After awarding more than $16 million in the past decade to consultants without going through competitive bidding, the city of Clearwater had finally corrected a gross misunderstanding of Florida law governing the process.
While that may be indeed admirable, another potential problem could be on the horizon, as small print in a recent Request for Qualifications for Clearwater consulting services could lead to big headaches for the city.
Florida law has allowed governments to hire professional services — such as architects and engineers — without competition, but only if total project construction costs are less than $2 million.
Last year, officials in Clearwater corrected a misinterpretation of the law had continued for more two decades. Previously, as the Tampa Bay Times noted, Clearwater city leaders believed that if design contracts met another requirement in the statute — an agreement for particular work that has a fixed end date — design companies chosen with no bids, even for construction projects over $2 million.
“We weren’t trying to do anything wrong,” Director of Engineering Michael Quillen told the Times. “It’s confusing language in the Florida statute.”
Citing a confusion in the language of the law, Attorney General Pam Bondi said, “an apparent ambiguity exists” for when governments can use a firm on a continuing contract. It all rested on the word “or.”
According to the law, governments can give contracts to a company when construction costs are under $2 million; if design fees are less than $200,000; or for specific work that has an end date.
The word “or” implies a choice, Bondi asserted. It led to governments “circumventing the selection process,” when the $2 million limit should apply in all cases.
Good catch, but that might not be all.
In the Florida Statutes, there is the Consultants’ Competitive Negotiation Act (CCNA), a law that applies to the procurement of certain professional services, such as architecture, engineering, landscape architecture and the like.
CCNA instructs agencies to use a multistep process to select professional services — more than a simple dollar figure — where the qualifications of those who will provide the service are as important (or more) than just the costs.
Among the factors to be reviewed in qualifying firms, the agency has to consider the capabilities, adequacy of personnel, past record, and experience.
In these cases, the lowest bid is not necessarily the best way to go. Assigning a dollar figure to intangibles like experience and qualifications works against the intent of the CCNA.
It is for that reason a Request for Qualifications (RFQ) from the City of Clearwater raises more than a few red flags.
On March 30, the city issued an RFQ for an engineering firm to offer consulting services for its Wastewater Collection System Master Plan.
The company selected would help update the Clearwater’s plans for the wastewater collection system, which currently includes approximately 8,287 manholes and 389 cleanouts; 1,951,179 feet (370 miles) of gravity sewers; 199,811 ft. (about 38 miles) of primary force lines and 73 pump stations. The system has three service areas associated with the city’s three water reclamation facilities.
The proposal format gives very detailed instructions for interested firms, on the format, experience, qualifications and technical expertise.
Buried on Page 16, however, are specific criteria:
— “Schedule to complete the Master Plan including estimated number of hours per task, by personnel/position.”
— “Project Methodology. Demonstrate project understanding and ability of proposed approach to meet the needs of the City. Provide a detailed work plan, including a tentative schedule to complete the Master Plan including estimated number of hours per task, by personnel/position.”
Each notation attempts to put a number on something subjective, which is forbidden by the CCNA — and Florida law.
Companies under consideration could manipulate such by-task estimates, handing the city a shortcut in the bidding process by enumerating what is not supposed to be quantifiable.
All it takes is for the Clearwater screening committee to use that number, which is only an estimate and can be lowballed, to give an unfair advantage to the “lowest” bidder.
That was exactly what lawmakers sought to prevent when passing the CCNA in 1984, to keep from throwing good taxpayer money after bad when a winning bid turns out to have unreliable qualifications or expectations.
It should be noted the criteria with theses phrases appear in a single Clearwater RFQ (so far), and it only pertains to a section of the request worth 20 points out of a possible 100. But even a slight, intentional change in that number could prove just enough to tip the scales for one company over another.
And for Clearwater, after 20 years circumventing the legally required competitive bidding process for certain city projects, the devil is truly in the details.