City officials have warned the City Council it has a simple choice with next week’s KCI terminal vote: Follow the recommendation of the committee formed to choose a contractor, or start over again.
Despite the controversy triggered by last week’s surprise selection of Edgemoor Infrastructure and Real Estate of Bethesda, Md., the council does not have the option of voting for the committee’s second choice, AECOM of Los Angeles, City Manager Troy Schulte said.
He said attorneys have advised members that city procurement law requires Edgemoor get a “fair and equal” opportunity to negotiate a development agreement with the city.
“The City Council can’t say, ‘Well we don’t like that one so we want to pick another one,” Schulte said in an interview Thursday. “Essentially, what they would be doing is circumventing the selection process established by ordinance.”
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Such a move, he said, would almost certainly lead to a lawsuit from Edgemoor.
Re-starting the process would push selection of an airport developer far beyond the Nov. 7 election — assuming voters approve the proposal. Bidders would have 90 days to answer a new request for proposals, Schulte said. That means voters would likely be asked to greenlight the $1 billion project without seeing even an artist’s rendering.
Schulte’s analysis was disputed by Councilman Quinton Lucas, who called it “if not plainly incorrect, at least quite imprecise as a legal matter.”
Lucas said in an e-mail that his reading of state and local law, along with the city documents, suggests that the council has broad discretion in its choice of bidders.
“This means that if, for example, the council were to weigh a factor as more important than the selection committee (such as community benefit agreements) nothing prohibits council from reviewing the proposers’ answers in that area and selecting a different proposer,” said Lucas a professor at the KU School of Law.
He added he has requested but not received a written opinion from city lawyers on the question.
“My colleagues and I want to support the selection committee choice,” Lucas said. “We also think it is important we do our jobs and thoroughly review the choice to ensure it is in the long-term best interests of the city and the flying public.
“If it is not, then we will evaluate all choices available to the Council. This is a generational choice and it won’t be made under duress.”
Edgemoor emerged last week as the winning choice by a panel of council members and city officials, beating out AECOM and hometown Burns & McDonnell for a chance to develop the project — the largest public works venture in the city’s history.
Some council members not on the committee raised questions about Edgemoor’s transparency — it was the only competing firm that did not share drawings or other details of its proposal. They also questioned its commitment to hiring minority and women-owned firms as subcontractors.
On Tuesday a coalition of civil rights and black business leaders threatened to withhold support for November’s ballot question without a binding commitment that 40 percent of subcontracting firms on the project be minority-owned and that an equal proportion of the overall workforce be minorities.
Council members are also pressing for more information on the selection committee’s deliberations, including a “decision matrix” outlining exactly how it weighed the merits of each proposer
Edgemoor managing Geoffrey Stricker has spent the last few days reaching out to businesses and civic groups in an effort to quell concerns. But a final decision remains far from clear.
“I don’t think Edgemoor has the lock yet,” said Councilwoman Teresa Loar.
Councilman Jermaine Reed, a member of the selection committee, said he stood by the panel’s choice of Edgemoor.
“I have to say that I really don’t think there is much of an appetite to start over, for me or my colleagues on the council,” Reed said in an email from Chengdu, China, where he is leading a delegation from the National League of Cities. “A lot of hard work and resources have gone into this process.”
Meanwhile, the other bidders are still in pursuit.
Burns & McDonnell, disqualified by the committee for provisions in its proposal that officials said violated the city’s bond ordinance, continues to hold 13 minority and women-owned firms to agreements that keep them from negotiating with Edgemoor. The company signed the firms to the pacts this summer to strengthen its bid as the “hometown team” competing for the project.
Burns & McDonnell vice president Ron Coker said that until the city actually reaches a legal memorandum of understanding with an airport developer, the company regards itself as still in the running.
“The selection process is still on going in our minds,” Coker said. “We don’t agree with the disqualification by the selection committee.”
The company’s position drew criticism from Councilwoman Alissia Canady, who said it was “not consistent with the collegial nature of the business community in Kansas City.”
Schulte called the company’s decision “frustrating” and expressed concern that it will complicate Edgemoor’s efforts to reach diversity-hiring goals. The companies it has tied up are the most qualified minority and women-owned firms in the region.
“My hope is that Burns & McDonnell release everybody and that we move forward and try to get the deal done with Edgemoor,” Schulte said.
Several owners of minority firms said this week they had no objection to remaining under the terms of the agreement.
“Our position is that as long as Burns & McDonnell is in the hunt we will be there with them,” said Ajamu Webster, CEO of DuBois Consultants, a civil and structural engineering firm.