Memorandum Date: July 11, 2011 To: Karen Rushing Mark Simmons Clerk of the Circuit Court Sarasota County, FL From: Cathy Antunes Pat Rounds Sarasota Citizens for Responsible Government Thank you for meeting with us on Friday, June 17, 2011. We appreciate the opportunity to discuss our concerns and look forward to future discussions about improving our government. As you know, our meeting was focused on the Clerk’s July 2010 limited scope audit of procurement processes associated with the hiring of a Stadium Negotiations Facilitator in 2008 (RFQ/PO 840824), and an Owner’s Representative in 2009 (RFP 09851). The purpose of this letter is to summarize some of the concerns shared, highlight additional issues, and suggest further action to address the concerns raised. Omission of Key Procurement Terms As discussed in our meeting, Sarasota County Procurement Code and Manual do not include a definition of competitive bidding—neither does the 2010 audit, although numerous terms and definitions are included in the audit’s appendices. Below is a definition of competitive bidding (Source: www.usac.org): “The competitive bidding process must be fair and open. “Fair” means that all bidders are treated the same and that no bidder has advance knowledge of the project information. "Open" means there are no secrets in the process – such as information shared with one bidder but not with others – and that all bidders know what is required of them.... In order to be sure that a fair and open competition is achieved, any marketing discussions held with service providers must be neutral, so as not to taint the competitive bidding process. That is, the applicant should not have a relationship with a service provider prior to the competitive bidding that would unfairly influence the outcome of a competition or would furnish the service provider with "inside" information or allow it to unfairly compete in any way. For example, a conflict of interest exists when the applicant's consultant is associated with a service provider that is selected and is involved in determining the services sought by the applicant and the selection of the applicant's service provider(s).” Regarding this audit, in the Owner’s Representative RFP (09851), Sarasota County is the applicant, Dan Barrett (Barrett Sports Group, BSG) is the applicant's consultant, and International Facilities Group (IFG) is the service provider. Details will be provided later in this document demonstrating how county employees and others violated or circumvented this definition of competitive bidding, Section 6.8.6 of the County Procurement Manual, and Sect. 18 of the RFP for Owner’s Representative. The scope of the July 2010 audit appears to have been determined by County Administration. The Clerk is a constitutional officer, independent of the County Administration and County Commission. Troubling findings were not fully explored in the 2010 audit; a reason given by the Clerk's office is the audit's was “limited scope”. The Clerk has both the authority and responsibility to fully explore problematic procurement practices, something that the July 2010 audit does not appear to accomplish. However, on April 22, 2010, after the 2008/2009 bidding irregularities were printed in the local media, Jim Ley, County Administrator, sent an e-mail to the County Commission, copying the County Clerk that he was issuing a request for the Clerk to audit these identified questionable procurement activities. In his message Ley comments, “I have made it clear that aside from the interviews they might undertake, they are doing this work solely for me and are to report their results directly to me.” It appears the Clerk's Office was not acting independently of County Administration, but rather was taking direction from them. 2008 Stadium Negotiator RFQ irregularities are not adequately addressed by Clerk’s audit. During the 2008 RFQ, County and City employees discovered that an application submitted by Dan Barrett (Barrett Sports Group) exactly matched the “scope of work” documents being used by the City and County to evaluate vendor submissions. At least one employee expressed concern about the “matching” documents. When an employee expressed concern about the impact on public perception of the process, the Deputy County Administration was noted to reply, “You worry too much.” Despite apparent compromise of the RFQ process, Mr. Barrett was ultimately chosen as negotiator. In the audit, the “matching” scope of work documents initially used by the joint City/County RFQ committee, were incorrectly attributed to International Facilities Group/IFG (See Audit, Sect. A, p. 14). Actually, Dan Barrett sent them via e-Mail to county employee Larry Arnold on August 27, 2008. This key e-Mail is missing from the audit files. Mr. Arnold was considered the “resident” baseball expert and had been asked to help with finding suitable sample RFQ reference documents. Mr. Arnold accepted sample scope documents from Dan Barrett, who was applying for the facilitator position. An example from Mr. Barrett was somehow incorporated into the RFQ. For some reason, the 2008 Request for Qualifications (RFQ) for a spring training contract negotiations facilitator was converted into a purchase order (PO 840824) after a joint procurement process was conducted by the City of Sarasota and Sarasota County. The audit does not provide any explanation for the conversion of an RFQ to a purchase order for legal services---a situation exempt from procurement policy. The audit states that because the "procurement of facilitation services for negotiation with the Baltimore Orioles was deemed exempt, our review of the procurement of those facilitation services was limited to confirming that Competitive Procurement Exemption Request forms were properly documented and authorized." This appears to conflict with one of the stated goals of the audit (See p. 3), to “determine whether the controls in places, if adequate, have been applied effectively to obtaining facilitation services to assist with negotiations with Major League Baseball team franchises.” So the procurement process began as an RFQ, subject to procurement rules. It was only after Mr. Barrett was selected through the RFQ procurement process that the RFQ was converted to a a solicitation for legal services (which is exempt from procurement rules) and a purchase order was issued. Instead of contracting directly with Mr. Barrett, the legal firm Jacobs Chase (a known business associate of Dan Barrett) was hired, and Jacobs Chase subcontracted the work to Dan Barrett. A solicitation and acceptance of scope documents from a favored bidder appears to have occurred. But because the Clerk's audit confines itself to confirming the proper completion of exemption forms, the possible favoring of a bidder is never fully explored. 2009 Owner’s Representative RFP (09851)—Violation of County Procurement Manual, Sect. 6.8.6 On July 23, 2009, Dave Bullock, Deputy County Administrator and chief county negotiator, sent Dan Barrett an e-mail requesting samples of owner’s representative RFP and scope of work documents. He copied Jenny Yarabek, who was assisting with the RFP, and Stephen DeMarsh, the county attorney. On July 27, 2009, Dan Barrett replied to Bullock, Yarabek and DeMarsh, indicating that the several attached sample documents were from IFG. IFG was a known prospective bidder for the owner’s representative contract. Section 6.8.6 of the County Procurement Manual prohibits any contact between members of the relevant business unit and potential or known bidders during the procurement process. The procurement period for the Owner’s Rep RFP was defined as July-October, 2009. The documents provided by IFG were used by the County to write the RFP. Within a few hours of receiving the IFG sample documents from Dan Barrett, Jenny Yarabek informed Carolyn Eastwood, the author of the RFP, that she had received sample RFP material. Ms. Eastwood consequently informed a colleague to “call off” her on-line search for samples—a search which had not yielded much fruit. The Clerk's audit states there was no attempt to hide that the source of sample RFPs and scope documents used by the County for the 2009 Owners Rep RFP was IFG (p. 10). How does copying colleagues on an e-Mail soliciting RFP references and accepting them from a known bidder justify the circumvention of procurement policy? It is concerning that the Clerk’s audit appears to rationalize a violation of procurement code. Moreover, numerous others were not informed about the source of the RFP references. Ms. Eastwood was not informed by her superiors that she was using reference documents provided by IFG to formulate the RFP. In her audit interview, Ms. Eastwood stated "She was unaware that IFG had been the source of Dan Barrett's material provided to her for RFP development and that in her experience it would be normal in such a situation to consider excluding the contributing firm from submitting a proposal. She said that had she been aware of IFG's involvement at the time, it would have been of concern to her." According to Mr. Arnold, Ms. Yarabek also sent him the e-mail containing the IFG documents, but removed the reference to IFG as the source. Audit interviews show that members of the Owner’s Rep RFP evaluation committee were also unaware of this fact. Finally, the other nine bidders for the contract were certainly unaware that documents selected by IFG served as the foundation for the creation of the County’s RFP. The Deputy County Administrator openly solicited RFP reference documents from an IFG business associate (Dan Barrett). He subsequently accepted reference documents which identified IFG as the source, copying others (including the county attorney) on the correspondence. This behavior appears to demonstrate contempt for county codes, which attempt to ensure an open and fair bidding process. Open violations are no less troubling than those hidden from scrutiny. Missing Documentation In addition to the county e-mail referenced earlier (Aug. 27, 2008), we expressed concern that a number of relevant e-mails, either in the public record or on the county server, are not included in the audit files. An e-Mail to Dave Bullock (Deputy County Administrator) from Larry Arnold (July 23,2009) demonstrates that Mr. Bullock was aware of Arnold’s connection to and advocacy for International Facilities Group, a known bidder for Owner’s Representative in 2009. The Deputy County Administrator stated in his audit interview that had he known of Mr. Arnold's connections and communications with IFG, "he would not have appointed Larry Arnold to the Owner's Rep RFP evaluation committee" (Bullock interview, audit files). The e-mail referenced contradicts the Deputy Administrator's claim that he was unaware of an Arnold/IFG connection. The omission of this e-mail from the audit report and related files is troubling. The audit report and publicly accessible audit files also do not appear to include relevant communications between IFG and Dan Barrett. All communications between IFG and Mr. Barrett regarding Sarasota County business are public records; Mr. Barrett's computer hard drive and relevant documents were part of a sunshine case in Sarasota County. At least one of these e-mails shows a concerted effort by Dan Barrett and IFG to create an advantage for IFG in the competitive bid for Owner’s Representative—a $500K county contract. In this e-Mail to Dan Barrett (July 24, 2009), an IFG official discusses the RFP sample documents requested by the county, notes that a scope of work document had been “tweaked” for the Sarasota project, and lists qualifying criteria which would help to “whittle down” the field of bidders. These criteria made their way into the RFP and helped to formulate the Past Experience criteria used on the scoring sheet to evaluate bidders. Missing Procurement Rules and Definitions The July 2010 audit fails to include Sect. 6.8.6 of the Sarasota County Procurement Manual in effect at the time. This is most relevant as it prohibits county employees from having contact with potential or actual bidders during the procurement period. The Clerk's audit defines the procurement period as July 1 -October 15, 2009 (p. 9) and June -September 2009 (p. 13) for the 2009 Owner's representative RFP. Section 6.8.6 states: “During the time when the document is being drafted, the advertising period, the evaluation period, and as appropriate after recommendation of award, the Business Unit shall have no contact with potential or actual proposers, and shall direct all communications regarding the RFP to Procurement.” The July 2010 audit states that auditors "did not identify any instances of non-compliance with the Sarasota County Procurement Code of Procurement Manual". The contacts that county employees outside of procurement had with IFG (in 2009) appear to be in violation of Sect. 6.8.6. Mr. Arnold's contact with Dan Barrett during the 2008 RFQ also appears to violate County standards. The July 2010 audit also fails to include Sect. 18 of the Sarasota County Owner's Representative RFP Document which addresses lobbying. Sect. 18 states that "Proposers, their agents and associates shall not contact or solicit any County Commissioner, County employee, or official regarding this RFP during any phase of the RFP. Failure to comply with this provision may result in disqualification of the Proposer, at the option of the County. Only that individual listed as the contact person or Sarasota County Asset Management shall be contacted." It appears that this County prohibition was violated repeatedly by both vendors and staff, yet it is not included in the July 2010 audit. The July 2010 audit does not define the following terms: "competitive bidding", "undue influence", or "conflict of interest". However, terms such as collusion and bid-rigging are defined—neither of which applies to the situations in question, since both terms are concerned with competing vendor interactions. Defining “Undue Influence” We also take issue with the claim that undue influence is limited to influencing others to vote a certain way. Regarding a procurement process, wouldn’t a reasonable definition of "undue influence" include situations where a position of power or trust is misused to benefit a person, group, cause or business? Placing a personal associate of a known bidder on a RFP selection committee seems to represent a clear conflict of interest by any reasonable standard, as well as a potential interjection of undue influence. Section 6.8.8.c of the County Procurement Manual states, "The makeup of each RFP Evaluation Committee must be approved by the Procurement Official". Ms. Eastwood, the procurement manager for the RFP states in her interview that "Dave Bullock made the final determination of the evaluation committee members". In addition to making the final determination, the initial appointment of Mr. Arnold to the RFP selection committee was made by the Deputy County Administrator. As a practical matter, if Ms. Eastwood's authority to approve committee members were intact, would any Procurement Official feel comfortable vetoing an appointment by the Deputy County Administrator? In June 2009, Mr. Bullock accepted professional assistance from IFG regarding the spring training contract language--at no charge. During the procurement period he was reminded of IFG's help by Mr. Barrett. Did IFG's assistance influence Mr. Bullock's decisions about the RFP selection committee? Was it consistent with County Policy for the Deputy County Administrator to make the final determination of the composition of the RFP selection committee, rather than the Procurement Manager, Ms. Eastwood? It was explained to us that because five bidders were invited to participate in the final evaluation round that the process was fair. In our June 17th meeting, we pointed out that Mr. Arnold appeared to be instrumental in the RFP evaluation committee’s decision to include IFG in the final round of oral presentations. The audit doesn't recognize how IFG benefitted from Arnold’s advocacy (p. 11). Three evaluation committee members seemed poised to eliminate IFG in the first evaluation round. Mr. Arnold's lobbying for IFG was a significant factor in the committee’s decision to include them in the final round. The audit also does not consider the impact of recommendations from IFG that appeared on the scoring sheet used to evaluate bidders in the final selection process. Both Mr. Barrett and IFG recommended emphasizing Past Experience in the County’s evaluation criteria. All but one of the qualifying criteria suggested by IFG appeared on the list of qualifications required to achieve a perfect score of 50 points. Indeed, IFG was the only firm to receive perfect scores for Past Experience from every member of the selection committee, which represented 50 of a possible 90 performance point total, or 56% of the performance criteria. Prior to the final round of oral presentations, the Deputy County Administrator scheduled private meetings with the three RFP evaluation committee members who had been critical of IFG in the first round. Is it appropriate for Mr. Bullock to hold private meetings with some RFP evaluation committee members and not others? The auditor's interview does not ask Mr. Bullock to explain why he met with some committee members and not all. Mr. Arnold's advocacy for IFG and the evidence of IFG/Barrett contributions on the scoring sheet represent possible undue influence and/or a conflict of interest. Mr. Bullock's role in approving the Owner's Representative evaluation committee members and his meetings with select RFP evaluation committee members are also troubling. The fact that four other bidders gave oral presentations is not sufficient to rule out undue influence or show that a procurement process was fair. No other bidders were given the same opportunity as IFG to provide references and recommendations which were incorporated into the RFP process. Defining "Conflict of Interest" In our discussion we disagreed with the assessment that conflict of interest is apparent only when a person stands to reap financial or personal gain. Doesn’t a conflict of interest also occur when a County employee's obligations to the public could be influenced by self-interest (not necessarily financial), competing loyalties or an inability to be objective? In August, 2009, Larry Arnold, a high-level county employee with personal connections to IFG, was chosen by Dave Bullock to serve on an Owner’s Representative RFP evaluation panel to select one of ten bidders—which included IFG. Mr. Arnold had previously been involved in the questionable RFQ process occurring in 2008, involving Dan Barrett—a business associate of IFG. The Clerk’s audit documents multiple contacts Mr. Arnold had with IFG officials during July- August, 2009. (IFG is owned by the son of Jerry Reinsdorf, an MLB owner who became acquainted with Larry Arnold when he was employed in a local government position in St. Petersburg, FL.) Arnold sent Dave Bullock an e-Mail containing an endorsement of IFG for owner’s representative sent to him by Jerry Reinsdorf in July, 2009. Mr. Bullock noted in his response to Arnold that Dan Barrett also had endorsed IFG for the owner’s representative contract. (This e-mail is missing from the Clerk’s audit.) On July 23, 2009, Mr. Arnold received an e-Mail from Joe Briglia (IFG) indicating that the County had requested RFP sample documents. This e-mail included a note from Dan Barrett who expressed how he wanted to differentiate IFG from other bidders. In spite of his contacts with IFG, Mr. Arnold signed a statement indicating he had no conflict of interest. The Clerk’s audit raises no questions about Mr. Arnold’s ability to serve as an objective fiduciary for Sarasota County taxpayers. Even the Deputy County Administrator acknowledges in his audit interview that Mr. Arnold’s contacts with IFG were a basis for disqualification from the RFP evaluation panel. Third Party Source Data On pages 3 and 13, the Clerk's audit report states that "we did not have access to original source data under the control of third parties outside Sarasota County Government". We have been given two explanations by the Clerk's office about the nature of the missing third party source data: 1. The missing third party source data refers to e-mails between Dan Barrett and IFG. Mr. Barrett's communications with IFG regarding Sarasota County business are public record as Mr. Barrett was a vendor working for the County. One Clerk auditor explained that e-mails between Mr. Barrett and IFG were omitted to prevent prejudicing the audit's findings. E-mails between Mr. Barrett and IFG concerning Sarasota County business belong in the audit report and files. The local sunshine court case included relevant Barrett/IFG e-mails accessible to the Clerk's office in Sarasota County Court records. However, the sunshine investigation was not conducted by certified fraud examiners. The auditors should conduct their own inspection of Mr. Barrett's relevant communications with IFG and key Sarasota County Employees. 2. The missing third party source data refers to the financial records of Mr. Arnold, IFG and Mr. Barrett. The Clerk's audit files contain documentation on Mr. Arnold's real estate holdings and his automobile. We also note that five pages from the audit report contain criminal state statutes regarding bribery and unlawful compensation or reward of a public servant. If the Clerk's auditors find themselves including documentation of a County employee's personal assets, has the audit moved into territory that exceeds the Clerk's authority? Is it the Clerk's responsibility to refer their inquiry to a government agency with the authority to access the third party data? The public has a right to understand what "original source data" the audit is referencing, who the "third parties" are, and how that data is relevant to the audit. The "Beyond a Reasonable Doubt" Standard We are concerned that the threshold for identifying problems with procurement practices used in the July 2010 audit is unreasonably high. The "guilt beyond a reasonable doubt" standard was described to us repeatedly in our June 17th meeting. The Clerk's office does not conduct criminal investigations, so a "beyond a reasonable doubt" standard sets the bar far too high for identifying procurement violations. The audit's stated goals included determining "whether controls in place are adequate in comparison to generally accepted best practices for procurements of consulting services". Yet less than one year later, the National Institute of Government Procurement (NIGP) report completed in May, 2011, found 151 problems with Sarasota County's procurement department. The standard used by NIGP was not a criminal standard but they were not deterred from uncovering scores of inadequacies in procurement policies. The Clerk’s Audit in July 2010 represented an opportunity for Sarasota County to initiate meaningful procurement reforms—a significant opportunity lost. Simply put--it should not take an arrest to recognize procurement violations and recommend disciplinary actions. And it appears that the auditors did not compare Sarasota's procurement practices to a national "best practices" standard, although that was a stated goal of the audit (p. 3). We are also concerned that the audit's focus on a criminal guilt standard misses the exposure to civil liability that result from unfair procurement practices, another reason why the "beyond a reasonable doubt" standard appears to be inappropriate. Finally, the seemingly unethical nature of staff actions associated with the 2008 RFQ and 2009 RFP ought to be sufficient evidence of policy violations and cause for reform. The Clerk's audit states that they found no indication in the public record that IFG acted on Dan Barrett's offer of assistance to help differentiate IFG from other bidders. We strongly disagree. An e-Mail from David Perez (IFG) to Dan Barrett (July 24, 2009) was aimed at providing RFP samples and selection criteria for the County to benefit IFG. Perez discusses several files “for your use”. He mentions “tweaking” the scope of work to “match the Sarasota project.” He also indicates that one sample document will “give them an idea of what we like to see in an RFP…” Perez goes on to list five qualifying criteria--“Also, we’ve made a list of a few possible requirements to submit to be considered for an Owner’s Rep RFQ. If the county includes any two of these in the quals to bid, they should whittle down the field to a very strong few…” In response, Mr. Barrett states “he will send the attachments to the County” and asks Perez to send “the scope in word so they can incorporate it into their RFP.” While the auditors were aware of this e-Mail, it was not included in the auditor’s report. Buried in the Clerk’s audit notes under “Experience Criteria” (and absent from the audit report) is the following statement: “…there was no undue influence in the development of the “past experience” component of the scoring matrix used to establish final rankings.” Again, we strongly take issue. The documents used to arrive at this conclusion do not include the Perez (IFG)/Barrett e-Mail mentioned previously. Perez lists specific qualifying criteria, “the quantities are flexible”…. “We have room to increase any number on this list should the County choose.” In addition, it seems that the criteria provided by IFG are largely represented in the County's “past experience” scoring matrix. Of particular concern is the requirement that the project team “demonstrate experience with five recent similar sports projects”. Have the auditors fully explored how these particular quantities were determined? If evaluators were required to strictly adhere to the matrix, it appears that IFG was favored to earn the maximum 50 points for “past experience”. As it stands, IFG was the only one of the five finalists to receive perfect “50s” from all five evaluators. In the end, IFG was awarded a near perfect 88 of 90 total performance-related points; Fawley-Bryant was a distant second with 75 points, followed by URS with 73 points. Scores for the other seven bidders ranged from 22-66 points. It appears that IFG provided criteria that was incorporated into the scoring matrix, and that quantities may have been adjusted to enhance the chances for IFG's success (as per IFG's e-mail). The Clerk's audit explains that the RFP documents provided by IFG were public documents, available on the internet. As we discussed during our meeting, all RFP documents are public documents. The issue here is that the County relied on source documents provided by a known bidder -the winning bidder. Other bidders were unaware of this relationship and were not offered the same access to the process. We are concerned again that auditors seem to be offering explanations that seek to mitigate a significant problem--County supervisors violated procurement code by accepting documents from one known bidder, and other bidders did not have the same access. The public nature of RFP documents does not change this fact. The Clerk's audit states that a key employee (Larry Arnold) ceased to have contact with IFG once he was placed on the evaluation committee (see Audit p. 14, Sect. C) We can find no exception in Sarasota County Procurement Code that allows for contact with a known bidder as long as that contact ceases after one is appointed to the RFP evaluation committee. Again, it appears that the auditors are offering explanations that mitigate procurement code violations. This commentary seems unnecessary and inconsistent with independent oversight. Conclusion and Requested Next Steps We support the independence of the Clerk of the Circuit Court as a Constitutional officer of Sarasota County, and we believe the just exercise of the Clerk's authority as an independent auditor is critical to ensuring honest, fiscally responsible local government. That said, nearly a year ago, we reviewed this bidding audit and arrived at similar conclusions covered in the Sarasota Observer in August, 2010. Now, it is only due to the recent arrest of a county employee by a prosecutor in Palm Beach County that Sarasota procurement policies are currently being reviewed and investigated thoroughly. For such a serious situation to exist is evidence of the failure of Sarasota County’s internal auditing and oversight. Had the Clerk exercised independent and critical oversight in last July’s audit, is it possible that the current procurement scandal might have been avoided? The recent NIGP procurement assessment arrived at very different conclusions than the July 2010 audit. We ask the County Clerk to redo the 2010 audit, as its stated objectives (listed below) were not met. 1. Determine whether controls in place are adequate in comparison to generally accepted best practices for procurements of consulting services. 2. Determine whether the controls in place (if adequate) have been applied effectively in obtaining Owner's Representative Services for the Design and Construction of Spring Training Facilities. 3. Determine whether the controls in place, if adequate, have been applied effectively in obtaining facilitation services to assist with negotiations with Major League Baseball team franchises. 4. Determine whether significant shortcomings exist in current policies and procedures associated with retaining consultant services, and if so, make recommendations to improve controls. The NIGP assessment is evidence of the difference between Sarasota's internal assessment and national standards. In order to restore faith in local independent oversight, in order to set a new standard for Sarasota's internal audits, the July 2010 audit must be redone. A new audit should: • Include information that was left out of the July, 2010 audit. • Outline facts and remove problematic and speculative commentary. • Hold County staff accountable for violations and changing the RFP process • Focus on clearly outlining how a proper RFP should operate. It is imperative that the Clerk's office be willing and able to produce an audit that is appropriately critical of County staff. In the wake of the Rodney Jones arrest in March, 2011, a number of County employees have been fired or have resigned due to upper management scrutiny of their compliance with procurement standards. The July 2010 audit focuses on procurement processes that call into question the actions of County Administration upper management. It is untenable for high level supervisors to seemingly demonstrate disregard for ethical procurement standards, and later terminate employees for doing the same. It is the responsibility of the Clerk's office to provide meaningful oversight for the County Administration. In order the meet the Clerk's obligation, a new audit is necessary. Respectfully, Pat Rounds Cathy Antunes Sarasota Citizens for Responsible Government