Friday, October 14, 2005

Agency - Contractor Collusion? Say It Isn't True!

But there is a good chance that there might be. Careful reading of a recent Invitation for Bids from a specific Public Transit Agency included these words:

"If the Authority determines that the apparent successful Contractor has failed to meet the foregoing requirements, before awarding the Contract the Authority will provide the Contractor and opportunity for administrative reconsideration. As part of this reconsideration, the Contractor will have the opportunity to provide written documentation or arguement concerning the issue of whether it met the goal or made adequate good faith efforts to do so.

The Authority's decision on reconsideration will be made by a DBE Administrative Hearing Officer. The Contractor will be given the opportunity to meet in person with the Authority's reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. The Authority will send the Contractor a written decision on reconsideration, explaining the basis for finding that the Contractor did or did not meet the goal or make adequate good faith efforts to do so. The result of this reconsideration process is not administratively appealable to DOT."

If that isn't negotiations that define collusion, I don't know what is. This provision for apparent renegotiation of a Bid with the "apparent successful Contractor" has been interpreted by several with whom I have spoken as clear collusion. This is because that there is ample opportunity for something new to be included in such a "meeting" after a Bid Opening. New agreements, new efforts, new weasel words could all be brought forward by the "apparent successful Contractor".

You may have noticed that this provision deals with DBE requirements. Generally, these goals or requirements are pretty cut and dried. Either a bid meets the goals or it doesn't. If it doesn't, the bid should be rejected. No "reconsideration" should be given to the unsuccessful bidder. Move on to the next bidder, easy as that.

Does the Federal Transit Administration know about this? I don't know. But I do think that something like this is at least as important as the depth of boilerplate that becomes part of any Contract funded by the FTA. The FTA Staff is supposedly there to take care of this sort of thing. I hope that the FTA will do so without an expensive test case filed on behalf of a legitiment Contractor who doesn't get the chance for "reconsideration" by this or any other Agency.


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