City commission goes against recommendations of staff and City attorney in selection of vendor for distribution of ARPA funds

BY JENNIFER CABRERA

At the Gainesville City Commission’s January 6 meeting, the commission voted to select the Community Foundation of North Central Florida to distribute American Rescue Plan Act (ARPA) funds to local non-profits against the recommendations of a staff evaluation committee and the advice of the Interim City Attorney and the Director of Strategic Initiatives.

At their December 6 meeting, the commission asked the Interim City Manager’s office to move forward with a Request For Quote (RFQ) for a consultant to manage the distribution of the $7 million of ARPA funds to local non-profit entities in Gainesville. Five responsive proposals were received; those proposals were reviewed by an evaluation committee on December 22 that included four City employees, one each from the City’s Office of Equity and Inclusion, the Office of Strategic Initiatives, the City Manager’s Office, and the Budget and Finance Department. On January 3, the committee scored the proposals and ranked Baker Tilly as the most qualified, followed by CliftonLarsonAllen, Community Foundation of North Central Florida (CFNCF), UHY Advisors Mid-Atlantic MD, and iParametrics.

Gayle Dykeman from the procurement office said the criteria were stated in the solicitation document, and the team went through their standard evaluation process to compare the submittals against the criteria and rank them. In that standard process, after each evaluator independently ranks the proposals, they meet, discuss their rankings and their concerns, and issue the final rankings. In this case, the committee recommended that the contract be awarded to Baker Tilly. Two of the evaluators had ranked Baker Tilly at the top; one ranked CliftonLarsonAllen first; and one ranked UHY Advisors Mid-Atlantic first.

Bobby Griffith, Director of Strategic Initiatives for the City of Gainesville, described how the evaluators used a standard point system that is used for every RFQ and RFP that goes out from the City. She said Baker Tilly was ranked first because their proposal was “the most comprehensive for reporting and compliance and history of equal types of work in dealing with federal grants… as well as capacity” for dealing with the amount of money in the amount of available time. 

Mayor Lauren Poe said the final decision is the commission’s, but staff puts forward an objective recommendation that is consistent with the City’s adopted policies and procedures.

“My interest in changing the rankings, which is fairly regularly done from the dais, really rests more on what these funds are to be used for. This is for local non-profit entities, so therefore it was my interest… to really engage with an organization that had extensive relationships with non-profits in the area” – Commissioner David Arreola

Commissioner David Arreola said the City has worked with Baker Tilly a number of times, “so I’m not going to say anything negative about their application. My interest in changing the rankings, which is fairly regularly done from the dais, really rests more on what these funds are to be used for. This is for local non-profit entities, so therefore it was my interest… to really engage with an organization that had extensive relationships with non-profits in the area because we’re not just talking about reporting and compliance; that is an obvious necessity—any firm that we select is going to have to meet those criteria.” Arreola added that CFNCF has spent “a great deal of time developing non-profit expertise in our area, and I think that we would be remiss to not select a group that has that type of background.” He said he wasn’t ready to make a motion yet but advocated for changing the rankings to put CFNCF at the top.

Commissioner Harvey Ward concurred, adding that staff ranks proposals by “technical, easy-observable points. There are intangibles after that ranking that it’s our job to consider. The intangibles of this leave us, in my opinion, far in the direction of [CFNCF].” He said bringing in people who don’t understand Gainesville “is not likely to work… The job that we’re asking these folks is not… selecting non-profits who look good on paper but non-profits who have the capacity to do something great for our neighbors.” He said it was a “no-brainer” to support a motion to award the contract to CFNCF.

Commissioner Adrian Hayes-Santos said he would “rewrite” the list to put CFNCF at the top, but he had concerns about their projected timeline, which he thought was too quick to attract a broad number of applicants. 

Arreola made a motion to rank CFNCF at the top of the list, moving the others down from their recommended order, and begin negotiating with CFNCF. Ward seconded the motion.

Interim City Attorney Dan Nee said he wanted to “caution the commission regarding the proper procedure, if they’re going to deviate from the rankings provided by the committee, to ensure that the members have all had the opportunity to review all of the submittals… and consider the criteria, and thus having reasons for the difference in rankings” from the committee “to be sure that we don’t run afoul of the procurement issues that might arise.”

“[Your decision must be based] on the facts in the record. Otherwise, your decision could be deemed arbitrary and capricious and subject to being overturned in a court of law.” – Senior Assistant Attorney Lisa Bennett

Senior Assistant Attorney Lisa Bennett said decisions must be based “on the facts in the record. Otherwise, your decision could be deemed arbitrary and capricious and subject to being overturned in a court of law.” She said that if the commission had concerns about the rankings of the evaluation team, they needed to sit as the evaluation team, read the RFQ and all the responses, and individually rank the proposals based on the criteria. Then they should come back together as a group and have a public discussion. She recommended that they take all the documentation, rank the proposals in the next week, and discuss them at next week’s General Policy Committee (GPC) meeting. 

Commissioner Reina Saco said they all like objective processes, “but I really like the work that the Community Foundation does… I would be in full agreement to move them to the preferred number one spot.” She said that delaying to GPC would keep money out of the hands of the community for an extra week. “We’ve often been accused of just doing things on a whim; I don’t want this to be seen as that—even if everybody agrees… I don’t want to make it ammunition for further attacks on lack of process… I’ll always advise to follow attorneys’ advice.”

“It’s time to move forward, y’all. Process is wonderful until it stops people from getting the help that they need.” – Commissioner Harvey Ward

Ward said it wasn’t the first time “by any stretch of the imagination” that they’d chosen a different ranking than staff provided. “It is the first time that we’ve been told, ‘No, you can’t do that.’… I appreciate the caution. I do.” He said they had first asked non-profits to work with them on this on June 15—“June 15th. It’s time to move forward, y’all. Process is wonderful until it stops people from getting the help that they need.”

Hayes-Santos said the process is for the city commission to review the rankings. He asked the Interim City Manager to ask CFNCF to allow more time for applicants. 

“The best I could do is allow each commissioner, including the commissioner that’s absent [Desmon Duncan-Walker], to do their own evaluation, using the same form and criteria that our committee used, and bring those back… But at least then we’d have something defensible” – Mayor Lauren Poe

Poe said he couldn’t recall the last time they changed the staff rankings. “I don’t want my emotions to subvert my reason when making this decision. I cannot support the motion that’s on the floor. The best I could do is allow each commissioner, including the commissioner that’s absent [Desmon Duncan-Walker], to do their own evaluation, using the same form and criteria that our committee used, and bring those back… But at least then we’d have something defensible… To do that only because we say we know them and we know that they do good work, to me is not enough today.”

During public comment, Nathan Skop recommended requiring Baker Tilly to subcontract with CFNCF to combine Baker Tilly’s federal reporting expertise with CFNCF’s local expertise. Michael Perkins suggested adding points for local companies when doing evaluations. Interim City Manager Cynthia Curry responded that they were not able to add a local preference to the evaluation because the funding source was federal. Jon DeCarmine from GRACE, Angela Howard from the North Central Florida YMCA, Leza Mueller from Bread of the Mighty Food Bank, Marnie Wiss, and Cynthia Chestnut all spoke in favor of selecting CFNCF.

Poe asked if they could approve the rankings with the stipulation that Baker Tilly partner with CFNCF. Curry said the commissioners could say they would like to see that, but she could not stipulate that in her negotiations with Baker Tilly. Poe said that would be the best outcome for everyone: “That’s my ideal path forward; I don’t know if we can get there or not.”

“We need to follow our normal process… and it has to be open and fair to all… If we are going to consider doing something other than the recommendation of the evaluation team, it would require… that more due diligence be conducted by the city commission” – Gayle Dykeman, City procurement office

Dykeman told the commission that the federal requirements for ARPA funds say that procurement processes must be “consistent with procurement standards set forth under the uniform guidance,” which only allows for non-competitive procurements “only in circumstances which meet certain conditions, which these do not… We need to follow our normal process… and it has to be open and fair to all… If we are going to consider doing something other than the recommendation of the evaluation team, it would require… that more due diligence be conducted by the city commission… If we award a contract to a supplier, we’re not in the business of telling them how to do their business.” She said that a requirement for Baker Tilly to hire CFNCF “can’t be part of the criteria. It could have been, had we written it into the solicitation, but we have not done that.”

“I’m willing to live with the consequence advised against by our attorneys, rather than live with the consequence of another four weeks… or just taking more time away from our neighbors to get this money.” – Commissioner Reina Saco

Saco asked how long the process would be delayed if they issued a new RFP. Curry said it would be at least another 3-4 weeks. Nee said that was probably optimistic. Saco said she didn’t like any of the options on the table: “There is an inherent problem with… any of the suggestions put forward… It’s which problem we’re willing to live with and which consequences we’re willing to live with… To contradict myself, I think it should go to the Community Foundation, I will vote to support that motion… I’m willing to live with the consequence advised against by our attorneys, rather than live with the consequence of another four weeks… or just taking more time away from our neighbors to get this money.”

“The reason we have objective ranking processes and that they’re at arm’s length from the commission is to de-politicize them. We still have an opportunity to do that by declaring ourselves the evaluation committee… I believe that we’re doing ourselves a disservice by skipping over several safeguards that are built into our system” – Mayor Lauren Poe

Poe said one more time that if they didn’t agree with the ranking, they should serve as the evaluation committee and discuss their individual rankings next week at GPC. “That, to me, is the only fair and equitable way to move forward. The reason we have objective ranking processes and that they’re at arm’s length from the commission is to de-politicize them. We still have an opportunity to do that by declaring ourselves the evaluation committee… I believe that we’re doing ourselves a disservice by skipping over several safeguards that are built into our system to make sure that we are being objective and responsive to the criteria we laid out.”

Ward asked if that works or if it has problems of its own, and Nee said it would work, that if they go through the methodical evaluation process, “It can be defensible… To deviate from that, I fear, especially in hopes of making sure the money gets out quickly, you’re going to find yourself with a protest, and it’s going to backfire.”

Ward said he was “so disappointed we’re at this point. So disappointed. There’s a pretty clear choice here. I don’t want us to get a protest. We have some processes that need fixing.”

The vote to change the rankings and put CFNCF first was 4-1, with Poe in dissent and Duncan-Walker absent. 

Earlier in the meeting, during general public comment, Skop had mentioned UF’s decision to not shortlist GRU for a campus energy project, saying it could have been related to the commission’s delay in approving UF’s Campus Development Agreement: “These are intangible factors that factor into it.” Poe responded that “the accusation that UF would somehow sully an objective procurement process because of some completely unrelated local issue is a significant charge and should not be made lightly, because if that is the case… we will take it very seriously.”