By Peter White
NASHVILLE, TN — The Finance Appeals Board voted 5-0 last week to uphold the dismissal of the protest by the only minority-led team in the bidding to develop Fort Negley. The award, worth about $200 million, was given to a political ally of Mayor Megan Barry, Bert Mathews.
“They already had their minds made up,” said Devinder Sandhu. “I raised enough questions that there should have been at least one Doubting Thomas on that board who would have said ‘Wait a minute. There are some valid points being raised here’.”
Sandhu is the man behind the Adventure Park proposal to repurpose Greer Stadium into a soccer facility and leave the rest of Fort Negley undeveloped and open to the public as a park.
The Mathews plan calls for the construction of 21 buildings in the park and after he recoups the costs, the revenues would be shared with the city. Mathews would pay no taxes on the property for 99 years.
If that happens it will upend the city’s 2007 Master Plan for the park that has been protected with an Historic Overlay since 2005. That designation would have to be lifted in order to put housing and retail outlets in the park.
Since the award was given to the Mathews Group on May 26 a number of irregularities have come to light, including the Request for Proposal (RFQ), which did not allow for proposals with a “park only” option, political meddling by Councilman Colby Sledge and the Mayor’s office, and a lack of transparency in the scoring of the financial plans, the diversity plans, and in evaluating the experience of the five finalists.
You Must Be Kidding
At a June 22 protest hearing Jeff Gossage asked Sandhu how long Adventure Park had been in existence. Sandhu told him he formed the group earlier this year in order to bid on the Fort Negley project. Then Gossage asked him how many development projects Adventure Park had completed. “Zero,” he replied.
Sandhu has been in business since 1994 and his group has 89 years of development experience. He started to explain that to Gossage who quickly cut him off.
Gossage turned to Mathews and asked, “How long have you been in existence?”
“We’ve been in existence since 1938.”
“How many projects, do you even have an idea?”
“We’ve shaped several thousand acres in Davidson County….”
The Cloud Hill partnership that Mathews formed to bid on the Fort Negley project has not completed any development projects either. They have been in existence even less than Sandhu’s group and didn’t incorporate until June 23, the day after Gossage questioned both developers.
But Gossage didn’t care. He was too busy making a distinction without much difference between Sandhu and Mathews. Both groups have plenty of experience and impressive credentials. Bert Mathews is just better connected.
After Gossage denied his protest, Sandhu redoubled his efforts to understand exactly how the award to Mathews happened.
“How do you go back and evaluate your process if you don’t know how the process was set up?” To understand it, Sandhu requested documentation but the Procurement office released a single scoring sheet. It’s hard to tell what went on with RFQ 969636 because that score sheet is like a link of sausage. Knowing what it looks like is not the same thing as knowing how it’s made.
In his response to one of Sandhu’s questions Gossage wrote: “The procurement staff member facilitating the meeting was Terri Troup. Terri did collect the consensus scores and entered them into the report you received supporting the award selection.”
But according to one judge, Clay Bailey, Troup wasn’t at that meeting. He says Gossage led the consensus scoring. It came after about 3 hours of discussion driven mostly by Doug Sloan from Planning and Zak Kelley from Finance. Bailey said most of the judges remained silent throughout the session.
“There were people in there who were trying to intimidate us a bit,” said Bailey. “I felt like we were there as the token outsiders.”
Bailey, who is President of Friends of Fort Negley, sensed a hostility towards historic preservation in the room that he found very disappointing.
”It was like we were kind of a roadblock standing in the way of what they wanted to do,” he said.
Bailey said he and the other judges read the proposals and ranked them before they came to the first judging session in April. But those rankings were never tabulated or averaged.
Instead, Bailey said each of five proposals was discussed holistically and not broken down, each into five parts. He said sometimes one plan was compared with another. The idea was to get a consensus ranking of the five proposals. That method is highly susceptible to a strong personality manipulating the group. This group had two, Sloan and Kelley and both back the Mayor’s plan to develop the park.
At the end of a three-hour discussion, Bailey said Gossage suggested a score to the group and then filled in the empty boxes under each proposal on the scoring sheet.
“The numbers were just filled in to reflect the overall quality of the proposals rather than there being some clear quantifiable method,” Bailey said. He can’t recall if some of the boxes were left blank or if some of the scores were preliminary. Former Parks Director Tommy Lynch, another judge, couldn’t recall if the financial plans were scored at the first session but he thought not. In any case, the final scores were circulated only after the second judging session in May but by then only two proposals remained. Three had already been eliminated.
“It was a frustrating experience all the way around,” says Bailey.
“That’s the way it’s been,” Gossage told the Appeals Board. “The consensus scoring has been a practice for almost 20 years in Metro.”
“That’s what’s wrong with it. If that’s the way they’ve always done it then that’s a major problem,” Sandhu says.
“Unknown consensus score, unknown cost score, unknown matrix score. All that leads to unknown evaluation,” Sandhu told the appeals board.
Sandhu has learned two things about how the city handles its contracts: the system is designed to protect the people who are running it and to give preference to people who have friends at City Hall. RFQ judges may naively think they are participating in a fair process but fudge factors actually determine the outcome.
The Fudge Factors
Sandhu told the Appeals Board that the panel of seven judges only did 65 percent of the judging. The highest possible score was 100 points. The judges did not award 30 points for the financial plans. Procurement scored them and the Mathews plan was given 30 points, a perfect score. How many points were added to the consensus scorecard after the judges had finished deliberating is unclear. Finance’s cost analysis is supposed to be an objective appraisal but if it isn’t, it just gives a political insider an unfair advantage.
Gossage told the board the judges did discuss the financial plans. But Bailey says when he asked about the financial plans he was told they would be evaluated later. Among the comments about the Mathews plan on the consensus scorecard was written: “Appears to be fully funded”. “Well, was it or wasn’t it?” Sandhu wants to know. His financial plan scored 20 points. He says it was fully funded.
The Business Assistance Office (BAO) judged the diversity plans, worth five points. The BAO is part of the Finance Department. Minority inclusion plans are judged by a matrix system with four criteria.
The Mathews Plan, which has no minority partners, scored 3 out of 5 points on diversity. The Adventure Park Plan, which has three minority partners, scored 2.
“All this points to a scoring system that nobody is accountable for,” Sandhu told the board.
“Who is accountable for the scoring system? Is it the Mayor’s office? Is it Ms. Talia Lomax-O’dneal? Is it Mr. Gossage in Procurement? Is it the Park Board?” The answer seems to be all of the above and none of the above.
Sandhu pointed out several flaws in the RFQ to the five-member appeals board. For example, the RFQ, which asked for detailed design plans for the site, did not include a survey of the property. This resulted in the Mathews group putting a parking lot on property that the city doesn’t even own. Mathews won the bid with 96 points.
Sandhu noted no archeological studies were given to the bidders although two existed. No building condition report of the stadium was provided, just a demolition report. Sandu, an engineer, says the stadium is in good shape. His plan called for repurposing it, not tearing it down.
Racism By Design and in the Details
The RFQ did not require the stadium to be demolished but allowed it. Even so, saving it wasn’t really in the cards. Sandhu’s make-over of Greer Stadium into a soccer facility as well as the “all park” option proposed by Friends of Fort Negley were like reading a Help Wanted sign in Jim Crow times: “No Irish or Negroes Need Apply”.
The “development only” language of the RFQ precluded both those possibilities. A number of groups have criticized the plan, not just the NAACP.
The Appeals Board hearing was the last chance the Finance Department had to review itself and answer the questions Sandhu has been asking but getting no answers. Sandhu says he’s been given the runaround.
On September 15, Sandhu received word from Judy Cantlon of the BAO that his FOIA request had been forwarded to the Metro Clerk’s office for “follow-up”. A metro clerk told Sandhu that the Finance Department handles all public access requests to its documents.
“Finance doesn’t know their own policy for records,” Sandhu says.
In June, Director of Finance Talia Lomax-O’dneal signed a new records request policy for her department. In three places it designates Zak Kelly as the coordinator of records, gives his email, phone number, and address.
“Zak Kelley has not once answered my requests for documentation,” Sandhu said. If a request is denied Kelley is supposed to notify the requester in writing of the reason why it has been denied. Denying a request for records that don’t exist is a valid reason. Although Gossage said Sandhu got everything, Kelley never averred no more documents exist and he never told Sandhu the reason why he didn’t provide any records.
The whole kerfuffle is a bit like that scene in the Wizard of Oz when the Wizard says, “The Great Oz has spoken. Pay no attention to that man behind the curtain!”
By voting unanimously to uphold the award to the Mathew group, the appeals board chose to ignore the issues Sandhu has raised: namely, the outcome was pre-ordained, the process was flawed at every stage, including the judging and protest procedures, and it discriminated against the only minority group that submitted a proposal.
Four of the five Appeals Board members are either women or a minority and Sandhu challenged them to think about how they got there.
“When are minorities ever going to get a chance to move forward in this town? We are at a 2% minority participation in this town. That is shameful. Absolutely shameful,” Sandhu told them.
“I consider it almost an insult to hear Mr. Gossage say ‘I don’t care what his minority status is. He’s not a minority’. That really really really is upsetting to me and it should be to you, especially when I look across this table and I see DBEs all over the place,” Sandhu said.
A DBE is a disadvantaged business enterprise, a small business owned by a woman, a minority, or a disadvantaged individual.
Sandhu is considering filing a lawsuit in Chancery Court. In the meantime, the City Council or the Park Board could nix the Mathews Plan. The Mayor’s office could just withdraw the RFQ and start all over again. That’s what Sandhu told the Appeals Board it should do. But they weren’t listening.
Sandhu is hoping the community will. His group is organizing a community meeting Saturday, October 28, from 9-11 am at the Adventure Science Center. Sandhu wants to gather support for an all parks plan, the option the RFQ took off the table.
Finance “Minders” Put Councilman in the Basement
At the Finance Board appeals hearing last week, At-Large Councilman John Cooper, who opposes the mayor’s plan to develop Fort Negley, was not allowed to attend the hearing in person. He had to watch it from the overflow room on a screen in the basement of Lindsley Hall.
The approved list included people who support the Mayor’s plan to develop Fort Negley, city employees who engineered it, and interested parties like Devinder Sandhu and Bert Mathews.
The hearing was filmed in the Peabody conference room and Director of Finance Talia Lomax-O’dneal said that was why seating was restricted.
But the hearing was not live streamed or available on the city’s cable channel, nor was it posted on Metro government’s YouTube Channel. We asked Lomax-O’dneal by email why the fuss if she wasn’t going to broadcast the hearing. She did not respond by press time.
A Finance Department employee told two security guards to keep the Tribune away from the hearing room and later tried to eject our reporter after he took a vacant seat during a recess. The hearing was a public meeting and blocking access to it violates state law.