Wyoming Executive Branch Maneuvered To “Escape Competitive Bidding” in Capitol Building Renovation

Today, Rep. Gay proposed a joint resolution, relating to the state capitol project, in which he called for an investigation regarding contract bids, the letting of contracts, and potential conflicts of interest relating to the project.

Gay’s resolution lays the responsibility for the abuses squarely on the shoulders of Governor Mead. The resolution reads in part: WHEREAS, the Governor of the State of Wyoming and the Attorney General hold the statutory responsibility of overseeing compliance with the procurement statutes contained in the Wyoming Statutes. In holding the Office of Governor and the Office of Attorney General, the Governor and Attorney General respectively, are entrusted with the responsibility for ensuring compliance with the Wyoming Constitution and the statutes relating to procurement.

Also, in an open letter to the 63rd Wyoming State Legislature (read below), Wyoming resident, Kevin Lewis exposes the amounts of bid waivers this biennium, and the many maneuvers to escape competitive bidding used by the executive branch. A bid waiver is documentation that competitive bidding did not occur.

Open Letter to the 63rd Wyoming State Legislature:

Dear Representatives and Senators of the Wyoming Legislature,

I write to you on this day of February 11, 2016

Please find in attachments, documentation of the failure to competitively bid many contracts associated with the Capitol Square Project. I have a client that wanted information on a government contract in Wyoming and knew that I could navigate the bureaucracy to gather that information. In that process, I found that the bid waivers of Wyoming contracts are published on a web site managed by the Department of Administration and Information, Procurement Division as required by law.

A bid waiver is documentation that a competitive bid process did not take place. This is rarely justified when there is only one entity that can do the work. Membership fees in an organization such as the National Governors Association would be an example of not competitively bidding the service as only one such organization exists.

State government has become prolific in not competitively bidding contracts. There is currently documented $591,148,061.86 waived from the process of competitive bidding in the executive branch of government in the current biennium. The spreadsheet downloaded from the procurement bid waiver site is attached and was downloaded this morning. These waivers of competitive bidding do not include the Legislative Service Office, University of Wyoming, Department of Transportation, or the Wyoming Business Council.

There are a few data errors on the bid waiver page of the Procurement Division. There are also many maneuvers to escape competitive bidding used by the executive branch. Often, an amendment to an existing contract is employed to escape having to write Requests for Proposals to engage in the competitive bidding process. Change orders can often be used in this manner as well. The procurement laws allow for contracts to be let without competitively bidding, but too often the executive branch employees find easy excuses to not go through the process and that is clear in the over half billion dollars of documented bid waivers.

The Capitol Square Project has a substantial numbers of contracts that have documented failures to competitively bid contractual work. I made a Public Records Request to the Department of Administration and Information to gather documentation of the bid waivers and contractual documents. There are to say the least, many issues that arise in those documents. Please note that requesting documents does not equal receiving documents. The documents that I did receive probably are around 80% of what was requested. There is enough to establish patterns of behavior concerning the Capitol Square Project.

Article 3, Section 31 of the Wyoming Constitution clearly states what is to be done to maintain the spaces of the legislature.Article 3, Section 31 of the Wyoming Constitution provides that:

All stationary, printing paper, fuel, and lights using in the legislature and other departments of government shall be furnished, and the printing and binding of the laws, journals and department reports and other printing and binding, and the repairing and furnishing the halls and rooms used  for the meeting of the legislature, and its committees shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as may be prescribed by law. No member or officer of any department of the government shall be in any way interested in any such contract; and all such contracts shall be subject to the approval of the governor and the state treasurer.  (Emphasis added).

There are contracts such as the JE Dunn contract that do not have a maximum price. More than $225,000,000 ($225 million) that have documented bid waivers according to the Department of Administration and Information, Procurement Division and contained in the documents of the Public Records Request. No contract has been approved by the state treasurer.

I will not speculate on any interest in any such contract. However, the founders who served as delegates in the first Wyoming Constitutional Convention were wise to specify the competitive bidding of contracts alliterated in Article 3, Section 31. Further, the founders were wise to not concentrate power in one person but require both the governor and state treasurer to approve contracts. The work they did ensured that separation of powers in Article 2, Section 1, would be maintained.

I would also bring to your attention that there appear to be connections between contracts and the financing of campaigns. I would encourage the legislature to investigate this situation of the leasing of the Jonah Building. It appears that monies flowed to the governor’s campaign far in excess of the campaign limits set by law from the lessor of the building.

Lastly, the responsibility for the failure of the Capitol Square Project to adhere to the provisions of the constitution and procurement statutes lies with Governor Mead and the other members of the State Capitol Building Rehabilitation and Restoration Oversight Group. Legislative members of the committee are Representative Kermit Brown, Sen. Phillip Nicholas, Representative Tim Stubson, Representative Mary Throne, Senator Eli Bebout, Senator Chris Rothfuss, Senator Tony Ross and Representative Rosie Berger. Certainly the governor is responsible by law for contracting in Wyoming government. But in the Capitol Square Project, the Capitol Rehabilitation and Restoration Oversight Group is responsible for approving any change order in excess of $100,000 or in a cumulative amount in excess of $1,000,000 according to Wyoming Statute 9-5-112 (f). There are very few attorneys in Wyoming with the understanding of procurement law as held by Senator Nicholas.

I ask that the Legislature take steps to return to constitutional management of the Capitol Square Project as well as put integrity back into the spending of precious taxpayer resources in the executive branch of Wyoming government through the appointment of an independent investigator.

Kevin Lewis
Cheyenne, Wyoming
Delivered by Email to the Legislators of the State of Wyoming

Attached:
Bid Waiver Spreadsheet Downloaded 2_11_16

Links to documents:

Bid Waivers on the Department of Administration and Information Procurement Site

https://docs.google.com/spreadsheets/d/1SUHvM09Qk-bWyDFmJ5m2Ax2-ZBcbleClq3fwr6c85Wo/edit#gid=0

All Documents received by Public Records Request

https://drive.google.com/folderview?id=0B389g-3pbpIBUEhwSXBvUW9Hazg&usp=sharing

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