Tuesday, March 5, 2013

In-Depth: Brevard's Garbage Collection Contract Award

BCAO Response: What about the part of the recording where it sounds like County staff are advising Waste Management?

 


The staff negotiating team did not solicit or direct community contributions from the vendor, did not make any contractual promises or price concessions based on the vendor’s community commitment, and the County Attorney’s Office did not represent the vendor’s interest.
 

On February 16, 2012, Matt Nye, an aide for Commissioner Trudie Infantini, sent a mass email suggesting staff improprieties in the negotiation of a waste collection contract between Brevard County and Waste Management:



"A two minute segment of a recorded February 1st negotiation between Brevard County and incumbent solid waste vendor Waste Management reveals what sounds like a pay to play scheme.

During the 55 minute session, County Manager Howard Tipton and County Attorneys Morris Richardson and Christine Lepore are heard advising Waste Management Executive George Geletko as to what he should do to fulfill the "be a good community partner" directive of the Janaury [sic] 8th commission vote.  County Manager Howard Tipton is heard explaining the county would like $50,000 to go into a fund that could be used for "incentive dollars" to supplement money given by the state.

The County Commission is scheduled to take a final vote on the contract at this Tuesday's meeting. Please be sure to contact your Commissioner and tell them how you feel about this type of "negotiating" and whether or not $65K to the boards’ pet projects is worth the tens of millions extra we taxpayers will pay for the higher cost Waste Management deal."




These charges focused exclusively on a brief excerpt with no context, and ignored the entirety of the surrounding negotiations (several days and many hours) and the relevant documents. The inarguable fact is that the negotiating team never negotiated the amount or the beneficiaries of the Waste Management community commitments – not a single penny was asked for or received in negotiations.


During a negotiation session, Waste Management presented a power point in which one slide identified the exact same community contributions already included in Waste Management’s proposal (Waste Management Proposal at p. 28). In the circulated audio excerpt, County Manager Tipton is heard responding to a question from Director Rodriguez. Mr. Rodriguez inquired about the difference between these two commitments displayed on the power point:


• $50,000 annually to the Board of County Commissioners in support of economic
development in the County
• $15,000 annually to the Economic Development Commission



Mr. Tipton’s response simply explained his understanding of these commitments based on his recollection of Waste Management’s proposal and discussion from the January 9, 2013 County Commission meeting. Mr. Tipton did not solicit any funding or direct Waste Management as to where “the county would like [the money] to go….”


Further, neither I nor Christine Lepore directed Waste Management how to fulfill the Board of County Commissioners “good community partner” directive. Rather, we were ourselves attempting to follow that direction by memorializing Waste Management’s commitments. We clearly explained that the community partnership representations were not consideration points of the contract. The audio excerpt actually includes me drafting potential contract language aloud which would reflect Waste Management’s proposal representations merely as prefatory “whereas” clauses. Ms. Lepore explained that the community commitments are best left vague to avoid even the appearance of any impropriety in the negotiating process.


The email further charged that “this type of ‘negotiating’ [the excerpted discussion regarding the community commitments]” resulted in “tens of millions extra we taxpayers will pay….” 


Significantly, however, the excerpted discussion about community commitments took place only after Waste Management conceded to meeting the committee’s last price demand. The price had already been settled, and not a penny was asked or given for Waste Management’s pre‐existing, voluntary commitments. There is absolutely no basis for the charge that County staff engaged in some form of “pay for play” in the negotiations. 



Moreover, the statement that the contract will cost “tens of millions extra” because of the community commitments simply does not add up. That charge seems to assume that Waste Management was awarded the contract at its initial proposal price. If that were the case, then the contract would have cost $17,552,052 more over the initial 7‐year term than the same proposal from Waste Pro. However, because of the efforts of the negotiating team, that cost difference was driven down to a maximum potential difference of $1,480,390 over 7‐years. The actual difference will almost certainly be less than that, and there may not be any difference at all if the CPI performs at the same rate it has over the recent history of the existing contract.


On February 20, 2013, Mr. Nye contacted me to request public records relevant to this issue. I provided him with the competing vendor proposals, Waste Management’s negotiation power point presentation, a spreadsheet depicting the actual negotiated contract amount and comparing it to Waste Pro’s proposal, and various other requested documents. To his credit, Mr. Nye reviewed the records, listened to the audio, and sent me the following in an email dated February 28, 2013:


"Weekend before last I sent an audio clip of what sounded like County Manager Howard Tipton and County Attorneys Morris Richardson and Christine Lepore telling Waste Management Executive George Geletko where Waste Management should donate as part of the negotiations on the Solid Waste Disposal RFP.

The conversation on the tape made it sound as though County Staff was strongarming Waste Management, and the awkward commentary by the attorneys had me convinced I had a “smoking gun” recording. To my chagrin, I have since learned that county staff was simply clarifying what Waste Management had included in its RFP response, and unbeknownst to me, were actually referencing a PowerPoint presentation provided by Waste Management during those recorded negotiations.

Former Palm Bay City Councilman and former Waste Management employee Milo Zonka was quick to point out that he personally authored the Waste Management RFP response, and those commitments were in the response all along. And so they were. I deeply regret that I did not have all the facts, and I assure you my message regarding the pending RFP vote would have been worded differently if I had. I have personally apologized to Mr. Richardson, and have attempted to contact Ms. Lepore and Mr. Tipton to do the same. There is no doubt in my mind staff was simply following the direction given them by the board at the January 8th meeting."



Mr. Nye has expressed his intention to circulate this retraction to everyone who received his original email.


Unfortunately, a number of citizens repeated the erroneous charges at the County Commission meeting on February 19, 2013. At that meeting, at least one citizen also charged that the County Attorney’s Office had represented the vendor’s interests in negotiations and was disloyal to the County. Specifically, the citizen claimed that I advised Waste Management how to hide a 3‐year renewal option from the Board of County Commissioners.


This charge was baffling. The RFP had always provided for an initial 7‐year term and a 3‐year option, and that term was included in each vendor response. In negotiations, staff and the vendor discussed drafting a contract provision that would allow the County Manager to administratively exercise the 3‐year option if the vendor’s performance met certain standards.


Staff never attempted to hide this contract provision from the County Commission. Even on the sound bite played at the meeting, I can clearly be heard stating that if the contract was going to have an administrative renewal provision based on performance metrics, then the Board should be so informed and specifically asked to delegate authority to the County Manager to exercise the option if the performance standards are met.


That advice was incorporated prominently in the staff Agenda report to the County Commission: “It is also requested that the Board authorize the County Manager to execute an extension of the contract if certain performance measurements are met by the Company.”

In the County Commission meeting on February 19, Mr. Tipton clearly explained that aspect of the recommended deal. He presented in detail the performance standards the vendor must meet in order for administrative exercise of the option. There was no effort to conceal this option from the County Commission or the public.

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