Friday, September 26, 2014

Told You So, Indianapolis Can't Deny Public Dislosure Of Criminal Justice Center RFP

Indiana's Public Access Counselor agrees with me that the City of Indianapolis' claim that it can deny public disclosure of the Request for Proposals ("RFP") that it issued to three groups of bidder vying for the right to construct a more than half billion dollar criminal justice center for the City through a public-private partnership agreement until the bidding process is completed and a winning proposal selected is specious. The IBJ's Kathleen McLaughlin made a public request for the RFP on July 22, 2014 to the City's Office of Corporation Counsel. Although the OCC acknowledged receipt of her request, it failed to respond to it. McLaughlin filed a complaint with the Public Access Counselor on August 19, 2014, to which she received an informal response on September 24.

Writing on behalf of the OCC, the City's public access counselor, Samantha DeWester, told Luke Britt, the state's Public Access Counselor, that it had not denied McLaughlin's request. "[H]owever, they will be doing so with a formal denial including a citation to why they feel it can be withheld," Britt added. "Based on their response, they will be asserting a discretionary privilege due to the RFP still being in negotiation, and a confidentiality provision as the RFP contains trade secrets."

Britt agreed that response-related documents produced by the competing vendors in response to the RFP could be withheld pursuant to state law until the negotiations are concluded. "RFPs are generally non-negotiated instruments," he added. "I am not necessarily compelled by the argument an RFP itself is under negotiation . . . After the bidding process is over, terms and conditions may change, but the public request for proposal would not be changed by negotiation of a final contract."

Britt also could not understand OCC's argument that the RFP could be shielded from disclosure because it contained "trade secrets" that are protected from disclosure under the state's access to public records law. This argument is premised on the OCC's contention that it contains architect's blueprints, plans and drawings. "If an RFP sent out into the marketplace does indeed contain trade secrets, it stands to reason the secret is out once it goes out to potential contractors." Britt adds that "secrecy is inherently compromised in an RFP."  If this RFP truly contains trade secrets, it would be a first in the United States. How an attorney could even make that argument with a straight face is beyond me.

DeWester's response letter to Britt repeated what was told to a City-County Council committee earlier this month that no final RFP document existed as it was still being negotiated even as the City has been in negotiations with the three bidding groups since last April. "[T]he RFP is still under negotiation," DeWester wrote. "Currently, the RFP has been amended and will continue to be amended while negotiations are still in progress." That of course is nothing but a sham argument intended to completely circumvent state law requirement that an RFP be made available publicly once it is issued by a governmental body. Sure, an RFP can be amended after initial discussions with potential offerors, which can easily be accomplished by making available to the public questions posed by offerors, the City's response thereto and any revisions to the initial RFP document made as result of those discussions, while still allowing the actual proposals of the offerors to be withheld from public disclosure until the negotiation process in concluded. Only by following those steps can the public and the competing vendors know that all were accorded fair and equal treatment during the bidding process.

Britt's letter at this point is not a formal opinion since the City of Indianapolis has not yet supplied a formal legal response to McLaughlin's request. By the time he gets around to it, the City will have already concluded its discussions and selected the winning bidder, which it plans to have done in November. Here's a word to two of the bidding groups. I don't know how much time and money you have committed to this proposal, but you should know that the City already knew in advance to whom this project was going to be awarded. This is a sham process being conducted in the dark to give the other two bidding groups and the public the impression a competitive bidding process is being conducted when nothing could be further from the truth. You are dealing with one of the most corrupt cities in all of America. This project is being undertaken to line the pockets of a handful of political insiders regardless of how much damage is inflicted on the public or how great the costs are to the taxpayers of this city.

As I previously pointed out, the Hoosier State Press Association with the strong backing of the Indianapolis Star was responsible for the law that is currently on the books requiring public disclosure of RFPs undertaken for a build, operate and maintain project through a public-private partnership to prevent important public projects from being undertaken in secrecy. The Indianapolis Star under the ownership of Gannett could care less about transparency in this process. It has already bought into the idea that a public-private partnership is the preferred route despite the fact that it will cost taxpayers much more in the long run than a project built, operated and maintained by the City-County government. If the Ballard administration decides it can thumb its nose at provisions of the law intended to provide transparency to the process, the Star could care less, along with most of the other media in this town.


Anonymous said...

Gary, THANK YOU for remaining keen and hot on this issue.

The proposed new Criminal Justice Center simply does not make sense as proposed. Moronic Mayor Ballard et al. alleging (to use Advance Indiana words) "that essentially a private developer can deliver a brand new, state-of-the-art criminal justice center for not a penny more than the $122 million the administration claims we are currently spending annually to support existing facilities" is truly beyond human belief.

DeWester's "reasoning" as to why the City can keep secret what should be public is typical of what I personally experienced up close and personal in the machinations of the Brooks-DeWester Center Township Regime.

Ms. DeWester, currently the ostensible Center Township Chair and the former Center Township Vice Chair under her long-time friend and mentor Hamilton County political apparatchik David Brooks, will probably do all she can to keep the keys to this "criminal justice center" secret.

This is how the establishment Marion County GOP works.

It is no wonder grass roots Conservatives have fled the Marion County GOP in droves. With "leadership" like this, who needs enemies? As Pogo remarked, "We have seen the enemy and they are us."

I hunger for the day when real justice is served to the Marion County taxpayers who are the paycheck for the special interests.

Anonymous said...

If I remember correctly the Indiana Public Access law has no enforcement ability, i.e. even if you are found at fault the Puclic Access does have any authority to penalize you.

So the city can play semantics with informal / formal requests and stall until the bid becomes a fait accompli. At that time whether or not we see the rfp is moot and the city can continue upon it's merry way doing anything they want without anyone or anything to impede their quest to fleece Indy taxpayers.

Anonymous said...

Spot on, Mr. Welsh. There's no excuse for not making public the RFP, unless the playing field for those "competing" for the contract is not actually level. This process could not be less transparent and as you've eluded the purpose can only be that this project will get rammed down our throats once everything has already been decided behind the scenes. This is how big public projects in Indy get done.
Calling architectural and engineering plans "trade secrets" during the bidding process is absolute BS. All proposers should be provided the same information. The only way these entities know that is if the documents are made public. If I tried procuring a project this way I'd expect to be fired. And if I was one of the losing entities I would protest immediately and file suit.
The way this is being procured - "P3" - is for lazy government. Seriously, line up your own financing, figure out what the hell it is you want, get it designed and bid out construction. Know what happens when you pay a contractor to figure it all out for you? You get financially raped and the product you get is the cheapest crap money can buy.

Flogger said...

You might be tempted to think that with all the secrecy surrounding this new Criminal Justice Center we were constructing a Secret Underground HQ for the Strategic Air Command.

The Star as usual is silent in demanding details for the citizens. Bottom line The Star does not serve as a stage for a vigorous debate. There is no debate, the only side presented is the one that best serves Crony-Capitalism.

The City County Council also is mute. No one appears to be interested in forcing the issue of transparency.

Anonymous said...

Have the documents for the ROC been given over as the Judge ordered months ago?

Gary R. Welsh said...

They haven't posted them on the council's website if they've been furnished.