Sorry for the long rant but I have been holding this in for a while. Now that a decision has been formally announced, I want to offer a few personal thoughts on the State of Utah's decision to award the next Expo Tag contract to SFW. As some of you know, I have volunteered some of my professional time to RMEF over the last several months in an effort to help them prepare their proposal and comply with the DWR's requirements (and changing requirements). I did this because I appreciated RMEF's willingness to step up and voluntarily offer to do the right thing to generate more money for actual conservation. That being said, my comments on this forum are my personal comments as a Utah citizen and sportsman. If RMEF wants to make any formal statements, it can do so through David Allen, Rod Triepke, Randy Newberg or others.
First, I would like to summarize some of the key points of RMEF's proposal. As you know, in its original proposal that was submitted back in September, RMEF committed to bring its National Convention to SLC, Utah for the next 5 years and voluntarily committed to dedicate 100% of the $5 application fees to authorized conservation projects in the State of Utah. After the State of Utah changed the rules and issued a formal RFP in early October, RMEF was disappointed but it decided to play along with the changing rules and work improve its initial proposal. The proposal that was submitted in response to RFP included the following (most of this information was revealed in the state's justification document or has already been posted on Randy's website):
- 100% of the application fees from the 200 Expo permits would be returned to Utah for habitat, access, and conservation.
- RMEF would bring its National Convention to Salt Lake City for the life of the contract.
- RMEF offered to give DWR 50% of the total net income from the national convention that would be moved to SLC. Given the level of sponsors RMEF attracts to its national convention, the fact RMEF has 205,000+ members, and RMEF has a media platform that reaches millions, the size of this event would have grown far from what it currently is and would have grown far beyond what RMEF currently has as its national convention in Las Vegas. To provide 50% of that larger number is not insignificant.
- RMEF voluntarily committed to provide an annual independent audit of the expo/convention and make the results of such available to the public. After all, these tags around which this event seems to be focused are a public asset. RMEF believes it is only reasonable to give the public assurance of what is done with those monies generated by the public asset of tags.
There are many other details to the RMEF proposal that will be revealed when the proposals are made public. But as you can see, RMEF's proposal was extremely generous to the State of Utah, sportsmen and wildlife.
Second, I was disappointed that the DWR changed the rules mid-stream. As explained previously on this forum, the DWR has an administrative rule that governs the Expo Tags (R657-55). That Rule has been in place for a decade and has been amended by the DWR and the Wildlife Board over the years when changes for made to the Expo Tag program. In fact, the Wildlife Board just amended the Rule in January of this year to make certain changes, including the option to extend the 5 year contract for an additional 5 years. Section R657-55-4 sets forth the requirements for apply for the Expo Tag contract. It spells out (1) who can apply, (2) when applications were due, (3) what information must be included in the application, (4) the criteria for deciding which group would be awarded the contract, and (5) who makes that decision. If you read that the DWR's Rule, it says NOTHING about a formal RFP process. RMEF worked for many months to prepare a detailed proposal that complied with the requirements of the DWR's Rule. After we submitted the RMEF proposal on the September 1st deadline, the DWR informed RMEF that they were no longer going to follow their rule and that they were moving to a formal RFP process. This came as a complete surprise to RMEF and me. The DWR stated that they had been planning on moving to a formal RFP process for some time but it took longer than expected. I see several problems with the DWR's position: First, state agencies are bound by their administrative rules, which have the binding effect of law. Second, if the DWR wanted to use a different approach then why didn't it modify its rule accordingly? Third, if the DWR wanted to use the formal RFP process then why didn't issue the RFP prior to the application period set forth in its own rule? And fourth, if the DWR was unable to prepare the RFP in time then why didn't it notify all conservation groups not to submit proposals as required by the rule? Although I was troubled by the DWR changing the rules after the fact, RMEF ultimately decided that it would play along with the DWR's changing rules and submit a proposal in response to the RFP.
Third, I am disappointed that the DWR chose to move forward in a manner that violates it own Administrative Rule. As explained above, the RFP process is in direct conflict with R657-55-4. The DWR has attempted to explain away this problem by stating that the DWR is using the formal RFP process to implement to requirements of R657-55-4. This simply is not true. The formal RFP process employed by the DWR conflicts with multiple provisions in R657-55-4. During the last two wildlife Board Meetings the attorneys for the DWR even admitted that there are conflicts. In a last ditch effort to justify the move to a formal RFP, the attorneys for the DWR stated that they are required to use a formal RFP under the State Procurement Code Statute, and to the extent that there are conflicts between the requirements of R657-55-4 and the State Procurement Code, the State Code controls. Well, there is one major problem with this argument. If the State Procurement Code Statute truly controls, and the State Code requires the use of a formal RFP, then the DWR has been violating those requirements for the past 10 years. They previously awarded 5-year contracts to MDF/SFW pursuant to the process set forth in R657-55-4 without using a formal RFP. It was only after RMEF submitted its proposal that this new process was publicly announced. As a side note, it will be very interesting to see if SFW or MDF submitted a proposal under R657-55-4 prior to the September 1st deadline. If they did submit a proposal then this supports the argument that nobody knew about the new RFP process. If they did not submit proposal then they obviously had more information than RMEF.
Fourth, I am disappointed that the DWR changed the process without any public input. Whenever the DWR enacts or changes rules, those changes are typically presented to the RACS and the Wildlife Board. This provides an opportunity for the public to participate in the process and provide input. Anyone who has attended a RAC meeting or Wildlife Board Meeting knows it can be frustrating. However, that is out only real opportunity to express our views and participate in the process. As a result of the process that was employed by DWR, the public was denied any opportunity to comment on the change from the process set forth in R657-55-4 to the formal RFP process. Now, a contract is going to be awarded pursuant to that new RFP process for the next 5 years (10 years with the extension) and the public has had no opportunity to comment on that change in process. Had the DWR included the new RFP process in its amendments to R657-55-4 earlier this year, this would not have occurred. I asked the lawyer for the DWR earlier this week if they were ever going to go back and change their rule to conform to what they are already doing, and he stated that would likely happen at some point. You all know the saying, "a day late and a dollar short."
Fifth, I was disappointed with the form of the RFP. Much has been said on these forums about the requirements and the grading criteria in the RFP. Many have claimed that the criteria favored SFW and MDF. I will merely state that when I first saw the RFP, it was clear to me that that it would be very difficult for RMEF to respond to many of the criteria with the same level of specificity as the groups that already have the contract. I knew that RMEF's proposal would be very strong as far as money generated for actual conservation and tourism dollars. However, there were a number of additional criteria included that are very difficult to address when you are a new party seeking the contract. On those items, RMEF did its best to explain what it would do if it was awarded the contract and made it clear that it would comply with all of the DWR's requirements and recommendations. However, if you look at the Recommendation Committee's Justification Statement (http://wildlife.utah.gov/pdf/2015-12-18_justification_statement.pdf
), you will notice that they repeatedly stated that RMEF's proposal lacked detail, documentation and evidence in certain categories whereas SFW's proposal contained documentation, specific numbers and historical information. Section 4 dealing with the Permit Drawing and Data Security Plan is perhaps the best example. Although SFW's proposal has not yet been released, I am assuming that SFW laid out in detail the process that it has had out in place over the last 10 years for conducting the drawing and maintaining data security. In contrast, RMEF committed to meeting all of the DWR's requirements, noted that it was in discussions with two potential subcontractors who can provide this service (both of whom have worked for the DWR previously), and noted that it would have everything in place well in advance of the Expo. However, the Selection Committee stated the following with regard to the RMEF proposal: "The Offeror B response addresses the main components of this category, but omits the details necessary to effectively review the proposal. The proposal states Offeror B will comply with the standards in the RFP, but gives few details on how they will do so. Offeror B states that they will hire a contractor in the future, but the proposal gives no details on how they will run a complex drawing, maintain data security, manage data, or interface with DWR databases. The proposal contains minimal details on PCI compliance at the expo." This section of the RFP alone resulted in a 40 point swing to SFW. This is just one example but the Justification Statement confirms repeatedly what I first thought when I saw the RFP - that it would very difficult for any conservation group seeking the contract to respond to many of the criteria with the same level of specificity as the groups that already have the contract and the experience of hosting the expo.
Sixth, I was frustrated earlier this year when the DWR amended R657-55 to allow the DWR and the Wildlife Board to extend the Expo Tag contracts from 5 years to 10 years. That concern, however, is moot at this point. I am now of the opinion that no conservation group is ever going to win that contract from SFW/MDF under the current system. My opinion is based upon the following: (1) I doubt that any conservation group could offer anything more than RMEF already put on the table (and lost); and (2) Given the criteria in the RFP and the recently released Justification Statement, it would be practically impossible for any new group to provide enough detail and specificity to compete with the parties holding the current contract. Ironically, I don't think that SFW or MDF ever thought they were really in risk of losing the contract. As you will notice in Section 5 of the Justification Statement, SFW and MDF will continue to keep $3.50 of every $5.00 application. If SFW was truly worried that it might lose the contract, it almost certainly would have offered to contribute a larger portion of the application fees to actual conservation. Congratulations to SFW for putting together the winning proposal.
Finally, I would like to thank RMEF for being willing to step into this mess. It has been a long and difficult road that changed directions a couple of times but at every juncture they were honorable, professional, and committed to doing the right thing. It was a pleasure working with RMEF and I am sorry that the State of Utah did not recognize the true value of what RMEF was offering. If you are not a member of RMEF, please consider joining. I also want to thank all of you who helped along the way, expressed support, called and emailed the DWR and Wildlife Board, etc. Please continue to do so. I have been working on this issue (Expo Tags) for nearly 10 years now, and I don't plan to let up. I guess I am a glutton for punishment. Stay tuned as more information is released and comes to light. Sorry for the long rant but I have been trying to stay quiet until a decision was made and lawyers always have a lot to say.