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
See Waste Management Negotiation Power Point at p. 2.
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.
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.
CONTINUED ON
