County commissioners cautioned about potential negative ramifications of having one of them serve on committees that evaluate bid proposals

Commissioners Moran, Maio and Ziegler voice support for ensuring taxpayers represented in those discussions by inclusion of elected official

Chair Michael Moran. Filer image

Sarasota County Commission Chair Michael Moran has suggested that a member of the commission sit on the Professional Services Review Committee (PSRC) — the body of county employees that evaluates bids and then ranks companies that submit proposals for county projects.

His Sept. 9 proposal prompted caution from both County Administrator Jonathan Lewis and County Attorney Frederick “Rick” Elbrecht.

Yet, Moran said, “When we’re having these massive procurements” — projects that will cost millions or tens of millions of dollars — “[What] I’ve advocated for in the past is that a taxpayer representative be in that room. This is taxpayer money,” he added.

Even though each PSRC is supposed to comprise qualified staff members who are “trying to do the right thing,” Moran continued, “There is an added level of having an elected official who reports to the taxpayer. … It puts healthy pressure in the room to make sure it’s being done property.”

The debate on that topic ensued after Commissioner Alan Maio pulled an item from the board’s Consent Agenda of routine business matters. It called for the commissioners to authorize an Oct. 7 public hearing on proposed changes to the county’s Procurement Code. That code covers the process through which the county advertises projects and companies bid on them, with the commission having final approval of contract awards.

Among the proposed revisions are sections clarifying ethical expectations of vendors and the process for applying local preference to bid awards, as well as a modification designed to streamline the method for awarding bids when competition is unavailable “or not in the County’s best interest.” The changes resulted from a year-long review of the code, Lewis noted.

On a motion by Maio, seconded by Commissioner Nancy Detert, the board voted unanimously to authorize the public hearing during the morning session of the Oct. 7 regular commission meeting. That will take place at the County Administration Center located at 1660 Ringling Blvd. in downtown Sarasota.

Additionally, the commissioners also ended up voting 4-1 to approve a motion by Maio to increase the county’s protest bond from $1,000 to $5,000. Maio said he believes the increase is needed so staff can recover more of the expenses it incurs in determining whether the notice of contract award to a bidder should have gone instead to the firm submitting the protest.

Since 2015, he added, referring to documents he had with him on the dais, 31 protests had been filed, but only two of them had proven valid.

Moran cast the “No” vote, but he offered no explanation for his decision.

‘We answer to the people’

Commissioner Alan Maio asks a question on Sept. 9. News Leader image

In the discussion about Professional Services Review Committee (PSRC) make-up, Moran acknowledged that he was focusing on procurement processes of a “high threshold.”

“I would agree with you entirely,” Maio responded, “except [County Administrator] Jonathan Lewis just had an aneurysm …”

“I read the formal Office of the County Attorney aneurysm on it,” Moran told Maio. “I still think, no disrespect, there’s an element of common sense to [this proposal]. We answer to the people … and we make sure that it’s being done property, with a different set of eyes. …”

“I just wanted to make sure you had the memo,” Lewis told the board members.

“Oh, I’ve got the memo,” Moran replied.

The primary concern, Elbrecht explained, is the perception of a commissioner’s having “extraordinary influence” on the voting of the other PSRC members, because the commissioners direct the actions of staff, even if the Sarasota County Charter limits them to doing so through the county administrator.

The Aug. 6 memo Elbrecht sent the board members says, “If County Commissioners desire to serve on a solicitation evaluation committee, either the entire commission or a subset of three members could serve as the committee. Alternatively, if appropriate for the subject of the solicitation, a single Commissioner could serve on a committee where the other members were either other elected officials, or employees of those elected officials …”

Elbrecht added, “As the Sunshine law applies to committee members, the Commissioner(s) serving on the committee would not be able to directly or indirectly discuss the solicitation or contract with the County employee(s) committee member outside of a sunshine meeting, until the contract was approved or the committee was disbanded. [He was referring to the state’s open meetings and government records regulations.] This could create a situation where Commissioners are unable to have their questions answered, or where they cannot all receive the same information regarding the solicitation, where the answer or information would come from the employee who was a fellow evaluation committee member.”

Moreover, Elbrecht wrote, “Committee members must also feel free to make independent decisions in evaluating proposals. Vendors may view the Commissioner’s opinion as more important than [those] of the County employees serving on the committee, potentially harming the competitive process.”

During the Sept. 9 discussion, Commissioner Christian Ziegler asked whether Maio was volunteering to serve as the board representative on PSRCs for high-level bid awards. Maio told him, “I would love to be on that committee.”

Commissioner Charles Hines. File image

Commissioner Charles Hines pointed out that having a commissioner in the room during PSRC evaluations would be different than having a commissioner participate as a voting member of the PSRC. “Does [the former situation] make things better from a county attorney standpoint?” Hines asked.

And what would be the contract threshold for a commissioner to participate in the process, Hines continued. “A million [dollars]? Ten million? One hundred million?”

“Being in the room is almost as good, possibly better, than voting,” Maio responded.

Without a board member present, Maio continued, the commissioners would not know about the PSRC committee make-up until much later — when the commission was presented a contract for approval.

As for the threshold: Maio said, “Certainly, I think it has to be seven figures.”

County Attorney Elbrecht responded that just having a commissioner in the room — without that person’s being a voting member of the PRSC — still could be perceived as a matter of exerting influence.

Chair Moran emphasized his earlier point: “Some would argue that the taxpayer in the room should have influence — a lot of it — in that room.”

“The final vote really comes to us,” Commissioner Detert pointed out, “but we’re used to being ourselves. We don’t intimidate ourselves, but we possibly may intimidate others, and we are technically the boss of people you would be sitting in a room with. And I think,” she added, “understanding human nature, that would change [staff members’] behavior. … Let’s let staff be staff, and then the final judgment comes to us.”

Commissioner Hines responded that, while the PSRC recommendations do come to the commission for final approval, “What we don’t know is all the information, all the discussions,” that went on with the representatives of the companies that lost out on a given contract.

Maio then noted that the contract award that comes to the commission is the result of staff negotiations. If Procurement staff cannot successfully conclude discussions with the top-ranked firm, he pointed out, then staff turns to No. 2 on the list.

Procurement Official Jennifer Slusarz answers a board question on Sept. 9. News Leader image

Procurement Official Jennifer Slusarz confirmed that process. “We don’t begin negotiating price until after the award [has been posted],” she said.

Moreover, Maio continued, if the board is asked to approve a bid award, and, in reviewing the related PSRC member list, “I have heartburn over one of the people that voted on this because I don’t think [the person had the necessary expertise], this commission has a choice to accept [the recommendation] or throw the whole thing out.”
“That is correct,” Slusarz said.

Commissioner Ziegler told his colleagues, “I think we have an outstanding county administrator” who makes it known that he works for the taxpayers. “It’s very clear,” Ziegler continued, that staff works for Lewis. Therefore, Ziegler said, he was not sure how a commissioner serving on a PSRC would be perceived as exerting extra influence over how the members voted.

“At the end of the day,” Ziegler said, “I think taxpayers should have the ultimate influence on anything that goes on in this building …”

Past and present PRSC policy

Earlier, Maio talked about his frustrations with PRSCs, based on his experiences when he was a principal for many years with the Kimley-Horn consulting firm in Sarasota.

“I’ve always been a little disenchanted about the composition of the PSRC,” Maio told Procurement Official Slusarz, who has held her position since May 2019. (She has been a county employee since September 1999, Media Relations Officer Drew Winchester told The Sarasota News Leader.)

However, Maio continued, Slusarz had told him in a one-on-one meeting, “emphatically, that some of the things that bothered me in the past probably don’t happen [these days].”

In previous years, Maio explained, if a department director or manager who was supposed to sit on a PSRC “suddenly got pulled to something else, then a substitute was put in, usually a lower-level employee … sometimes without the proper experience.”

Addressing Slusarz, he continued, “You told me that you’ve straightened a lot of that out. … There are no substitutions.”

“That’s correct,” she replied.

This is a section of the county Procurement Code regarding PSRC make-up and members’ responsibilities, as stated in the April 2017 version of that document. ‘RPS’ stands for Request for Professional Services. Image courtesy Sarasota County

Nonetheless, Maio said, “I’m concerned, [because] we have some nine-figure … [Requests for Proposals] that are gong to go out very, very shortly,” regarding upcoming Public Utilities Department projects. “Is it beyond reason,” he asked Slusarz, “that we limit the representatives on the PRSC” to administrators, directors, managers and “somebody who is highly, technically competent in the field that we’re going to be issuing a contract on?”

Under the current process, Slusarz explained, the department overseeing a project submits its recommendations for the makeup of the PSRC that will handle the evaluations of the bids. Then, as Procurement Official, she or her designee in Procurement signs off on the members of that group, she told Maio. “Typically, those committees include managers, engineers, an architect, sometimes financial staff. I don’t know that they are administrative or higher-level management.”

However, she added, “For the larger projects, we do look at that more closely.” Just the previous day, Slusarz said, she signed off on an evaluation committee for a large project. Everyone in the group, she noted, would be a higher-level manager.

Still, she conceded, “That is not the same for every project …” The Procurement Department manual, she continued, does not require senior personnel serve on a PSRC.

Prefacing his response with, “This is not to be mean,” Maio asked how would he be expected to feel if a person hired by the county just one month earlier — even if the person had “impeccable credentials” — ended up with one of the five PSRC votes on a nine-figure contract?

“I don’t believe that’s happening now,” Slusarz told him. Yet, she added, “I’m not sure how I can give you that comfort level,” other than to say that her staff does look at the PSRC make-up “very carefully.”

She indicated that the commissioners could modify the Procurement regulations to include restrictions about who can serve on the committees.

Later, County Administrator Lewis said that if the commission wanted to go ahead and vote to hold to hold the public hearing on the proposed revisions to the Procurement Code, staff could work on further updates — as indicated by the morning discussion — and make them available for the board’s consideration at another time.

“Fair enough,” Moran said.

Ziegler concurred.

The bond issue

During the discussion about the protest bond, Maio pointed out that a company gets its money back only if it prevails.

“The protest bond is used as a deterrent to recover some of the administrative costs associated with responding to the protest,” Procurement Official Slusarz replied. “I do believe that the $1,000 covers some of those costs. We have not tracked the hours that we spend responding to a protest, so I don’t know the exact dollar figure.”

Commissioner Nancy Detert. File image

Commissioner Detert asked Maio about a potential scenario in which representatives of a firm with a higher bid wanted to protest an award so they would have the opportunity to explain concerns that the company recommended for the contract would not be able to perform the work satisfactorily for the price.

Maio told her he wanted to reverse the scenario: A small firm that might be incapable of handling a project nonetheless could protest the recommendation of a contract award and hold up the project.

Prior to 2015, he said, when changes in the procurement process went into effect, the county had some “frequent flyers” who were known for protests, “just to protest.” The $1,000 bond, he added, was not high enough to prevent such actions.

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