Does Jackson’s RFP prevent the city from walking away from Richard’s Disposal? We take a look.
JACKSON, Miss. (WLBT) - For months, Mayor Chokwe Antar Lumumba has maintained provisions in the October 2021 request for proposals (RFP) prevent him from ending negotiations with Richard’s Disposal.
However, a quick review of that RFP brings the mayor’s claims into question, with one provision in particular saying the city can reject any proposal for almost any reason.
Days after the city council rejected awarding Richard’s a six-year trash-hauling contract, Lumumba still says he cannot legally bring forward another firm for consideration under terms of the RFP.
“What the law says is you have to abide by the RFP, what you put in the RFP,” he said. “And if you have not stated an issue with the terms of service, then Richard’s does not walk away. And we cannot go to the next vendor.”
The mayor was speaking at a Thursday press conference, six days after the city’s emergency contract with Richard’s expired, leaving tens of thousands of residents without trash service.
City Attorney Catoria Martin backed up the mayor’s claims, telling reporters, “there is no section of our RFP that says we can unilaterally, without reason, move on and amend the terms of that contract.”
“We can negotiate the elements of the work, and as long as a vendor is willing to negotiate the elements of the work, we can continue that negotiation.”
A provision found in Section 2.3 of the RFP, though, says the city has the right “during the selection process, to reject any or all proposals, modify or postpone the proposed project, evaluate any alternatives offered, or accept the proposal that, in the city’s sole judgment, is in its best interest.”
Lumumba and the council have been at odds for a year over the contract. He said on Thursday the main thing he’s focused on is cost.
“I was agnostic when FCC was presented to me. And I chose FCC because they were the lowest and I’m agnostic today, when you have a company that is 32 percent less,” he said. “So, am I loyal to anything? Yes, I’m loyal to price.”
He was referring to FCC Environmental Services. The council rejected his proposal to bring on that firm in 2021, prompting the administration to issue the October RFP.
Some council members say they’re looking at more than just the contract’s overall cost.
Council President Ashby Foote, for instance, says the firm scored lower than its competitors in every category except price.
“The mayor is trying to hide behind oblique legal terms that don’t pass the smell test,” Foote said. “He’s twisting reality to protect his narrative and his position.”
State acquisition law allows cities to choose the lowest-priced and best bidder, not simply the lowest. However, if any government entity does that, the reason for the decision must be included in the entity’s minutes.
Three vendors - Richard’s, FCC and Waste Management - responded to the October request. Proposals were graded based on several categories, including price, vendor experience, performance plans and minority business participation, with price accounting for 35 percent of a vendor’s total score.
Ward 6 Councilman Aaron Banks said Richard’s overall cost wasn’t the issue, but rather the company’s performance in New Orleans.
NOLA.com reported in January that Richard’s “has recently seen increasing numbers of missed pickup complaints” and has “amassed a monthly average of 1,280 complaints of missed pickups over the second half of 2022.”
“It is the mayor’s job to present any contracts to the council. It is the council’s job to vote yay or nay on each contract presented,” he said in a statement. “If a contract/vendor is voted down twice within one year, the mayor must present another contract or vendor.”
Lumumba argues that presenting another proposal could lead to a lawsuit, saying that every concern council members have had with Richard’s has been addressed by the company.
Council members have raised questions about everything from Richard’s trucks being able to access certain alleyways in Belhaven to whether Jackson was getting fair market value for the required trash bins.
The mayor says those concerns have been addressed and as long as Richard’s continues to address the council’s concerns, the city can’t walk away.
“An RFP... is a unilateral contract. It’s a unilateral contract to all vendors who respond,” he said. “You have to maintain that contract, or you are in breach.”
However, provisions seem to give the city some wiggle room even in terms of that statement. Section 2.3, for instance, says the city reserves the right to “amend the contents of this RFP by addendum as it deems necessary” and respondents to it have the “sole responsibility” of keeping up with those changes.
Section 4.3.4 states, meanwhile, says if “negotiations with the highest-ranking service provider fail, solely at the city’s election, negotiations may be initiated with the next highest-ranking service provider, and so on, until an agreement is reached.”
State law also gives municipalities broad authority. According to a summary of solid waste procurement procedures published by the Office of the State Auditor, entire RFPs can be tossed “if the governing authority or agency deems none of the proposals to be qualified or otherwise acceptable.”
“The RFP process is there for municipalities to choose because you have to have a choice,” Ward 5 Councilman Vernon Hartley said. “And so far, we’ve had one choice the last five or six times.”
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