On Friday, the Rio Nuevo Multipurpose Facilities District’s Contract Officer, Michele Bettini, and attoneys released a statement of rejection to the Peach Properties protest for RFP violations with a chronology.
On May 27, 2014 the RFP solicited proposals for the potential sale and development of the property generally known as the “Arena Site” an 8.4 acre vacant lot where the current Greyhound Bus terminal is now located. That RFP produced two $100+ million bidders.
The two bidders that responded by the deadline, June 30, 2014: Peach Properties (Peach) and Nor-Generations (Nor-Gen).
Each Rio Nuevo Committee Member completed their respective initial Score Sheets, signed their respective Member Statements and returned both to the RFP Administrator on July 15, 2014. At the initial score Peach received 5115 and Nor-Gen and initial score of 5290 with one Committee member scoring a perfect score to Nor-Gen at that time.
On July 15, 2014 the Board voted to interview both bidders and produce a final score by combining the initial score with an interview score. The interview was held during a Special Meeting on August 12, 2014. In summary, shortly after this interview meeting, Peach received a final score of 8575 and Nor-Gen was 9545, again with one member giving a perfect score to Nor-Gen. Despite a request from another Board Member and the members of the public at that meeting to consider cancellation to this RFP and start over, the Board voted to proceed without any discussion to cancel.
Peach Properties then filed a timely protest per the Rio Nuevo Procurement Code Section 28 to the Rio Nuevo District Board, over improprieties by Committee member, Alberto Moore, connected to the RFP.
The protest arose out of the August 12th special meeting when Alberto Moore violated Rio Nuevo’s own Rules and Procurement Code that maintain Committee members, under written oath, would “guard against any tendency that might slant evaluation in favor of a personal preference”.
The RFP was to guard against undue influence, and to this end, counsel instructed Committee members to have no communication or contact with anyone, including the media and/or other Committee members that could potentially influence their scoring.
The protest alleges that Moore violated all these rules.
After the proposer had presented, Moore spoke out strongly in favor of the Nor-Gen proposal and introduced parameters that were inconsistent with those of the RFP, items which he termed were “four key challenges”.
The net effect was to encourage other Committee members to score the proposals using criteria that was not part of the stated RFP and rather to slant their opinion.
The protest goes on to say, “That Mr. Moore was influenced by outside forces and/or considered factors not in the RFP is apparent in his grossly disproportionate scoring of the two proposals.” As was also documented in the Rio Nuevo meeting minutes of August 26, 2014 when the right to negotiate with Rio Nuevo was awarded to Nor-Gen.
Peach then goes on to request a remedy consistent with the procurement code, that is, to either a) disregard the votes of Mr. Moore all together which would have given Peach Properties the higher score; or b) cancel the award to Nor-Gen and re-issue the RFP, this time following their own rules and procurement code.
Nor-Gen’s response does not refute the claim that the original RFP did not include these criteria. Instead, it cited comments referring to those concepts during the RFP response interview presentation made by Peach Properties CEO Ron Schwabe and his project architect.
The Contract Officer states in order for the protest to be successful, it must establish fraud or bad faith and RFP violations are insufficient. From the written statement, “Moore’s truncated endorsement of Nor-Gen’s proposal can hardly be said to have influenced the scoring.” The statement goes continues, “Reasonable minds may differ on Board Member Moore’s decision to give Nor-Gen a perfect score of 1,000 while only awarding Peach 70 points after the interviews. This disparity of 930 points is significantly larger than the range of scores by the other Board Members… while an extreme scoring decision…Board Member Moore may be merely reflective of his strong view….or that Board Member Moore viewed the scoring as more akin to a “vote” (an either/or proposition)…either way, without more evidence of bad faith, fraud, or personal/financial gain by Board Member Moore, this numerical disparity is insufficient to overcome the presumption that Board Member Moore acted in good faith.”
Peach can file an appeal of the Contract Officer’s decision within seven (7) days from Friday and maintains full rights to legal recourse. Peach does still have an open lawsuit against the City of Tucson on this same property after it was awarded the bid to purchase from the City, unfortunately the City didn’t actually have rights to sell it.