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My initial letter to the City rgarding RFP proess
City’s reply to my initial letter
__________My Response to the City’s Reply__________

From: Morning M Shu
Sent: 07/25/2010 07:07 PM
To: “Thygesen, Sharon” , ZCowan@cityofberkeley.info
Cc: AHogan@cityofberkeley.info

Subject: RE: City of Berkeley RFP Process

Sharon, Thank you for taking the time to reply to my letter and:

1. Confirm that “the City does not have a ‘standard’ process for evaluation of proposals” and that “the RFP process is intentionally flexible to ensure that the City is able to contract with the vendor that is best suited for the needs identified”.

2. Explain the process that was used for the Measure E Review Panel to reach a final recommendation–but not the actual criteria used to reach the recommendation, as requested in my original email.

3. Explain that “the City’s RFP process specifically allows (you) to negotiate with vendors and award portions of the contract to more than one bidder”–even if it results in neither vendor being able to deliver required services? (EDI has conveyed to the City that they will not be able to provide 24×7 emergency services, if part of the budget is taken away from the whole program.)

4. Regarding scope of service–as CIL tries to “leverage” Measure E funds for its “community wheelchair repair shop”, I am afraid that the line between emergency and non-emergency services will be blurred, and scarce resources will be spent on separating program components (emergency attendant care, emergency transportation, emergency onsite vs. non-emergency in shop wheelchair repair, etc.) in order to justify the use of Measure E money.

The City, in its attempt to accommodate CIL’s need for funds to open its wheelchair repair shop, has not taken into consideration CIL’s mission, core competency, and program model.
As stated in the Panel’s recommendation letter: “CIL provides a broad range of services as part of its Independent Living Skills Instruction, which includes travel and mobility training; Personal Assistance Services, which assists consumers in navigating the In-Home Supportive Services system including matching consumer needs with home care workers; and assistive technology.”
Under the Federal Rehab Act, each Independent Living Center is mandated to provide four core services: Information and referral, Independent living skills training, Peer counseling, and Individual and system advocacy.

Not only has CIL not had any experience managing programs similar to the one required by Measure E, it’s proposal proved to the community that CIL does not have an understanding of what it takes to run an emergency services program for severely disabled residents. Yet, CIL tells EDI that the City Manager has promised (roughly 10% of) the budget, and that “it’s a done deal”…
For the record, I never suggested in my previous email that “posting of proposals during the evaluation and negotiation phases of this process is a practice the City should encourage”. I simply described what happened after the community outcry in response to the recommendation to award the Measure E contract to CIL.

The users of the emergency services and the community at large expressed, to their Council Members and the Commissions on Disability and Aging, 1) their satisfaction with EDI’s services while urging the Council to award the contract to EDI, and 2) their dire concern about CIL’s inability to fulfill its current program obligations.

Apparently, the City has a very different understanding of “CIL’s track record”, and used this perception “as part of the evaluative criteria”. While the “information about contract performance is useful in the evaluation of the bidder’s capacity to provide the service called for in the RFP”, it’s unclear how the City and the Panel determined that CIL has the ability to provide Measure E emergency services–is it based on CIL’s long past “history of leadership in the community”, or, its non-emergency service statistics provided to their city monitors to date?

The City cited reasons based on their negative perceptions of EDI (e.g. its Board overuses the service, which has been proven incorrect); and “the Panel” cited incomplete statistics in its recommendation letter, which the Contract Manager had to correct. While “the Panel” cites strong management track record as a criterion, the Executive Director of CIL, who has no management experience, has been publicly saying that CIL is doing this to “be the City’s hammer”. One has to wonder why all the City Monitors, who came and left in the past years, were unable to ensure contract performance, and why the City has to resort to using CIL as its hammer.

I am not surprised at all that you “have not found anything which lead (you) to believe that the process was flawed”, since the City doesn’t have policies/guidelines and has been using easily manipulated RFP processes with subjective criteria.

The citizens of Berkeley and their Council Members have given the City Manager the power to make contract and other decisions based on his sole discretion. If EDI was not instructed to cooperate with the City to provide a “smooth transition to CIL”, the community would have never known about the recommendation, and would have never had a chance to voice their concern. The Council would have voted to award CIL the contract on June 1st based on the City Manager’s recommendation–because they would not have received information before the meeting to learn what the contract is about and why the recommendation–and would have assumed (as the Mayor and the City Manager did) that the disability community would be very happy with the decision, when, in fact, every person who knows CIL’s “track record” and understands emergency services immediately feared “the days of 911 calls”!

The questions are no longer about the City’s RFP process, but the ability and integrity of our public servants to govern and serve Berkeley residents.

  • Is the decision-making process and the decision itself made in the interest of the community members who use the services?
  • If the City has the community’s best interest at heart, how does it obtain adequate input to understand the impact of its decisions, and ensure that contract awards are unbiased and not politically motivated?
  • Why is City staff, instead of supporting the City Council to make informed decisions, carrying out one man’s directive, while the citizens are told “the last thing you want to do is to upset the City Manager”?

I will follow up with appropriate parties.

Morning Shu
Address
Phone number

__________City’s Reply to My Initial Letter__________

From: “Thygesen, Sharon”
Sent: 07/23/2010 08:05 AM
To: Morning M Shu
Subject: RE: City of Berkeley RFP Process

Hi Morning,

I have investigated your concerns. I have listed your questions below for your easy reference.

1) What is the City of Berkeley’s “standard” process for evaluating and awarding contracts?
2) What were the criteria used to evaluate the Measure E Contract applications?
3) Why is the City negotiating with two of the three vendors (who made it through the first cut) to “split” the contract–in an effort to accommodate one applicant’s “alternate proposal”?
4) If the alternate proposal is being considered, shouldn’t the RFP be re-issued?

1. Standard Evaluation Process
The City does not have a “standard” process for evaluation of proposals. The Request for Proposal process is intentionally flexible to ensure the City is able to contract with the vendor that is best suited for the needs identified.

2. Evaluation Criteria
The evaluation criteria are outlined in the RFP section IV on page 5 as you noted in your email. The preliminary scoring you refer to did not include all the criteria in the RFP. The Panel had not yet heard the oral presentations nor checked references, so that was not part of the evaluation, at that point. The initial scoring process was used for the sole purpose of determining which agencies would be invited to make a presentation to the evaluation panel. The final scores were the only scores used to formulate the Panel’s funding recommendation and are based on the entire RFP criteria.

3. Contract Negotiations
The City’s RFP process specifically allows us to negotiate with vendors and award portions of the contract to more than one bidder. Please refer to the boilerplate I sent you. In it you will see the following: “The City retains the right to award all or parts of this contract to several bidders, to not select any bidders, and/or to re-solicit proposals.” It is not unusual in the RFP process to result in an award of portions of the work to one or more proposers or to suggest they partner to provide a more comprehensive set of services.

4. Re-Issuance of the RFP
It is not necessary to re-issue an RFP unless the scope of service is dramatically changed. In other words, if we had asked for proposals for services for disabled residents and then changed the scope to youth services, we would need to re-issue the RFP. In this case, the scope of services the City is seeking to contract out is unchanged.

In addition to the formal questions your email poses, you raise some additional concerns. First, you raise the concern that the staff report written by Mr. King makes reference to CIL’s track record. Staff reports routinely include background information. In fact, CIL’s track record is part of the evaluative criteria which includes the capacity of the agency to provide the service. Second, you raise concern that the Fire Chief was prevented from providing EDI a letter of reference. I have not had an opportunity to speak to the Fire Chief, but ordinarily the City discourages staff from providing a reference letter to a vendor, as it could appear the City has a bias and is giving one vendor an unfair advantage in the RFP competition. It is appropriate for bidders to include contact information of city staff who monitor existing or former contracts the vendor has with the City. Information about contract performance is useful in the evaluation of the bidder’s capacity to provide the service called for in the RFP. Lastly, you suggest that posting of proposals during the evaluation and negotiation phases of this process is a practice the City should encourage. However, the City intentionally avoids releasing proposals or information about the negotiations until Council awards a contract to the successful bidder. The process is designed to minimize outside influence and to maximize the City’s ability to negotiate for services. Council ultimately gets to decide which agency to award the contract to and it will take into consideration the review panel’s recommendation as well as input it receives from interested community members.

I appreciate you bringing your concerns to my attention. I have not found anything which leads me to believe that the process was flawed. It afforded vendors a fair and open playing field on which to compete for the City’s contract for these services. I understand that Council has extended EDI’s contract to provide an opportunity to obtain input from the Commissions on Disability and Aging and to hear the concerns of community members. I also understand that EDI and CIL are currently in discussions with the City Manager on ways to collaborate and I am confident that the process will result in a contract that will serve the needs of Berkeley residents.

Please let me know if you have any other concerns.

Regards,

Sharon Thygesen, General Services Manager
City of Berkeley – Finance Department
510-981-7329 Desk
510-981-7390 Fax
510-867-1620 Cell
Website – www.cityofberkeley.info
sthygesen@cityofberkeley.info

My response to the City’s reply

__________My Initial Letter to the City of Berkeley__________

From: Morning.M.Shu
Sent: Sunday, July 18, 2010 3:00 PM
To: Thygesen, Sharon
Cc: Hogan, Ann-Marie
Subject: City of Berkeley RFP Process

Re: RFP Specification No. 10-10497-C for Emergency Services for Residents with Severe Physical Disabilities

Hi Sharon,

Thank you for sending me the City of Berkeley’s RFP Boilerplate; I have since obtained the Measure E RFP. I appreciate your willingness to understand and ask questions during our phone conversation on 7/15. As you suggested, I have put together a list of facts (public information) for your reference. My questions are related to policies/procedures & process: What is the City of Berkeley’s “standard” process for evaluating and awarding contracts? What were the criteria used to evaluate the Measure E Contract applications? Why is the City negotiating with two of the three vendors (who made it through the first cut) to “split” the contract–in an effort to accommodate one applicant’s “alternate proposal”? If the alternate proposal is being considered, shouldn’t the RFP be re-issued?

The Selection Criteria stated in the RFP #10-10497-C (section IV on page 5) are:
1. The firm’s written response to the RFP’s Scope of Services and other requirements, drawing on its experiential track record, including a demonstrated capacity to effectively deliver services and manage resources in a consumer-based setting (60 percent)
2. Cost Reasonableness (25 percent)
3. Oral Presentation, possibly followed by questions (10 percent)
4. References (5 percent)

The Community Services & Administration Manager of City of Berkeley Housing & Community Services Dept., Drew King, stated the following at the June 9th Commission on Disability Meeting:

1) The initial scoring process produced the below scores for each applicant: Easy Does It (EDI) 156, Center for Independent Living (CIL) 140, and People on the Move (POTM) 137 – a 16-point difference between EDI and CIL

2) A second set of scores were produced after response to written questions, oral interview, and further evaluation: CIL 180, EDI 169, POTM 133 – an 11-point difference between CIL and EDI

We don’t know what criteria were used by the Review Panel to make the final recommendation; we do know the following facts:

a) The recommendation was not unanimous; one of the panel members wrote a letter to her Council Member urging him to support EDI instead of CIL.

b) Mr. King told the Exec Director and the Board of EDI, as well as stated at the Commission on Disability meeting on June 9, that the Panel would support a decision to award the Contract to either vendor–however, this information was not included in the recommendation letter.

In his letter to the Commission on Disability & Commission on Aging, Mr. King stated the Panel’s RATIONALE FOR RECOMMENDATION: “Due to Center for Independent Living’s history of leadership in the community, and strong management track record, the panel recommended CIL as the better choice to provide the Measure E services than EDI…”, none related to the criteria published in the RFP.

Public events involving the RFP process for Measure E Contract

  • April 7 Pre-Proposal Meeting
  • April 27 Proposal due
  • May 6 Oral presentation
  • An agenda item to award the contract to CIL was placed by the City staff on the June 1st City Council Meeting agenda. On May 25, due to a deluge of phone calls and letters from community members to the Mayor and Council Members, the agenda item was changed to extend EDI’s contract for 4 months, while the City “receive community input”.
  • June 1 City Council Meeting–community members spoke at public comment period in support of EDI retaining the contract
  • June 9 Commission on Disability Meeting–large number of community members came out to support EDI retaining the contract, and express concerns about the recommended vendor’s ability to provide emergency services.
  • June 22 City Council Meeting–Council Members unanimously voted to extend EDI’s contract for 6 months, instead of proposed 4 months.
  • June 23 Commission on Aging Meeting
  • July 14 Commission on Disability Meeting–due to lack of quorum, the Commission was not able to vote for a recommendation. Community members were again there to support EDI, and had a good discussion with the Commissioners. CIL’s contract representative announced its “alternate proposal”, stating that they do not want the attendant and transportation components of the Contract that were included in their initial application. When the process question was raised, City personnel was not able to explain whether CIL’s alternate proposal qualifies other applicants to modify/resubmit their proposals.
  • July 15 (At the City Manager’s request in June) EDI and CIL representatives met to discuss collaboration possibilities, with City personnel in attendance–Phil Kamlarz, Jane Micallef, Drew King, and Jennifer Vasquez. The Exec Director of CIL emphasized that they never wanted the attendant and transportation components of the Contract, which are the core services mandated by Measure E. They want to “leverage” their wheelchair repair service program (being developed using a new grant from FEMA) to provide emergency wheelchair repair service–realizing that EDI is best suited to provide onsite and “after hour” emergency repair, as it often overlaps with emergency attendant & transportation calls. The discussion ended with the City Manger instructing the two vendors to work out a solution.

Other events related to the RFP

  • EDI asked the City’s Fire Chief to be a reference in its proposal, since they have worked very closely together. The Chief, who initially gladly agreed, later called to tell EDI that she was told by the City Manager that she could not be a reference for EDI because the City needs to remain neutral. Yet, other City staff were allowed to be references for CIL in its proposal.
  • After EDI posted its proposal (including budget summary) on its website, CIL had to post its proposal (without budget information) online in response to pressure from the community. Many people have compared the two proposals and made comments in public forums; one Council Member even said in the June 22 Council Meeting that “if you have read both proposals as I have, you would know how to vote”.

As you said to me on the phone, the RFP process should not be political, and that’s why we pay staff to do the evaluation & make recommendations to the decision making body. I am extremely concerned about the integrity of the process, based on my own experience with the Measure E Contract selection process thus far… How can the citizens of Berkeley feel confident that the City is acting as a responsible steward of our public dollars, if its RFP process appears to have become part of a political process?

Morning Shu
Address
Phone number

City’s reply to my initial letter