RPS goal appears to be 50%, although the policy in question expired over three years ago. The policy is based on a 1991 study; according to Section 3.26 of the Bylaws, that study concluded that "minority-owned business enterprises have not enjoyed full and equal opportunity to participate in one or more procurement areas." The Board's Bylaws and Policies do not refer to anything more recent. In particular, there is no indication of a current study. Further, there is no indication that the School Board has any information to show that a less intrusive approach would not serve to abate any discrimination that has survived the lapse of seventeen years, the last eleven under full application of the minority preference.
Unless RPS has something more than this stale and incomplete justification, the minority preference is an invitation to a federal lawsuit. The legal community welcomes this kind of invitation because RPS gets to pay the plaintiffs' lawyers (just as it paid my lawyer) if RPS loses.
All public bodies shall establish programs consistent with this chapter to facilitate the participation of small businesses and businesses owned by women, minorities, and service disabled veterans in procurement transactions. The programs established shall be in writing and shall comply with the provisions of any enhancement or remedial measures authorized by the Governor pursuant to subsection C or, where applicable, by the chief executive of a local governing body pursuant to § 15.2-965.1, and shall include specific plans to achieve any goals established therein.
So, of course, I asked RPS for "the document required by Va. Code § 2.2-4310.B establishing the School Board's program to facilitate the participation of small businesses and businesses owned by women, minorities, and service disabled veterans in procurement transactions." They responded with a copy of 3.26 of the Board's Bylaws and Policies:
3.26 Minority-Owned Business Utilization
In short, the Procurement Act requires a written program for facilitating participation of small businesses and businesses owned by women, minorities, and service disabled veterans in procurement transactions. Richmond has a bald racial preference (that probably is unconstitutional), but no plan as to small businesses or businesses owned by women or service disabled veterans.
Your tax dollars at "work."
III. General Sloppiness
It is instructive to compare the selection criteria in the State's model RFP for architectural and engineering services with those in the Fox elevator document:
Please decide for yourself which is clearer, more professional, and more consistent with the Procurement Act's requirement that the emphasis in the selection be upon professional competence. In the process you might note
You get to decide for yourself which organization you would rather have spending your tax money.
Note added on 12/10: Jonathan Mallard takes a look at the RFP from another angle.