Editorial Investigation:

The Examiner’s investigation of thousands of documents secured from the U.S. Department of Treasury and Jefferson County, and a review of recordings of Commissioners Court proceedings, has revealed multiple violations of state and federal purchasing laws by the Jefferson County Purchasing Department. Also, in at least one instance, what was found appears to be, at best, lackluster oversight and, at worst, illegal actions.

The most egregious violation noted from the documents is that of the Dec. 8, 2021, multi-million-dollar contract awarded by Commissioners Court to administer $48.9 million of American Recovery Plan Act (ARPA) funding to the highest bidder, Tidal Basin, a consulting company based in Utica, New York.

Jefferson County Purchasing Agent Deborah Clark requested approval of RFP (Request for Proposal) 21-050, the ARPA grant administration proposal, on Aug. 3, 2021, in a meeting of Commissioners Court. RFP 21-050 lays out exact requirements for companies to submit a proposal to administer the grant awarded to Jefferson County by the federal government, meant to assist with recovery costs associated with COVID-19. The court voted 5-0 to approve the RFP, which then gave authority for Clark to advertise to seek proposals from companies to administer the grant on behalf of Jefferson County.

What happened next, according to documents reviewed and responses from Clark to The Examiner’s inquiries, was the complete disregard for Section 1.41, the “Schedule of Events” spelled out on page 14 of the 50-page RFP. While it is clear from the illustration below, which was a part of the official RFP, that the dates and times of Section 1.41 are tentative, nowhere in the document does it state that the “events” listed were also to be considered tentative.

While the purchasing agent followed the schedule and events called for in the RFP for “Issuance of Request for Proposal” and “Deadline Submission,” the event of “Proposals Distributed to Evaluation Committee” was delayed until Sept. 1, 2021. Changing the dates is allowed by the terms of the RFP approved by Commissioners Court; what was not approved is what appears to be a total disregard for what was scheduled for Sept. 7 and Sept. 10.

RFP 21-050 specifically called for the Evaluation Committee to convene to tabulate scoring and determine a short list, then to “Conduct Interview/Best and Final Offer/Short List.” When questioned by email about the dates the committee convened to perform these functions, Clark replied “None” to both questions.

Following an in-person interview between The Examiner and County Judge Jeff Branick, the elected county head sent an email to Purchasing Agent Clark seeking clarification to certain questions on March 15.

The county judge queried. “Why does the scheduling order call for a meeting of the committee if there is not going to be a meeting of the committee?”

Clark responded the following day: “To clarify, the scheduling order does not call for a committee meeting, it introduces the possibility of a committee meeting by the inclusion of the word ‘tentative’ which by definition is uncertain or provisional. The evaluation committee is provided a letter of instruction regarding scoring which delineates the importance of Independent Evaluation by each of the selected committee members. The evaluation process affords the committee an opportunity to meet but does not require them to do so.”

While the definition of the term “tentative” was never in question, Clark’s judgement is. Her comments are clearly inconsistent with requirements further detailed in the RFP approved by Commissioners Court, which states: “Upon completion of their review and any oral presentations, the Evaluation Committee will convene one or more times to discuss the proposals as a group.”

As can be seen in black and white, the word “will” is used here, with no reference to the word “tentative.” According to Merriam-Webster, “will” may be used to indicate something is going to happen in the future or, more applicable to this case, it can mean “command,” which is also a synonym of “require/requirement.”

Branick also posed questions to Clark seeking to learn what evaluation files were provided to committee members, and whether judging was based on more than just the submitted proposals.

“The evaluation files include a non-disclosure statement, an evaluation committee letter which includes specific instructions for evaluating and scoring each proposal in accordance with Statutory Procurement Standards, a copy of the original request for proposals, any addendums issued prior to the due date, a copy of each of the received proposals, and a scoring matrix including criteria assigned in the original request for proposals,” Clark detailed.

Yet the Evaluation Committee Briefing letter sent by Clark on Sept. 1, 2021, the same day the proposals were forwarded to the scoring committee, used the purchasing director’s own “specific instructions” that stated: “Each member of the Committee must support his/her reasoning for decisions and scoring with appropriate documentation or notes. Any such documentation or notes must be made on a separate work sheet for each offeror. Worksheets and evaluators’ notes will be taken up and become a part of the file. Such notes are subject to the Public Information Act, even if the notes are in the possession of the evaluator. Proposals are not to be duplicated and must remain on County property and returned to Purchasing at the end of committee meetings. Do not write in the proposals or on the final score sheets, which when turned in become part of the procurement file.”

In a request under the Texas Open Records Act for the Evaluation Committee’s scoring files, however, County Attorney Kathleen Kennedy responded that, “The Purchasing Agent has informed me that there were no documents.”

While the documentation requirement specified by the letter may only be numbered item 8 of an 11-item letter of instruction, it is an important missing component in the evaluation process because of the extreme differences in scoring of each company by each evaluator on the committee.

County Engineer Michelle Falgout’s scoring stood out, giving Tidal Basin a total score of 69 while scoring Traylor and Associates of Tyler a 96, giving this high score to a company she had worked with several times as a consultant in Orange County prior to her employment in Jefferson County. Falgout scored all other nine firms bidding for the contract a low of 67 to a high of 72.

While Tidal Basin was the winning bidder, even with the highest price, it was scored dramatically differently by the evaluators. County Tax Assessor/Collector Allison Getz scored Tidal Basin a perfect 100, while scoring other bidders between 55 and 90. Scoring just 13 points behind the winner and placing second overall, County Auditor Patrick Swain scored Grant Works of Austin a 96, while giving other bidders a low of 76 and scoring winning bidder Tidal Basin an 86. County Investigator James Arceneaux scored Tidal Basin 91 with a range of scores for firms competing of 81 to 99.

Commissioner Michael “Shane” Sinegal scored Tidal Basin 92 with others ranging from a low of 81 to a high of 99.

Of the 10 companies that submitted bids, one was from Jefferson County, three from Houston, two from Austin, one from Tyler, one from Shreveport, one from North Carolina, and the winning bidder was listed on the bidding documents as Florida with a corporate office in New York.

While County Engineer Falgout made an extra note to Clark in an email dated Sept. 20 stating that only Tetra Tech and Traylor were “responsive in regards to the cost estimate,” Falgout only rated Tetra an 8 out of 15 possible points available for “responsiveness” in her evaluation, while giving Traylor a perfect 15 with the belief that the RFP asks for a total cost. The RFP actually does ask for costs, but defined by example that hourly rates were acceptable. All 10 firms submitting proposals provided hourly rates.

Since The Examiner first began requesting documents, emails and text messages between county employees, elected officials, Evaluation Committee members and vendors, a number of policy changes have been made regarding purchasing procedures, according to county officials. Still, in this case, the damage is done, and the company with the highest hourly rate – and offices headquartered in New York – has been awarded a multi-million-dollar contract when 7 of the 10 qualified local, regional and Texas-based companies were not.

The Examiner will continue to monitor the situation.