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Discussion Starter · #2 ·
"Q13: Did this delay cause confusion for any potential bidders?
Yes. Although the DWR openly referenced its plan to issue the RFP, one organization was unaware of that statement and submitted a proposal directly to the DWR. That proposal was from Rocky Mountain Elk Foundation (RMEF), and it was delivered on Sept. 1, 2015. Because the proposal was submitted outside the RFP process, the DWR encouraged RMEF to resubmit a proposal when the RFP was open. RMEF later submitted a proposal in accordance with the terms of the RFP.
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Does anyone else read this statement to mean that SFW did NOT in fact submit a bid to host the expo this year in keeping with the DWR's originally stated administrative rule(which they obviously didn't follow)?
 

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[QUOTE Does anyone else read this statement to mean that SFW did NOT in fact submit a bid to host the expo this year in keeping with the DWR's originally stated administrative rule(which they obviously didn't follow)?[/QUOTE]

That's exactly what it means!
 

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Q5: Where does the money from the application fees go?
Hunters are charged a $5.00 per-permit application fee when they apply in the expo permit drawing. The DWR must approve in advance how 30 percent of these funds are spent. Expo organizers must spend the remaining 70 percent on policies, programs, projects and personnel that support conservation initiatives in Utah. All of the application fee revenue benefits wildlife conservation in Utah.

So according to the DWR if the remaining funds are used for "personnel" its well within SFW's right....that is a huge steaming load of crap. And as far as "policies, progams and projects" are concerned. SFW could make up anything they want and justify it saying it involved "conservation"
 

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[QUOTE Does anyone else read this statement to mean that SFW did NOT in fact submit a bid to host the expo this year in keeping with the DWR's originally stated administrative rule(which they obviously didn't follow)?
Unfortunately, that actually strengthens the DWR's arguments for why they rejected RMEF's initial bid. If the party that at the time held the current contract had also submitted a bid under the old process, then it would have been more likely that the DWR failed to communicate the RFP for the new contract. But, since SFW didn't submit under the old program they must have been aware of the RFP for the new contract. This is a separate issue from if the DWR made sufficient public notice of the switch or not, just to be clear. RMEF's best argument as to the DWR acting arbitrarily and capriciously in throwing out the old selection system just basically got hosed.
 

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Discussion Starter · #6 ·
Unfortunately, that actually strengthens the DWR's arguments for why they rejected RMEF's initial bid. If the party that at the time held the current contract had also submitted a bid under the old process, then it would have been more likely that the DWR failed to communicate the RFP for the new contract. But, since SFW didn't submit under the old program they must have been aware of the RFP for the new contract. This is a separate issue from if the DWR made sufficient public notice of the switch or not, just to be clear. RMEF's best argument as to the DWR acting arbitrarily and capriciously in throwing out the old selection system just basically got hosed.
That makes sense. The conspiracy theorist in me wants to assume that SFW didn't submit a proposal because they didn't think anyone else would and the status quo would be preserved without a fight.

RMEF submitted a bid in the eleventh hour on the day of the deadline and it caught SFW and the DWR off guard. Then, the DWR changed the process to allow SFW to submit a bid under the conveniently timed RFP. The rest is history. Not sure that is what happened, but given what's going on it certainly seems at least remotely plausible.
 

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That makes sense. The conspiracy theorist in me wants to assume that SFW didn't submit a proposal because they didn't think anyone else would and the status quo would be preserved without a fight.

RMEF submitted a bid in the eleventh hour on the day of the deadline and it caught SFW and the DWR off guard. Then, the DWR changed the process to allow SFW to submit a bid under the conveniently timed RFP. The rest is history. Not sure that is what happened, but given what's going on it certainly seems at least remotely plausible.
Question. Doesn't the lack of documentary evidence,before the fact, (meeting minutes, notes, public notices,etc.) that the DWR would be switching to an RFP keep the DWR "on the hook" so to speak against a charge that they failed to follow the administrative rules?
 

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Unfortunately, that actually strengthens the DWR's arguments for why they rejected RMEF's initial bid. If the party that at the time held the current contract had also submitted a bid under the old process, then it would have been more likely that the DWR failed to communicate the RFP for the new contract. But, since SFW didn't submit under the old program they must have been aware of the RFP for the new contract. This is a separate issue from if the DWR made sufficient public notice of the switch or not, just to be clear. RMEF's best argument as to the DWR acting arbitrarily and capriciously in throwing out the old selection system just basically got hosed.
I disagree. What it shows is RMEF should have been awarded the contract based on the DWR's own administrative rule. The administrative rule has the binding effect of law on BOTH the agency and the public. Based on the administrative rule which the DWR does not dispute it violated, RMEF should have been awarded the contract as the only applicant. It's convenient for the DWR to put forth the narrative it has. However, when RMEF submitted the bid to the DWR, the DWR sent a letter that their application did not comply with the rule because they were the only conservation org on the application and the rule required a partner. Basically, the DWR sent a letter saying their application was not valid because the administrative rule was not followed. Then, a week later goes by and the DWR send another letter to RMEF and issues a press release that the expo contract would be submitted to an RFP. If it was always going to be submitted to an RFP why did only SFW know that? Why didn't the DWR contact the conservation orgs and inform them that they were not going to follow their own administrative rule? Why did the DWR originally try to tell RMEF that their bid was not acceptable because of the requirement for a partner org?
 

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Discussion Starter · #9 ·
Question. Doesn't the lack of documentary evidence,before the fact, (meeting minutes, notes, public notices,etc.) that the DWR would be switching to an RFP keep the DWR "on the hook" so to speak against a charge that they failed to follow the administrative rules?
I would think so, but I'm deferring to johnnycake's legal understanding. What you are sayng is certainly what a reasonable person would assume.

Sent from my SM-G928T using Tapatalk
 

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After quickly reviewing the latest contract between the DWR and SFW and DWR's FAQ's regarding the Expo Tags, I am confused and offer the following general response:

1. I don't see any real change in what the groups can do with the 70% they retain from the application fees. The have to use that 70% for "policies, programs, projects and personnel that support wildlife conservation inititives in Utah." What does that mean? Does everything SFW does accomplish those goals? Did they simply draft a provision that authorizes them to do what they were already doing? Can they pay salaries to SFW "personnel" with that money? Can they lobby with that money in an effort to affect "policies"? There is not audit provided for the 70% or for the 30% for that matter. And the annual report provided by SFW to the DWR only covers the 30% that has to be spent on approved projects. The groups have issued statement stating that they will "annually disclose how these funds are utilized to benefit Utah wildlife" and the DWR's FAQ's states that "SFW and its partner, MDF, have committed to annually disclose how 100 percent of these funds are used to benefit Utah wildlife." However, I don't see anything in the rule or the contract that requires any accountability or transparency with the 70% the groups retain. I am going to have to ask around and find out what was intended by the groups and the DWR.

2. After reviewing the "Frequently Asked Questions" prepared by the DWR, it is obvious that they are feeling the heat. I take issue with a number of the statements in that document, and I will prepare a detailed response when I have some time. Just as a preview, consider FAQ #9: "Has the Wildlife Expo Permit Program ever been audited? Yes, the DWR audits the program annually." Once again the DWR is playing word games. Over the years, the DWR has conducted certain "Wildlife Convention Audits." The first such audit was conducted in 2010, four years after the Expo began. In fact the 2010 "audit" states that no formal audit was performed in 2007, 2008 or 2009. More importantly, those "audits" never looked at how any of the application fees were spent by the groups until 2013, when the DWR began to require the groups to spend 30% on actual conservation. The DWR fully understands that the public is concerned about how the money is being spent by the groups and that is why we are asking for an audit. Yet, the DWR is more than happy to simply state, "Yes, the DWR audits the program annually." That statement is confusing and misleading.

I will post a more detailed response when I have time.

-Hawkeye-
 

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Question. Doesn't the lack of documentary evidence,before the fact, (meeting minutes, notes, public notices,etc.) that the DWR would be switching to an RFP keep the DWR "on the hook" so to speak against a charge that they failed to follow the administrative rules?
Part of the purpose of an administrative rule is to inform the public of an agency's process. The administrative rule was ignored in this instance. No amount of "mentioning" an RFP can dispute the fact that the DWR failed to abide by their own rule. In addition, do not forget nor discount the fact that the DWR had just amended this very administrative rule six months prior and it was approved by the wildlife board. The DWR continues to say they "mentioned" an RFP in October 15. Then they amend and change the administrative rule in December/January. Other agencies in the state that award bid contracts have provisions in their administrative rules that specifically reference an RFP in the contract awarding process. Nothing the DWR can say will cure their failure to abide by their own recently amended administrative rule which sets forth the process in awarding the expo contract.
 

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RMEF needs to file a lawsuit and force the DWR who is trying to cover their ass right now to be court ordered to do the right thing. I know RMEF wants to stay above this but at this point the DWR is releasing information and must be hoping and praying RMEF doesn't call their bluff. IMO RMEF has to call their bluff now or this issue isn't going to be fixed. The DWR and SFW are not going to do the right thing until they are forced to. Time to force that hand.
 

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I disagree. What it shows is RMEF should have been awarded the contract based on the DWR's own administrative rule. The administrative rule has the binding effect of law on BOTH the agency and the public. Based on the administrative rule which the DWR does not dispute it violated, RMEF should have been awarded the contract as the only applicant. It's convenient for the DWR to put forth the narrative it has. However, when RMEF submitted the bid to the DWR, the DWR sent a letter that their application did not comply with the rule because they were the only conservation org on the application and the rule required a partner. Basically, the DWR sent a letter saying their application was not valid because the administrative rule was not followed. Then, a week later goes by and the DWR send another letter to RMEF and issues a press release that the expo contract would be submitted to an RFP. If it was always going to be submitted to an RFP why did only SFW know that? Why didn't the DWR contact the conservation orgs and inform them that they were not going to follow their own administrative rule? Why did the DWR originally try to tell RMEF that their bid was not acceptable because of the requirement for a partner org?
Part of the purpose of an administrative rule is to inform the public of an agency's process. The administrative rule was ignored in this instance. No amount of "mentioning" an RFP can dispute the fact that the DWR failed to abide by their own rule. In addition, do not forget nor discount the fact that the DWR had just amended this very administrative rule six months prior and it was approved by the wildlife board. The DWR continues to say they "mentioned" an RFP in October 15. Then they amend and change the administrative rule in December/January. Other agencies in the state that award bid contracts have provisions in their administrative rules that specifically reference an RFP in the contract awarding process. Nothing the DWR can say will cure their failure to abide by their own recently amended administrative rule which sets forth the process in awarding the expo contract.
You are forgetting that an agency rule, although it has the force of law if properly enacted, is still subject to state and federal laws. If a state/federal statute requires a higher standard, or a different procedure, then the agency rule is invalidated. In this case, the Division of State Purchasing's requirements are superior to the agency rule--that's just the way the law works, unfortunately. My guess is that the recent amendment that you mentioned to the admin rule, brought this inconsistency to light to a previously uninformed individual. None of this changes that the DWR failed to properly notify the public and interested parties of the switch, nor did they take down the other procedure. These still indicate a rat, but I recently learned that a nonhunting friend of mine clerking at the state ag's office was part of the discussion back in May where State Purchasing brought the RFP requirement's to the DWR. This indicates to me that the DWR didn't expect anyone other than SFW/MDF to propose a contract and that they were very clear in communications to them that the other process wasn't going to be valid.

I don't know what formal notice requirements, if any, the DWR was legally obligated to give the public. But since this isn't an agency rule, I know the standard notice and comment period issues don't apply. Unfortunately, since I really would have loved RMEF to get the contract, I don't see even a viable legal option for RMEF or anyone else to oppose this award. Arbitrary and capricious is very easy for a government agency to satisfy, and very difficult for a party to win on.

1. I don't see any real change in what the groups can do with the 70% they retain from the application fees. The have to use that 70% for "policies, programs, projects and personnel that support wildlife conservation inititives in Utah." What does that mean? Does everything SFW does accomplish those goals? Did they simply draft a provision that authorizes them to do what they were already doing? Can they pay salaries to SFW "personnel" with that money? Can they lobby with that money in an effort to affect "policies"? There is not audit provided for the 70% or for the 30% for that matter. And the annual report provided by SFW to the DWR only covers the 30% that has to be spent on approved projects. The groups have issued statement stating that they will "annually disclose how these funds are utilized to benefit Utah wildlife" and the DWR's FAQ's states that "SFW and its partner, MDF, have committed to annually disclose how 100 percent of these funds are used to benefit Utah wildlife." However, I don't see anything in the rule or the contract that requires any accountability or transparency with the 70% the groups retain. I am going to have to ask around and find out what was intended by the groups and the DWR.
I agree with you completely that this might just appear to the casual observer to be like the RMEF commitment but is constructively possibly very different. It will also make for a great soundbyte for SFW and MDF to throw out when asked why their proposal won. Let's just hope that the accounting actually ends up being transparent to the last penny, and that personnel costs are well within reason. I guess we can also hope that I draw a moose tag here this year, even though I didn't apply for one.
 

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One more question for you legal guys. I'm not an attorney, nor did I sleep at a Holiday Inn last night. ;-)

My guess is that the recent amendment that you mentioned to the admin rule, brought this inconsistency to light to a previously uninformed individual. None of this changes that the DWR failed to properly notify the public and interested parties of the switch, nor did they take down the other procedure. These still indicate a rat, but I recently learned that a nonhunting friend of mine clerking at the state ag's office was part of the discussion back in May where State Purchasing brought the RFP requirement's to the DWR. This indicates to me that the DWR didn't expect anyone other than SFW/MDF to propose a contract and that they were very clear in communications to them that the other process wasn't going to be valid.

I don't know what formal notice requirements, if any, the DWR was legally obligated to give the public. But since this isn't an agency rule, I know the standard notice and comment period issues don't apply.
In failing to either give notice about changes or formally implementing the changes in the rules upon learning about a potential need to do so, does the DWR fall below a standard of negligence that could be a basis for action? If they really knew about the need to change their procedure 6 months before a scheduled deadline and simply hung onto the information, apparently sharing in at minimum only with SFW, that seems to a non attorney to be negligent in their administration and definitely suspect.
 

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My understanding of admin law, as an ungraduated law student with 5 weeks to go, you don't get a cause of action for negligence against an agency. There is very little a government agency has to show to justify their actions, many cases state that slightly more than a "mere scintilla of evidence" is enough. The mention in the RACs of the switch could very well meet this standard.

But I think that there is an argument to be made to the contrary, as igottabigone and others will surely contest.
 
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