RE: Debunking the DWR?s Frequently Asked Questions Re: Utah Expo Permits and Conservation Funding
FAQ #13 ? 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.
RESPONSE:
In FAQ #13, the DWR misstates what actually occurred and attempts to blame RMEF for following the DWR?s own Administrative Rule. This is complete nonsense and ignores the binding effect of the DWR?s Administrative Rules and the history of the DWR?s own actions.
In the two sentences of FAQ #13, the DWR states that ?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.? The DWR is correct that on the afternoon of September 1, 2015, RMEF hand-delivered to the DWR its application for the upcoming 5-Year Expo Tag Contract. See Initial RMEF Proposal -
https://drive.google.com/open?id=0BwhBsR2dj01Gc0M2a3lIUV9VRlE. In preparing its application, RMEF carefully followed the DWR?s application requirements, including the September 1st deadline, set forth in the DWR?s own Administrative Rule. See R657-55-4(3) -
http://wildlife.utah.gov/rules-regulations/981-r657-55--wildlife-convention-permits.html. Remember, this is the same rule that the DWR had previously used to award the two prior 5-year contracts to MDF and SFW, and the same rule that was just recently amended by the DWR in January 2015.
The DWR is still clinging to its position that although it ?openly referenced its plan to issue the RFP,? but RMEF was ?somehow unaware of that statement.? As explained in my response to FAQ #12 above, the DWR is referring to the fact that Kenny Johnson mentioned that change during the August 27, 2015 Wildlife Board Meeting while presenting on another topic. As explained before, that statement by Mr. Johnson occurred roughly 7 months after the Wildlife Board adopted the current version of the rule (that does not even mention an RFP), 27 days after the application period opened pursuant to R657-55-4(3), and 4 days before the deadline to submit applications pursuant to R657-55-4(3). More importantly there was nothing on the agenda for the August 2015 Wildlife Board Meeting to suggest that the DWR was going to announce a monumental change the Expo Tag program. Is this how the DWR conducts its business? It does not have to follow its own rules? It does not have to amend its rules to reflect significant changes to programs? It does not have to provide notice to the public of those changes? It is pathetic and embarrassing for the DWR to attempt to blame RMEF for submitting an application pursuant to the terms of the DWR?s own Administrative Rules.
The next sentence of the FAQ #13 states: ?Because the proposal was submitted outside the RFP process, the DWR encouraged RMEF to resubmit a proposal when the RFP was open.? Just to be clear, RMEF?s proposal was not submitted outside the ?RFP process? because the ?RFP process? did not even exist as of September 1, 2015, when RMEF submitted its initial application. The DWR did not even issue its RFP until October 8, 2015, and there is nothing in the Expo Tag Rule requiring or even referencing a formal RFP. Therefore, the DWR should have followed the information application process set forth in R657-55-4, which is the same process that the DWR relied upon to award the two prior Expo Tag contracts.
I also take issue with the statement from the DWR that it ?encouraged RMEF to resubmit a proposal when the RFP was open.? The DWR makes it sound as if when it received RMEF?s proposal it merely contacted RMEF, apologized for the confusion about the move to the formal RFP, and encouraged them to resubmit when the formal RFP was open. That is not what happened here. After receiving RMEF?s initial proposal on September 1st, one week later the Director for the DWR sent a letter to RMEF informing them that their proposal was deficient and failed to comply with the requirements of the DWR?s administrative rules. But fortunately, RMEF would have an opportunity to ?correct? that deficiency during the upcoming formal RFP process. Specifically, the letter states as follows:
?
This RFP process will offer RMEF an opportunity to correct and elaborate on certain aspects of your original proposal that would have disqualified RMEF in the initial submission. More specifically, from the application, it appears that RMEF is the only conservation organization that would be involved in the exposition. Although the rule frequently speaks of conservation organizations in the singular, R657-55-2(2)(c) defines ?wildlife exposition? as a multi-day event held within the state of Utah that is
sponsored by multiple conservation organizations as their national or regional convention or event that is open to the general public and designed to draw national attendance of more than 10,000 individuals.? (Emphasis added).
Partnerships are critical to preserving our hunting heritage and reaching a broader audience with our wildlife message. As such, the involvement of two or more conservation organizations is a regulatory condition to awarding the exposition contract. This is not a new requirement or concept, and in fact this was an underlying theme of this permit program when it was initially created in 2005.?
See 9/8/2015 Letter from Sheehan to Allen -
https://drive.google.com/open?id=0BwhBsR2dj01GLWVwaFVIQWpNZFE.
Now, I have to state that both RMEF and I were completed shocked when we received this letter from the DWR. We had carefully complied with the requirements set forth in the DWR?s own rule and we were dumbfounded by the suggestion that the DWR was now moving to a formal RFP process in violation of its own rule and the suggestion that RMEF?s proposal failed to meet the requirements of the DWR?s rule.
The irony of the DWR?s attempt to ?CYA? by pointing to an alleged deficiency in RMEF?s proposal is that the DWR had actually removed the requirement that the Expo be hosted by ?multiple conservation organizations? as part of the rule amendments that were presented during the December 2014 RAC meetings and the January 2015 Wildlife Board Meeting. Surprisingly, the DWR did not know about its own rule changes and relied upon language that it deleted from its own rule in an effort to try to disqualify RMEF?s proposal. Fortunately, I had attended the Central RAC meeting and the January 2015 Wildlife Board meeting so that I would be aware of any such changes. As a result, I understood that the DWR had removed the requirement that the Expo be sponsored by ?multiple conservation organizations? and replaced it with language stating that the Expo must be sponsored by ?one or more wildlife conservation organizations.? See R657-55-2(2)(c). Once again, this underscores the importance of making changes to the Expo Tag program through the formal rule making/amendment process and public meetings.
Determined to get to the bottom of the situation, I immediately contacted the lawyer for the DWR. When I asked him about the alleged deficiency in the RMEF proposal, he reiterated what was stated in the Director?s letter and told me how important the ?multiple conservation organizations? requirement was because it promoted partnerships, attracted a broader audience and was in fact a regulatory condition for the Expo Tags from the beginning. When I explained to him that the DWR had deleted that requirement as part of the recent rule amendments, he asked me how I knew that to be the case. I responded by saying that I knew about the amendment because I attended the public meetings and I was looking at a redline copy of the rule amendments presented by the DWR and adopted by the Wildlife Board. See DWR?s Redline Version of R657-55 (attached to email) -
https://drive.google.com/open?id=0BwhBsR2dj01GU19XQTlnVWxRMzA. The DWR?s lawyer said he would look into the issue and be in touch.
Three days later, the Director of the DWR sent a second letter to RMEF correcting his prior misstatements about the ?multiple conservation organizations,? acknowledging the mistake by the DWR, and conceding that RMEF could apply for the Expo Tag contract on its own. However, the DWR confirmed that it still intended to move forward with the formal RFP process. The relevant portions of the Director?s second letter provide as follows:
?I am writing to correct a statement made in the letter that I sent you earlier this week concerning the expo rule requiring eligible applicants to consist of two or more conservation organizations. Yesterday, it was brought to my attention that the proposed amendments to the exposition rule provided to our regional advisory councils and the Wildlife Board last winter modified, among other things, the definition of ?wildlife exposition.? The proposed amendment eliminated the multiple conservation organization requirement, allowing one or more conservation organizations to participate.
Yesterday, we learned that the Division inadvertently provided the Division of Administrative Rules an earlier draft of the expo rule amendments that did not modify the multiple conservation organization requirement in the definition of ?wildlife exposition.? We plan to correct this oversight by immediately refilling the appropriate rule with the Division of Administrative Rules.
What this means for RMEF is that it may alone respond to the upcoming RFP and proceed without a cooperating conservation organization. I apologize for the confusion and thank you for your patience. Should you have any questions, please feel free to contact me personally.?
See 9/8/2015 Letter from Sheehan to Allen -
https://drive.google.com/open?id=0BwhBsR2dj01GbGtablcxNjR4Q2s.
Had I not reached out to the DWR and informed them of their mistake, they would not have even known that they filed the wrong version of the rule with the Division of Administrative Services. And they almost certainly would have maintained that RMEF?s initial application was disqualified for failing to meet an ?important regulatory condition? and they likely would have continued to enforce the ?multiple organization? requirement on RMEF even though it no longer existed. I understand that everyone makes mistakes from time to time. But for the DWR to make a complete mess out of this process and then attempt to blame RMEF is unacceptable.
In conclusion, the DWR?s FAQ #13 is inaccurate, self-serving and unfairly blames RMEF for the DWR?s repeated mistakes and refusal to follow their own Administrative Rules. RMEF submitted a proposal to the DWR that met all of the requirements of the DWR?s rules. Any confusion on the part of RMEF was not the result of the fact that RMEF was ?unaware? of some ?statement? by the DWR that it wanted to used a formal RFP process. Rather, the confusion was the direct result of the fact that RMEF followed the DWR?s Administrative Rules by the DWR chose to use an alternative process that conflicted with its own rules. Moreover, when the DWR received RMEF?s 9/1/2015 proposal, it did not politely contact RMEF and encourage RMEF to resubmit a proposal in response to the not yet release RFP. Rather, the DWR sent RMEF a ?gotcha letter? stating that RMEF failed to meet one of the fundamental ?regulatory requirements? of the Expo Tag rule and as a result RMEF?s proposal would be disqualified. But the ?good news? was that RMEF could correct that deficiency as part of the upcoming RFP process. I believe that the DWR had an ?oh sh!t? moment when it received RMEF?s proposal and attempted to rely on a requirement in the rule that no longer existed in an attempt to cover its tail and force RMEF into the formal RFP process. The irony of the situation is the DWR was not even aware of the fact that it deleted the requirement 8 months earlier.
I would also point out this the DWR has demonstrated a pattern of sloppiness and carelessness when it comes to the rule making/amendment process. Consider the following: First, the DWR struck the ?multiple conservation organization? requirement from the Expo Tag rule but somehow was unaware of that change 8 months later when it was lecturing RMEF on the importance of that critical ?regulatory condition.? Second, after the DWR removed the ?multiple conservation organization? from See R657-55-2(2)(c), it apparently filed the wrong version of the amended rule with the Division of Administrative Rules (which then published the incorrect version), forcing the DWR to go back and republish the correct version. Third, when the DWR presented all of the other changes to the Expo Tag rule during the December 2014 RAC Meetings and the January 2015 Wildlife Board Meeting, it did not bother to amend R657-55-4 to include the most significant change of all ? the planned move to a formal RFP process. And finally, when the DWR formally notified RMEF of its intention to use the formal RFP process after receiving its 9/1/2015 proposal, and we expressed our concerns that the DWR could not move to a formal RFP without violating R657-55-4, the DWR elected to press forward with the formal RFP process without taking the time to amend its rule to allow it to do so.
I wonder how the DWR would react if we as the public decided that we did not need to follow the DWR?s rules? What would the consequences be for us?
-Hawkeye-
