Now, four months later, city staff is recommending that the city commission award the $1.1 million contract to DPB & Associates

The project was originally advertised and the bid process determined that Genesis, a local consulting firm, was deemed the top ranked firm.

After the bid ranking, a protest was submitted by DPB & Associates and the protest was reviewed and denied by the City Attorney.

At that point, city staff asked the city commission to approve the award to Genesis.

At the meeting to approve the Genesis award, City Commissioner Nancy Miller announced she would recuse herself based on the fact that “the appearance of a conflict is there because I have a relative that is affected….”

However, despite pleas from Mayor Gillum not to make any comments about the issue after announcing her recusal, Miller made a parting comment. Referring to a city staffer, Miller told City Commissioners, “He needs to tell you who he works for because the criteria did not work.”

After Miller left the meeting, a brief discussion ensued and City Commissioner Curtis Richardson, citing concerns about the bid process, made a motion to re-bid the contract. The motion passed 4-0.

And now the new bid process has resulted in a new top ranked firm – DPB & Associates

This new recommendation comes after the a November, 2017 City of Tallahassee Auditor’s investigation into contracts awarded to family members of City Commissioner Nancy Miller found the approval of those awards to DPB &Associates represented the appearance of a conflict of interest.

In addition, the audit found one of the 12 employees interviewed indicated the relationship between Buss and DPB & Associates did impact his thoughts when evaluating proposals from DPB & Associates. The audit stated that this finding “is demonstrative that the relationship can result in an unintentional bias in the selection process.”

The audit stated that “when these matters were brought to their attention, City management responded by immediately revising the City’s Purchasing Procedures to preclude any City employee from developing, recommending, or approving a procurement requisition, contract, purchase order, or pay request for any good or service from a business entity for which the employee may have a conflict of interest.”

Tallahassee Reports first broke the story about the contracts and possible conflicts in July, 2017.

This project includes improvements associated with both the Market Square Pond Improvements project and the Maclay Commerce Dr./Maclay Blvd. roadway enhancements project.

The 4-0 vote – Miller abstained – came after a prolonged bid protest process that was denied at each turn until presented to the City Commission.

The bid protest argued that  reporting by Tallahassee Reports about potential conflicts of interest related to DPB & Associates had biased decisions made by city staff.

The city commission vote went against findings by the city attorney’s office and required staff to re-bid the contract.

However, the top ranked firm, Genesis, has subsequently sent a letter to the Mayor and City Commissioners seeking a reconsideration of the decision.

The letter, in part, states:

“The apparent conflict or appearance of conflict generated by a familial relationship between a department director and a firm who was reasonably expected to participate in the process, DPB & Associates, LLC (“DPB”) warranted the slight deviation from the procurement manual. The slight deviation included a substitution for the department director and his direct reports from the RFP evaluation committee.”

Following the letter, on March 13, City Commissioner Gill Ziffer sent a letter to Acting City Manager Reese Goad requesting the vote to be reconsidered.

Ziffer wrote, “As part of the being on the majority side I’m requesting this item be brought back for discussion on 3/21/18. Please advise if this is possible.”

The agenda for the March 21st, 2018 city commission meeting includes the issue.

This latest turn of events continues a controversy that was first reported by Tallahassee Reports in June 2017.

Also, a recent audit by the City of Tallahassee found an appearance of conflict related to DPB & Associates’ business relationship with the City of Tallahassee.

The contract award was for the design of the Market District Multi-Purpose Stormwater Project.

When questioned about the bid process, current City Attorney Cassandra Jackson, who presided over the city commission meeting, told elected officials that changes to the bid process were made in an attempt to ensure we would “have no appearance of impropriety” since there were family connections involved.

Before the vote was taken, City Commissioner Nancy Miller announced she would recuse herself based on the fact that “the appearance of a conflict is there because I have a relative that is affected….”

Despite pleas from Mayor Gillum not to make any comments about the issue after announcing her recusal, Miller made a parting comment. Referring to a city staffer, Miller told City Commissioners, “He needs to tell you who he works for because the criteria did not work.”

After Miller left the meeting, a brief discussion ensued and City Commissioner Curtis Richardson, citing concerns about the bid process, made a motion to re-bid the contract. The motion passed 4-0.

Staff did inform city commissioners that a re-bid could possibly result in additional bid protests which could potentially delay the project.

The Bid Protest

City Attorney Shelley’s response to DPB’s assertion that they were discouraged by city staff to participate in the bid.

“Although the representatives of DPB clearly believed they were being discouraged from pursuing Phase III of this project as a primary contractor, there is no evidence that the City affirmatively prevented DPB from doing so. Furthermore, and perhaps more importantly, there is no evidence that DPB had any concerns about pursing this project as a sub-contractor until after the results were determined. Surely DPB could have noted somewhere, in some fashion, that it intended to be a primary contractor “but for” the suggestions by the City. By raising its concerns for the first time now, it reeks of “Monday Morning Quarterbacking”. On balance, it is equally likely, as Genesis pointed out at the hearing, that DPB made a business decision that it now regrets. This is not grounds to overturn an award recommendation.”

City Attorney Shelley’s response to DPB’s assertion that Reese Goad’s decision to change selection committee were biased.

When the totality of the circumstances surrounding this particular RFP are evaluated on the whole, I find Mr. Goad’s actions were perfectly reasonable. I also fail to see how changing committee members created prejudice against any vendor (or potential vendor).

City Attorney Shelley’s response to DPB’s assertion that a selection committee member was biased.

I have not been presented with any evidence to suggest the foundation of such a bias, and there is simply nothing other than speculation as to what the “original” committee members may have scored the various vendors. In fact, the notion that the scores for DPB would have been higher if employees of Mr. Buss were on the
committee is the exact appearance of bias City Management was trying to avoid.

Documents recovered by Tallahassee Reports show that City Commissioner Nancy Miller announced she would not seek re-election to the city commission during a controversial city bid protest initiated by DPB & Associates – a city vendor which is owned by Rich Buss, a member of Miller’s family.

Mr. Rich Buss is a principal in DPB and Mr. John Buss is Director of Stormwater Management for the City. John and Rich are brothers, and John is married to City Commissioner Nancy Miller.

The bid protest, filed on October 23, 2017, alleged city staff discriminated against DPB and Associates because of a series of investigative stories published by Tallahassee Reports.

DPB alleges the discrimination resulted in the loss of the Market District project which DPB stated had an estimated construction cost of $16 million with design consulting fees in excess of $1.6 million.

Over the last six months, Tallahassee Reports wrote several articles investigating the relationship between Miller, her husband John Buss, and DPB and Associates.

After the articles, the City Auditor Bert Fletcher, who is retiring at the end of this year, initiated an audit of DPB contracts and found no legal wrong doing but did note an appearance of a conflict.

Listed below are the details of the bid protest and the final decision rendered by City Attorney Lew Shelley.

The Bid Protest

DPB’s protest made several allegations about the impact of TR’s investigation on the bid process.

DPB wrote that “we were misled by the City when told that it would be “better for everyone” if DPB did not submit for the Market District RFP as a Prime Consultant (as we were intending to do at that time) because of Steve Stewart’s criticism and the “name recognition thing”, but were instead recommended to serve as a subcontractor to another consultant.”

Also, DPB alleged city staff “purposely misled” and conspired to discriminate against the firm.

DPB wrote “we contend that we were purposefully misled by City Management, through City Staff, to believe that if DPB did as recommended by the City, the discrimination against DPB, intended to address Steve Stewart and Tallahassee Report’s continued criticism of the City and City Commissioner Miller based upon her relationship to DPB through her brother-in-law Richard Buss would end…”

“However, at some time after Stewart’s articles began criticizing the City and Commissioner, the City implemented an effort to eliminate DPB from any further work with the City because the “City can’t take any more Steve Stewart criticism of the City and Commissioner Miller, based upon her relationship to DPB through her brother-in-law Richard Buss” (bold emphasis was in bid protest document).

The City Attorney’s Findings

City Attorney Shelley conducted a hearing and parties were allowed to present evidence. Also, Acting City Manager Reese Goad provided oral testimony at the hearing.

In the seven page discussion of Shelley’s final decision, he noted that DPB made three allegations. Listed below are the allegations and Shelley’s findings.

1) the City unfairly “urged” DPB to pursue the project as a sub-contractor, rather than as a prime;

Although the representatives of DPB clearly believed they were being discouraged from pursuing Phase III of this project as a primary contractor, there is no evidence that the City affirmatively prevented DPB from doing so. Furthermore, and perhaps more importantly, there is no evidence that DPB had any concerns about pursing this project as a sub-contractor until after the results were determined.

2) due to management pressure, the City failed to follow its normal Procurement Procedures when selecting members of the Evaluation Committee.

When the totality of the circumstances surrounding this particular RFP are evaluated on the whole, Shelley determined actions taken by the City were perfectly reasonable. Shelley failed to see how changing committee members created prejudice against any vendor (or potential vendor).

3) there were improprieties with the scoring of the proposals.

As to the perceived bias of Mr. Cowart, Shelley could find no evidence to suggest the foundation of such a bias, and there is simply nothing other than speculation as to what the “original” committee members may have scored the various vendors. In fact, the notion that the scores for DPB would have been higher if employees of Mr. Buss were on the committee is the exact appearance of bias City Management was trying to avoid.

Based upon the Shelley’s analysis, the protest of DPB & Associates was denied.

However, the audit found the approval of those awards to DPB &Associates did represent the appearance of a conflict of interest.

In addition, the audit found one of the 12 employees interviewed indicated the relationship between the AGM and DPB & Associates did impact his thoughts when evaluating proposals from DPB & Associates. The audit stated that this finding “is demonstrative that the relationship can result in an unintentional bias in the selection process.”

Tallahassee Reports first broke the story about the contracts and possible conflicts in July.

The audit stated that “when these matters were brought to their attention, City management responded by immediately revising the City’s Purchasing Procedures to preclude any City employee from developing, recommending, or approving a procurement requisition, contract, purchase order, or pay request for any good or service from a business entity for which the employee may have a conflict of interest.”

“Those revised procedures provide that a conflict of interest exists when an employee has, or appears to have, a financial or personal relationship with a vendor. A personal relationship includes, but is not limited to, marriage, family, or other close relationship that could reasonably be perceived as a conflict or create an actual conflict of interest.”

The audit also highlighted how perceived conflicts of interest can impact government actions.

“Similar to actual conflicts of interest, perceived conflicts of interest can erode the public’s trust in a government’s procurement practices and activities. For that reason, in those future instances where a potential conflict of interest exists in regard to an acquisition of goods or services, the evaluation, selection, negotiation, and authorization and approvals processes should be conducted by appropriate employees other than the employee that has the potential conflict of interest.”

The audit did not identify or become aware of any issues or matters during our review to indicate (a) DPB & Associates was not qualified for the work awarded; (b) the amounts awarded to the firm for the work were not fair or reasonable; (c) the infrastructure built based on the firm’s engineering work was not adequate; or (d) the engineering services provided by the firm were not adequate or sufficient.

Specifically, Auditor Bert Fletcher is looking into approximately $450,000 paid to DPB & Associates between October 2014 and May 2017. DPB & Associates is connected to Commissioner Miller through her brother-in-law, Rich Buss, who is a principal in the company.

TR reported about these expenditures on June 28, 2017.

TR also reported on the fact that the brother of Rich Buss, John Buss -who is Commissioner Miller’s husband – approved the expenditures.

The Tallahassee Democrat reported Tuesday that Auditor Bert Fletcher said the decision to conduct a “special audit inquiry” was based on information brought to the attention of the Auditor’s Office and the city’s independent ethics officer.

The audit will address the approval of  a continuing services agreement for eight companies -which included DPB & Associates – that could be hired to conduct civil site work engineering.

Continuing service agreements give city staff the authority to choose the vendor based on qualifications and are not based on competitive pricing bids for each project.

John Buss is listed as a Division Director in the City of Tallahassee’s Underground Utilities Department. TR has recently detailed the relationship between Commissioner Nancy Miller and DPB & Associates.

Records obtained by TR show that John Buss approved three different purchase orders totaling approximately $420,402 for DPB & Associates.

In August 2015, Buss approved purchase order #52103 for $98,292.

In October 2016, Buss approved purchase order #53453 for $122,907.

In January 2017, Buss approved purchase order 57054 fro $199,203. An image of this purchase order is shown below. Click on image to enlarge.

Tallahassee Reports also confirmed that the manager of the DPB & Associates, Lynda Pfundstein, was a paid campaign worker for City Commissioner Nancy Miller in 2014.

The jobs awarded to DPB & Associates were not through a sealed bid process. Rather, a set of vendors were approved by the city commission for three year contracts based on qualification ratings by city staff. When city projects were identified, city staff chose a contractor from the approved list of vendors.

The city commission voted to approve DPB & Associates as a qualified vendor two times based on the recommendation of city staff. City Commissioner Miller recused herself on the vote related to contract #2858 on December 12, 2012.

However, Commissioner Miller participated in the vote to approve DPB & Associates as a qualified vendor for contract #3087 on November 26, 2013. The city informed TR that DPB & Associates has not been awarded any work under contract 3087 as July 2017.

The majority of the money was for a stormwater project in the Market District near Maclay Commerce Road in the northeast part of town.

The web of connections between Commissioner Miller, the Buss family, and the City of Tallahassee raises questions about insider dealings.

In 2011, the City Commission adopted the “Market District Action Plan” with a vision of fostering a unique ‘sense of place’ in the Market District area.   During development of the Action Plan, re-purposing of the existing stormwater ponds in the center of the Market District was identified as a top priority.

In 2011 DPB & Associates registered with the state of Florida with a place of business address at 421 West Georgia Street, Tallahassee.

A search of state records shows that Rich Buss has been a registered engineer of DPB & Associates since 12/02/2011.

Interestingly, the 421 West Georgia Street address is the same address of the Big Bend Community Development Corporation (BBCDC) which is a non-profit corporation with significant ties to the City of Tallahassee.

In 2016, the City of Tallahassee released an audit of the organization which documented as of September 2016 the organization had failed to make any payments on city of Tallahassee loans totaling $1,275,000. Some of the loans were first originated in 2002.

The audit also found that the executive director of the BBCDC from 2012-2016, Tom Lewis, hired his daughter to help administer BBCDC activities funded by City CDBG funds.

And this is where it gets interesting.

The Executive Director of the BBCDC, Mr. Lewis, is also listed as the managing member of DPB & Associates. Mr. Lewis is a former employee of the city of Tallahassee who retired as Economic and Community Development Director in 2012.

The online check book for the City of Tallahassee shows that DPB & Associates has been paid $393,154 over the last three years. With the latest payment being $126,361 in March, 2017.

Public records show that the last two times the “Market District Action Plan” came before the city commission, Commissioner Miller’s husband and Rich Buss’s brother, John Buss, was the city employee listed as the information contact.

TR could not find anywhere in city commission agenda items where the work was put out for a bid or awarded to DPB & Associates.

A phone call to the city department handling the project would not provide any information about the bidding process.

Why is DPB & Associates, a for profit company, listing a non-profit company address as their place of business?

Does the connection between the City of Tallahassee, the BBCDC, and the awarding a contract to DPB & Associates violate any city policies?

And finally, was the project competitively bid? If not, what was the process for awarding this lucrative contract?

TR will continue to investigate.