PART ONE: Airport Concessions Protests Move Forward

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(APN) ATLANTA — Four companies that bid for food and beverage concessions contracts at Atlanta’s Hartsfield-Jackson International Airport are moving forward with their protests after the City of Atlanta denied their initial appeals, Atlanta Progressive News has learned.

SSP, represented by Ken Hodges of Ashe, Rafuse, & Hill; Midfield Concession Enterprises (MCE), represented by Matt Maguire of Balch & Bingham; Takeoff Concessions, representing itself; and Atlanta Airport Restaurants, LLC, representing itself, each filed appeals with the City of Atlanta, which were each denied this week on Wednesday, February 22, 2012.

Meanwhile, SSP and MCE have Open Records Act disputes pending in Fulton County Superior Court.

And SSP recently filed an Amended Complaint adding an Open Meetings Act claim to its dispute.

In this multi-part series, APN will review the various appeals.  In this part, APN will give an update on a separate appeal that had been brought by Travelex and that has been resolved in the company’s favor; and will discuss the OMA dispute filed by SSP.

CITY REVERSES COURSE ON TRAVELEX DISPUTE

As previously reported by APN, another firm, Travelex, had taken the City of Atlanta to court over its issuance of an airport currency exchange contract to another company, Lenlyn.

The City of Atlanta had filed an appeal to the Supreme Court of Georgia after Fulton County Superior Court Judge Cynthia Wright had put the City’s contract with Lenlyn on hold in an order dated January 04, 2012.

On January 18, 2012, the Supreme Court ruled against the City, noting they had failed to follow proper procedure.  Specifically, the City, through its fancy and expensive private attorneys at Paul Hastings LLP, filed a direct appeal rather than a petition seeking permission to appeal.

Incidentally, when APN’s News Editor–the present writer and not an attorney–appealed its dispute concerning the Atlanta City Council’s 2010 secret vote, to the Supreme Court of Georgia, the present writer followed instructions; the petition was granted and later the appeal was won.  Apparently, the City of Atlanta was not capable of following those same simple rules, even though they are published online.

On January 24, the City announced it had sustained Travelex’s protest.  

“City Council previously approved legislation awarding the contract to another proponent, which the Mayor signed on January 05, 2012, making the award final.  Once the award was final, the City promptly released proposals and related documents to Travelex and other unsuccessful proponents, as well as to the general public.  Travelex’s protest alleged deficiencies in the qualifications and experience of the winning proponent and supplied substantial credible evidence in support of its allegations, which evidence was previously unknown to the City,” the City stated in a press release.

“The City then conducted an independent investigation of Travelex’s allegations, confirmed the allegations, and promptly sustained Travelex’s protest, thereby halting the award of the contract to the previously selected proponent.”

Specifically, Travelex alleged that Lenlyn had been deceptive in its statements about the qualifications of one of its subcontractors, and upon further review, the City was able to confirm this.

OPEN MEETINGS DISPUTE:

SSP’s Amended Complaint argues that the meetings of the Evaluation Committee, which selected the winning concessions bids, were illegally closed to the public.

The Complaint argues the Committee was in fact a subcommittee of the Transportation Committee of the City Council of Atlanta, and thus meets the definition of agency under the Georgia Open Meetings Act.

“The meetings during which the Evaluation Committee selected the bid winners were improperly closed to the public,” the Complaint states.

The Complaint cites Cardinale v. City of Atlanta (2012)–the recent victory by APN’s News Editor banning secret votes across the State of Georgia–as case law to support the argument that the “Act was enacted in the public interest to protect the public—both individuals and the public generally—from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail.”

“The Atlanta City Council delegated the authority to evaluate, score, and select bid winners to the Transportation Committee, which in turn delegated their authority to the Evaluation Committee.  The Evaluation Committee acted as a vehicle for the City Council to carry out its responsibility to review, score and select the winning proposals.  As it would be with the City Council, the Evaluation Committee was subject to the requirements of the Open Meetings Act,” the Complaint states.  

Here, the Complaint cites Red & Black v. Board of Regents (1993), in which the Supreme Court of Georgia ruled in favor of the student newspaper at the University of Georgia, Athens, which had sought access to an Organization Court consisting of students who review complaints against fraternities and sororities.  

The Complaint also could have cited Jersawitz v. Fortson (1994), where the Court of Appeals ruled that the meetings of a task force that reviewed proposals and made recommendations to the Board of Commissioners of the Atlanta Housing Authority, had to be open, even though AHA denied creating the task force and a quorum of the Board was not represented on the task force.  But the Complaint has not cited the case at this time.

The Complaint also did not appear to raise any concerns about the City of Atlanta’s failure to comply with its own Charter, which, as previously reported by APN, requires that all sealed bids be opened and reviewed at a public meeting.  

It is not immediately clear why the Complaint does not make this claim, seeing as how the City’s failure to follow its own Charter would seem to be a violation to trump all other violations, and could unravel the entire bid selection process.

“The five-member Evaluation Committee that evaluated and scored Packages 1 through 5 made official recommendations as a subcommittee of the City Council.  Their deliberations, evaluations, and scoring directly determined the bid winners, which the City Council later simply ratified,” the Complaint states.

“The Transportation Committee’s meeting to ratify the Evaluation Committee’s decision only hours before the City Council vote was only a rubber-stamp on the decision of the Evaluation Committee as the Transportation Committee received the Evaluation Committee’s list of winners at midnight on December 14, 2011 and voted less than 12 hours later to recommend that list to the City Council.  The Transportation Committee performed no meaningful review of the Evaluation Committee’s process or results,” the Complaint states.

“The full City Council’s later ratification was, similarly, only perfunctory in nature.  The City Council had not read the proposals, analyzed the scores, or determined the validity of the evaluation process.  In fact, when the City Council tried to ask relevant questions at the Council meeting, the City Attorney, Cathy Hampton, stopped any such inquiry, improperly asserting the attorney-client privilege.  The City Council then went into ‘executive session’ to discuss the details of the bid process when that process should have been aired to the public as required by the Open Meetings Act,” the Complaint states.

   

“The Evaluation Committee’s meetings constituted ‘meetings’ under the Open Meetings Act.  Because those meetings were improperly held behind closed doors, those meetings violated O.C.G.A. 50-14-1.  As such, the Evaluation Committee’s bid selections for Packages 1 through 5, which were simply adopted by the City Council, are null and void,” the Complaint states.  [The other packages would also be null and void by the same logic, but SSP is not a party to those disputes.]

Stefan Ritter in the Georgia Attorney General’s office told APN during a January 2012 meeting that they did not agree that the Evaluation Committee’s meetings were subject to the OMA.  However, the AG’s office has in recent months adopted an increasingly narrow view of what meetings are subject to the Act, reversing course on the position they previously took in 2011.

The AG’s office told WSBTV Channel 2 that they did not open a file following a complaint from John Sherman of Fulton County Taxpayers Foundation regarding the closed meetings of the Evaluation Committee, and that they would not be getting involved in the litigation.

PART TWO OF THIS ARTICLE WILL BE PUBLISHED ON APN VERY SOON, STAY TUNED…

(END/2012)

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