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Bugs in the system The Peyton Administration pushes ahead with a controversial no-bid landfill contract, despite concerns about its legality

By Susan Cooper Eastman

Its got to be the money. Only cold hard currency could explain why the Peyton administration is so gung-ho on waiving city law to award what may be the biggest nobid contract in city history and doing so under threat of lawsuit. If the city of Jacksonville gives Waste Management the 35-year contract to manage the Trail Ridge Landfill off U.S. Hwy. 301 on the Westside, it <<will>> realize a significant short-term cash infusion. Waste Management

would bear the cost of closing the current landfill cell, which would free up money the city has been setting aside to pay for the closing (*at least $10 million). The city would also save on tipping fees for the next few years. Indeed, the city was so confident that the contract would sail through the City Council that it figured those savings in the *2008-09 budget. Council approval no longer seems like a sure thing, however. Several council members have expressed reservations about waiving city code, which requires competitive bids for any public project over $50,000. Others have chafed at the overt threats by Waste Management attorney Paul Harden, who has promised years of litigation if the city doesnt rubber stamp his clients deal. (He told the city sue until the cows come home if he doesnt get his way.) But the problems that attend the Trail Ridge proposal go beyond that. Attorneys for Republic Inc., competing waste *company who wants to bid on the contract, point out that no-bid contracts were the sort of thing Peyton promised to avoid in an open letter to the community in

August 2007. Peyton made his public overture after critical news coverage and a subsequent State Attorneys Office investigation into lucrative no-bid contracts awarded to two of his close friends. One deal, a $550,000 no-bid contract given to Peytons former chief of staff Scott Teagle, even drew some FBI inquiries this year. Peyton didnt award the contracts himself, but he did promise sweeping changes to ensure such things didnt happen again. Most of all, he promised to tighten the bid process and to create greater transparency in the awarding of contracts, so that the public knows more about vendors and project costs. That new rigor hasnt applied at Trail Ridge. The ordinance authorizing the deal gives no indication of the cost of the contract $750-million, more than twice current estimates for the new county courthouse an omission that makes it far easier to for the bill to fly under the publics radar. Even in its attempt to circumvent standard bidding procedures, however, the city seems to be on shaky

legal ground. The administration cites an exemption in its procurement code that allows the city to waive bid requirements if a piece of legislation authorizes the waiver (which this does) and sets aside money for the contract (which this doesnt). The city has used the clause numerous times in the past. But according to a two-page list of contracts based upon the clause provided by the citys General Counsels Office, the Trail Ridge deal is the only one that doesnt appropriate funds. Whether or not its good public policy to have that exemption is another matter, says Thomas Ingram, an attorney with Pappas Metcalf Jenks & Miller, which represents Republic. But the issue here is, does it even qualify? There is no [$750-million] appropriation in this legislation. They <<dont have>> the money. The citys incorrect use of the exemption is the sort of fact that Republics attorneys will likely bring up in their own lawsuit, which they have promised to file if the contract is awarded without bids. The attorneys also question whether Jacksonville officials can

legally waive the purchasing code in order to award the contract to a specific contractor. They cite a 1992 ruling by the First District Court of Appeals (which stemmed from a lawsuit over the citys original contract with Waste Management) which says that the city cant waive code in order to help a particular recipient get a contract. In that case, the court ruled, such a waiver would render the competitive bidding process a nullity. The administration is [trying] to avoid the bidding process and bargain away competitive procurement for short-term benefits, says Ingram. Our position is that the city doesnt have the legal authority to do that. Although the lobbying of the City Council has just begun in earnest, chances that the measure will pass seem uncertain at best. Only Art Shad supports the nobid deal, telling the Times-Union its a shining example of whats good. Others say they would have to have a really compelling reason not to follow the citys purchasing code. And some, like Jack Webb,

Glorious Johnson. John Crecimbeni, Bill Bishop and Clay Yarbrough, flat-out oppose the plan. I dont see why its so all-fire important we sign a (35-year) deal when so many things can happen in (35 years), says Councilmember Bill Bishop. I dont think its good public policy. The ordinance is currently being reviewed by the City Council Auditor, and Council President Ronnie Fussell is exploring whether to form a special Trail Ridge subcommittee to examine the deal.

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