Ballard Administration Claims It Can't Release RFP For Criminal Justice Center Because It Doesn't Exist

Indiana state law could not be more clear on this point. Indiana's Public-Private Agreements Act, the statutory authority on which the Ballard administration is relying to enter into an agreement to build, operate and maintain a more than half billion dollar criminal justice center, requires a Request for Proposal subject to the state's public notice requirement. Incredibly, the naïve pretty boy tasked by the Ballard administration with this daunting task told members of the City-County Council's Rules & Public Policy Committee this evening that it had no "final" Request for Proposal the administration supposedly issued to three bidders on April 25 it chose during earlier secret discussions conducted during a Request for Information process last year.

According to mayoral assistant David Rosenberg, there is no final iteration of the RFP that the administration has been discussing with the three bid groups for the last five months despite the fact that it plans to choose a winning offer in November and present a final 35-year agreement to the council for approval by February of next year. We're to believe that the RFP is being drafted on the fly in a collaborative process with the bidders as the secret discussions with the bidders take place. Rosenberg assured council members this process, while lacking in transparency, protected the public because of the alleged "competitive tension" created by this unique, if illegal public bidding process.

The council's counsel, Fred Biesecker, saw the legal explanation offered by Rosenberg and Ballard's new Deputy Mayor for Economic Development, Adam Collins, as the hogwash it was. Even more interesting was Biesecker's discussion of a memorandum prepared by an attorney at Bingham Greenebaum Doll, one of the law firms awarded a multi-million legal contract to work on the deal in violation of state law because the council never appropriated money in this year's budget for the criminal justice center project. In the August memorandum, Biesecker said the attorney at Bingham had claimed that state law allowed the administration to withhold the RFP from the public until the discussions with the bidders was concluded. In fact, the law provides the exact opposite.

By way of disclosure, I worked at Bingham many years ago and specifically worked on the drafting of the Public-Private Agreements Act for the City of Indianapolis so I know a little about what this law requires. The day of the first hearing on the legislation, a young reporter for the Indianapolis Star-News, Cam Simpson, walked into the committee room and held up a copy of the latest edition with a front-page headline for a story he authored blaring words to the effect, "Bill Would Let Mayor Negotiate Privatization Deals in Secret." Suffice it to say that the Hoosier State Press Association's attorney, Stephen Key, became very involved in drafting changes to the law, one of which specifically required a public RFP process. How an attorney at Bingham could now argue the law means something entirely different now is probably something only an attorney billing at an exorbitantly high billable rate at taxpayers' expense could explain.

Allow me to explain the provisions written into the law to specifically address the Hoosier State Press Association's concerns.

• Any governmental body entering into a Public-Private Agreement MUST request proposals. I.C. 5-23-5-1.
• Proposals SHALL be solicited through a request for proposal process, which must include: the factors or criteria used in evaluation proposals; a statement concerning the relative importance of price and the other evaluation factors; a statement stating whether the proposal MUST be accompanied by evidence of financial responsibility; and a statement concerning whether discussions may be conducted with the offerors for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements. I.C. 5-23-5-2
• Notice of the request for proposals SHALL be given by publication in accordance with I.C. 5-3-1. I.C. 5-23-5-3.
• Discussion with the offerors are permitted during the RFP process for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements. I.C. 5-23-5-4.
• Eligible offerors MUST be accorded fair and equal treatment with respect to any opportunity for discussion and revisions of proposals. I.C. 5-23-5-5.
• A governmental body MAY refuse to disclose the content of PROPOSALS while the RFP process is underway. There's nothing in the law allowing the withholding of the RFP document itself. I.C. 5-23-5-6.
• A governmental body SHALL negotiate the best and final offers of responsible offerors who submit proposals that are determined to be reasonably susceptible of being selected for a public-private agreement. I.C. 5-23-5-7.
• After best and final offers are negotiated with the offerors, then the governmental body either makes a recommendation to whom a public-private agreement will be awarded or terminate the RFP process. I.C. 23-5-8.
• If a recommendation to award a public-private agreement is being made, notice of a public hearing on the recommendation SHALL be provided. I.C. 23-5-9.
• Finally, a copy of the proposals and a written statement describing the basis upon which the recommendation to make an award is being made SHALL be made available for public inspection and copying. I.C. 23-5-10.

The law is clear as day. The RFP MUST be made available to the public when the RFP process commenced, not at the tail end of the process when the administration is ready to choose a winning offer. It is absolutely beyond me why the media in this city remains silent and takes no legal action to compel the administration to comply with the law its trade organization demanded be written into the law when the Public-Private Agreements Act was enacted. The only reason the Ballard administration would not publish a final RFP at the outset of the process is if it is resorting to subterfuge to hand the winning proposal to one of the three finalists under consideration, which means it knew when it secretly chose the three eligible offerors to compete in the RFP process which one would be awarded a final offer. That's precisely the tactic employed by Mitch Roob when he was Secretary of FSSA to ensure that his former employer, ACS, was awarded the welfare privatization contract. Roob made his intentions so clear in advance that nobody bothered to compete in the end against the offer made by the IBM-ACS team. And we all know how well that turned out. If the RFP is not made public at the outset, there is no way of ensuring that the competing offerors are being accorded "fair and equal treatment" as mandated by the law.

As I previously discussed, the management of the Indianapolis Star, the IBJ and each of the television news stations all sit on the board of the Greater Indianapolis Progress Committee, the shadow government that meets in secret and decides public policies to be pursued. Last December, GIPC unveiled the plan to build a new criminal justice center through a P3 arrangement. Only GIPC's board members know why they deemed it preferable to pursue a P3 arrangement rather than refurbish existing buildings or at least build, own and operate our own criminal justice system instead of an irrefutably costlier method of relying upon private profiteers. Incidentally, the existing City-County Building site was designed to accommodate future expansions, a fact that seems to have gone missing by those running this process. Since the unveiling last December, the local media has had nothing but glowing comments for the concept, which initially recommended a site on the far western edge of the county next to the Indianapolis International Airport, an idea since abandoned in favor of a new site at the former GM Stamping Plant due to outrage expressed by the very stakeholders the Ballard administration claims it's been consulting all along.

The most outlandish claim made to date by the Ballard administration was repeated this evening by Rosenberg--that essentially a private developer can deliver a brand new, state-of-the-art criminal justice center for not a penny more than the $122 million the administration claims we are currently spending annually to support existing facilities. Yes, you can trade your modest $100,000 home in Irvington for a $1 million home up on Geist and not pay a penny more for it. Call up your realtor and make that deal today before it's too late. As Rosenberg told the committee this evening, there is grave concern that interest rates will rise and costs increase unless the council acts the first thing next year to approve whatever it is they are currently negotiating in secret.

We're also learning more details that suggest the plan is being scaled back considerably to make that bold pronouncement about not costing a penny more. The juvenile detention center won't be included in the new site. While office space will be made available for the prosecutor's office and the public defender's office at the new center, other criminal justice-related agencies, such as forensic lab services and property control room, will continue to be maintained off-site. Discussions about the inclusion of other criminal justice agencies are still being debated. Supposedly, we're going to save a bunch of money by having a larger jail built than we really need at the new site so we can rent space to the feds for their detainees. The sheriff's department, incidentally, doesn't utilize all of the existing space in Jail II operated by CCA, which rents out the balance of the space to the feds for immigrant detainees. We're also supposed to see great savings from transportation-related costs. I'm still trying to understand why the Marion County criminal courts refuse to utilize video conferencing for inmates' initial hearings like every other modern court system does. But, hey, that would negate the argument for having the jail housed at the same complex as the criminal courts, wouldn't it?

Oh, and we got an idea of what kind of work Bose Public Affairs Group is performing for its $750,000 contract to promote the project. Lobbyist Greg Hahn appeared at this evening's hearing, well-tanned from many hours on the golf course, to introduce Rosenberg to the committee. Hahn's a Democrat. Rosenberg works for the Republican mayor who awarded the $750,000 to his former mayoral assistant, John Cochran, also a Republican who now works for Hahn at Bose. Get it? Nice job, Greg.

UPDATE: Fellow blogger Pat Andrews had disappointing news of action later taken by the Rules & Public Policy Committee to table a proposal that would have cancelled the more than $12 million in no-bid contracts the Ballard administration entered into for the criminal justice center project in clear violation of state law. Councilor Angela Mansfield, the sponsor of the proposal, voted against tabling it. Other council members were reached. When the council lacks any backbone to stand up to this unethical administration, there is nobody left to protect the public. The federal and state prosecutors in this town sure as hell aren't worth a damn when it comes to holding corrupt city officials accountable for their criminal conduct. Perhaps that was the real reason for Hahn being at the meeting--to lobby against the cancellation of his firm's $750,000 contract on our dime. Only in Indianapolis.
Video showing legal discussion of RFP process