A selection process for a $1.2 million lighting contract that one bidder called “a rigged carnival game” contained specifications issued by the city that could only have been met by the maker of the LED light that won the contract, potentially flying in the face of state and federal law.
In a request for quotes (RFQ) dated Aug. 22, 2011, city officials made a list of requirements they wanted in LED lights that would be paid for through a U.S. Department of Energy grant, but some requirements were so specific that only one light could possibly fit the bill.
The bids submitted ranged from $355.35 to $1,193 per LED light, but the work went to the second highest bidder on the list.
WESCO Distribution, which bid $1,070 per light, was awarded the contract. The city put up 1,144 lights, which meant WESCO Distribution was paid $1,224,080 for the project, according to city records.
The bid records obtained by Lagniappe for this story were only provided by the city after nearly three months of requests. Initially the city sent a single document that said WESCO had won the bid. Questioned further as to who the other bidders were, the city eventually sent over two pieces of paper with the 23 bidders hand-written, claiming it was the only document that existed. Eventually, after continued requests, the city provided the full file for the bid.
In reviewing the RFQ, it appears to have been written in a way that would be consistent with purchasing an item based on proprietary qualifications rather than performance. A proprietary RFQ can only be used under specific conditions, according to state and federal law. Most of those specifications deal with safety issues, but those do not apply to the restrictive requirements used in this RFQ. A proprietary RFQ is so specific that it essentially ensures an exact make, model or manufacturer will win the bid.
For example, under a proprietary RFQ for police vehicles, a person writing the RFQ could copy and paste the specifications from a vehicle like a Dodge Charger. Then, any company bidding something other than that specific would not be able to meet the exact requirements such as weight and abilities. That means the Dodge Charger would have to be selected.
The RFQ for the LED lights appears to have been treated this way by the city, as several lower bids were kicked out because they did not meet some very specific criteria.
According to the city RFQ, the light selected needed to “meet or exceed a 2-foot-candle average radius,” be able to be spaced out 150-feet along the road, weigh no more than 50-pounds and have a specific maximum effective projected area of “1.44-square-feet.” Several of the lights bid met or exceeded the 2-foot-candle average radius requirement, and were lower in price, but were not selected.
The requirement that the light have an effective area of exactly 1.44-square-feet appears to have ensured only the Cooper light selected could have been chosen. The effective projected area (EPA) is in reference to how much wind the light can withstand. Being that Mobile often deals with hurricane winds, this is important. However, the RFQ states the EPA should be specifically 1.44-square-feet. It does not state it should meet or exceed, which would make for a light that could withstand more wind, thereby eliminating a better light.
Also, at the time of the RFQ’s issuance, the only light tested to see if it could withstand a 3,000-hour salt spray test, which test its waterproofing, was the Cooper light. The city’s specifications call for a light able to “withstand a 3,000-hour salt spray test as specified in ASTM designation: B117,” which exactly meets the Cooper specs.
Though city bid records do not mention any of the bidders being rejected for the salt spray test and EPA requirements, they appear to have played a role in the process as six of the rejected companies bid lights that were cheaper than those offered by WESCO and in fact met or exceeded the 2.0-foot-candle average. Even though the RFQ said lights could “meet or exceed” the 2.0 average, according to city notes on the bids, those six were all rejected for not coming in exactly at that number.
For instance, a light by Stuart Irby Co. that would have been $607.64 actually had an average of 2.1-foot-candle — above the RFQ mark — and it was also not considered because it didn’t come in right at the 2-foot mark. Had that bid been accepted it would have saved nearly $530,000.
A to Z Moni-Dot was similar to Stuart Irby Co. and had an average of 2.12-foot-candle, but was also not accepted because it exceeded the requested average. The difference of 0.1-foot-candle means a light can be seen 1.2-inches further. The lights also can be adjusted to illuminate a desired area.
No other notes provided by the city showed any other reason why those particular bids were thrown out. However, the lights from Stuart Irby Co. and A to Z Moni-Dot did not specifically meet the salt spray test or the specific maximum effective projected area of 1.44-square-feet.
The two specifications do not appear to fall into the exceptions for proprietary RFQs laid out by state and federal law.
Interviewed for a previous story on this, City Attorney Larry Wettermark assured the process was fair, but offered several caveats.
“The city has received a lot of complaints I know,” he said. “From my understanding, and this is a broad brush on the project, this was a complex process that had a specific color, radiance arc, etc. Many city departments worked on this and at the end of the day the lowest responsible bidder that met the specifications was selected.”
However, several of the bidders disagree. An anonymous bidder told Lagniappe earlier that he feels the process was manipulated.
“It’s like this is some sort of rigged carnival game,” he said. “You have a light I see that is $607.64 and it is (0.1-foot candle) over the average and it doesn’t get selected over a $1,070 bid because it doesn’t meet 2-foot-candle specification. It’s absolute insanity.”