VC denies local trash hauler protest

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Valencia County officials have replied to and denied a protest by a local trash hauler, even though they didn't really have to, according to the denial letter.

The letter, signed by the county's procurement officer, Mike Vinyard, says that many of New Mexico Disposal's claims are untimely, according to deadlines laid out in the state procurement code, but will be addressed anyway, "to demonstrate that the claims are not only untimely but also without merit."

On Dec. 19, county commissioners awarded an eight-year contract for solid waste services in the unincorporated parts of the county to Waste Management on a 4-1 vote. Former Commissioner Georgia Otero-Kirkham was the only no vote.

New Mexico Disposal was the only other offeror that submitted a qualified response to the county's solid waste request for proposal.

Valley Disposal responded to the RFP, but was disqualified because its proposal did not meet several of the mandatory criteria.

New Mexico Disposal President Ernie Byers said he anticipated the county was going to deny the protest. And now that it has, he said the company will "absolutely" file an appeal in district court.

"There was no way they would admit any fault," Byers said. "From the beginning, from the pre-bid conference, there were an additional 150 questions, so that was a good indication which way this was going to go at that time."

New Mexico Disposal protested the award of the contract under the due process clauses in the United States and New Mexico constitutions, and argued that the contract for solid waste services is an award of a public franchise, not a contract for goods and servicesm and argued that the evaluation committee erred in relying on state procurement code, because a section of the code exempts refuse service from the scope of its application.

The protest also accused the county of violating the Open Meetings Act in the appointment of the members of the evaluation committee, and by amending the Dec. 19 agenda two days before the meeting to include the consideration of the contract.

The protest concluded by saying the process used by the county to award the contract "created an un-level playing field in violation of the commission's mandate to select the most advantageous bidder."

Vinyard's response to the first issue was that the contract is both a contract and the grant of an exclusive franchise for residential solid waste services, and that the county is explicitly permitted to contract with a firm, corporation or individual for the collection and disposal of refuse, under state statute.

The letter goes on to say the county's reliance on the procurement code afforded New Mexico Disposal greater protections and more process than they would have been otherwise.

"If the procurement code does not apply, as New Mexico Disposal contends, the county would be permitted to purchase the services without utilizing a formal procurement process by contracting with the contractor of the county's election …," Vinyard writes.

Regarding the possible OMA violation, Vinyard says that because the commissioners did not choose to appoint the members of the evaluation committee, instead leaving that to the county manager, there is no violation since the manager is not subject to OMA.

Vinyard writes that the county commissioners had actually adopted stricter-than-required notification requirements by requiring the agenda be finalized 48 hours before a meeting — a time frame that was adhered to in the agenda's amendment two days prior to the Dec. 19 meeting.

The denial letter ends by noting that New Mexico Disposal failed to identify the remedy it was seeking by filing the protest.

"For instance, (the protest) does not detail whether it is seeking reappointment of the evaluation committee, the re-issuance of the request for proposals, a re-scoring of the proposals, the cancellation of the contract with Waste Management or the award of the contract to New Mexico Disposal," Vinyard writes.

The commissioners discussed the protest response in executive session at their Jan. 23 meeting.

According to county attorney Dave Pato, a credible threat of litigation had been made by New Mexico Disposal, allowing the matter to be discussed in executive under the OMA.

But before going behind closed doors to review the protest and the proposed response, the commissioners let the public have its say.

County resident Sharon Honeycutt said she found the ordinance very disturbing. While it's intent is to curb illegal dumping, Honeycutt said the solution will punish all residents.

"This will put a few small businesses out of business in favor of a large business that doesn't have an office in the county," Honeycutt said. "It takes away our choice. We don't like the company that was given the contract; it's the most expensive and has the worst service."

Several other residents offered up anecdotal evidence of Waste Management's alleged poor customer service, including refusing to transport trash carts when a customer moved and charging for replacement carts.

Other residents said they were concerned about the cost and were worried that the company would not be willing to assist those who were physically unable to move their carts to the curb.

One woman asked if the county's ordinance, and therefore its contract with Waste Management, was applicable in the newly incorporated city of Rio Communities.

Pato said Rio Communities, as well as any other incorporated areas of the county, would not be subject to the service.

Currently, the city of Belen and village of Bosque Farms contract with Waste Management to haul their residents' trash, while the village of Los Lunas hauls its own.

The town of Peralta lets its residents chose their own hauler from amongst the residential haulers that have franchise agreements with the county — AC Disposal, Valley Disposal, Waste Management and New Mexico Disposal.

Rio Communities does not have a governing body as of yet, so it is unknown how it will handle solid waste. For the time being, their solid waste pick up will remain as is, allowing residents to pick their own hauler.

When the commissioners returned from executive session, Pato told them it was his understanding that the board needed to issue the protest determination, as written by the procurement officer, in accordance with the procurement code.

"There is no action required by the county commission," Pato said.

Both Commissioners Alicia Aguilar and Charles Eaton said if there had been a vote, they would have abstained.

"I was not involved in this process and I have questions," Aguilar said.

Both commissioners said they felt there was a lack of transparency to the award of the bid and not enough opportunity given to the public to voice their opinions, with Eaton saying he was "disturbed by the lack of notice."

Commissioner Donald Holliday pointed out that the commission had adopted the solid waste ordinance in 2009 and been discussing the matter ever since.

"I'm not sure how people are unaware of this. It's been almost four years and all over the paper," Holliday. "Maybe we should have dropped everybody a letter."

One woman from the audience replied, "Yes!"


-- Email the author at jdendinger@news-bulletin.com.