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The Jail Break

Allowing a taller jail, sources say, gave the city’s chosen builder a huge advantage. But was it fair?

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On its face, it seems like a minor nitpick. In the city’s selection of Tompkins Builders and S.B. Ballard Construction Co. to build a new jail, the city was willing to overlook one of the requirements listed in its request for proposals: The building could be no higher than the eastern hill behind it.

Tompkins/Ballard proposes a jail that is six stories, 101 feet and 4 inches tall, more than 10 feet above the highest elevation of the hill. But it wasn’t a big deal, officials informed City Council Monday night. The impact was minimal, and the trees largely obscured jail’s rooftop. The issue was raised almost two hours into the meeting, by Councilman Bruce Tyler, and it came and went with little discussion.

But it was no minor detail, sources tell Style Weekly. The city made it clear that it was an important qualifier to the contractors bidding on the project in December. The height restriction, says a person involved in the procurement process, meant the jail would have to be built outward, consuming more of the existing jail site. The city’s restrictions on height increased the cost of building the facility by several million dollars, which meant staying within the city’s budgeted $134.6 million was impossible.

“Any one of these teams could and would have been in the same price range as Tompkins given the same latitude not to comply with the performance criteria, such as the height restriction,” this person says. “It absolutely changes everything.”

As City Council prepares to vote on the proposed jail contract July 25, questions about how the contract was awarded continue to mount. After reviewing the proposals and the procurement process over 10 days, City Auditor Umesh Dalal released his findings July 18, at a council work session. He recommends that the city hire an outside lawyer to review the procurement process that led to Tompkins/Ballard being selected. There are questions about the validity of the minority contracting portion of the deal, whether the city exaggerated the grading scores the four bidders received during the evaluation, and other issues concerning the jail’s location.

It’s easy to get lost in squabbling over seemingly minor details -- for instance, Dalal found that one of the four bidders didn’t submit audited financials, which he says should have led to one group being eliminated during the evaluation process. It was allowed to continue bidding, but that team wasn’t ultimately selected.

The height restriction, however, is different. The city’s willingness to overlook Tompkins/Ballard’s taller building raises critical questions about the fairness of the procurement process, Tyler says. And it’s a clear example of how the city’s deviation from it’s stated requirements in the jail request for proposals drastically altered the pricing the four teams presented to the city. The three teams that met the height requirement all exceeded the budget. The closest was $5.4 million over; the highest $17.8 million over.

Tompkins/Ballard’s initial proposal was $11.5 million under budget. Sources say wide gap in the price differences, from $16.9 million to $29.3 million, would have largely disappeared without the height restriction.

“That’s a huge game changer,” Tyler says. “It’s very obvious that the [city’s procurement] team did not follow their own procurement rules. We are going to have to step in and verify what was and wasn’t done. It’s critical.”

The point, say some, isn’t whether the city ultimately decided the height of the building wasn’t as big of a problem as it anticipated -- there was concern that a taller building might impede residents’ views of downtown -- but whether one team had an unfair advantage, especially when relaxing the building’s height requirements would have allowed all of the bidders to build the jail in a single phase, which meant not having to relocate inmates, and reduce the cost.

The height requirement was so important, sources say, that almost everyone involved in the bidding process knew the new jail couldn’t be constructed for $134 million, the city’s budget for the project. Spreading the jail outward, closing a portion of the existing jail, and possibly building a basement was simply more expensive. In fact, Tompkins/Ballard noted as much in its proposal, which included an alternate design that met the height requirement.

“We have provided an alternative concept that lowers the overall height of our proposed design by 19’-14’” for a total height of 82’-0”. To accomplish this, the project will require an additional phase of construction extending the construction duration,” the Tompkins team outlines in its proposal.

During a brief exchange Monday, Tyler asked city officials about why it overlooked the height restriction in selecting Tompkins/Ballard, pointing out that, according to the city’s request for proposal, not doing so should have resulted in disqualification. In a very detailed set of requirements, the city instructs:

“During the detailed phase evaluation, a Review Committee will review the proposals to ascertain which proposals address all of the requirements of the Request for Proposals. Proposals determined to be technically non-responsive or not as responsive as other proposals will be eliminated at this stage.”

The height restriction clearly was one of the requirements, so much so that the committee reviewing the proposals instructed the teams to prove that their buildings met the height requirement, says the person involved in the procurement process. At Monday’s meeting, Tyler asked Deputy Chief Administrative Officer Chris Beschler why it chose to forgo the restriction in selecting Tompkins/Ballard. He read aloud the city’s “Performance Criteria” released in December 2010, which states: “Prescriptively, the City requires that finished elevation of any portion of the new construction not exceed the height of the bluff located on the western extreme of the site.” This, Tyler pointed out, isn’t ambiguous.

“When you look at the design, again, just looking at the drawings, it’s obvious to me the building is higher than the bluff,” Tyler said. “The word prescriptively is a rule, and it’s saying don’t violate this. And yet this design team violated that. And the city accepted that violation, if I am interpreting this correctly.”

Beschler asked Tyler to point out the height restriction reference, and after a few minutes of flipping through the document, Beschler responded: “For the amount that exceeded that bluff, we were going to let that go.”

Byron Marshall, the city’s chief administrative officer, coolly approached the lectern, in an attempt to explain the decision further.

“In almost every RFP, the city can waive any provision in the solicitation. An RFP is for negotiation,” he explained, adding that the height of the building wasn’t enough to offset the excellent overall design of the facility. “Also, looking at it from various points in the neighborhood, we determined it was not a major detriment.”

Dalal says his team addressed the height restriction with the city attorney, but at the time didn’t know that a taller building had cost implications. “We didn’t know the significance of that variance,” Dalal says. “We did look at the height restriction in a limited way. However, we were informed that ultimately the zoning board rules on those restrictions prior to allowing construction.”

Dalal, who spoke with Style on Wednesday, says it’s an example of why the city should have negotiated with more than one of the bidders, as allowed in the procurement process the city selected.

“Had they negotiated with the second-best that would have opened up price and other aspects, including design,” he says.

It’s a point that isn’t lost on Tyler, who also is an architect. He wonders why Tompkins/Ballard would risk everything and present a base proposal that clearly violates the height restriction, particularly when bidding on such projects costs upward of $500,000. Among the four bidders, only Tompkins/Ballard proposed a building that was taller than the bluff behind the jail property.

“Why did the Tompkins team make that decision over the other teams?” Tyler posits. “I’m asking, ‘What did they know to risk a half a million dollars?’”

There are, of course, other questions that have yet to be answered. The priority for Tyler is the minority participation in the project. The city weighted minority participation higher than all other qualifiers for the jail contract, and Tyler continues to wonder why the Tompkins/Ballard team didn’t sign and submit the appropriate minority business enterprise form, also required in the request for proposals.

“That document requires them to certify that they have the minority participation. They didn’t sign that document,” Tyler says. “It’s a huge point. This is not just a casual document. They document has to be signed by them so that the city has some recourse” if the team’s proposed minority participation -- Tompkins/Ballard guarantees 50 percent of the construction will be performed by minority contractors -- isn’t met.

Mayor Dwight Jones has asked City Council to approve the Tompkins/Ballard team to build the jail on Monday, in order to have an agreement in place by early August. It’s still unclear whether Jones has enough votes to more forward.

Councilman Marty Jewell says he’s disturbed by the lack of time that City Council has had to review the jail proposal. He also says the city’s willingness to allow Tompkins/Ballard to build a taller jail is unfair.

“That could be a game changer, along with some of the other anomalies and missteps and weird interpretations. I am troubled by it,” Jewell says. “I am hopeful that my colleagues would follow the recommendations of the auditor and get a second opinion of what we are looking at.”

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