PART 3: Atlanta Airport Concessions Move Forward despite FAA Letter
(APN) ATLANTA — The City Council of Atlanta voted on April 30, 2012, to move forward with new concessions contracts, instead of delaying them ninety days, despite revelations that the Federal Aviation Administration (FAA) has determined that some of the contracts are not in compliance with federal requirements designed to protect small and disadvantaged businesses.
In this article, Atlanta Progressive News will discuss the FAA’s letter and the response by the City Council of Atlanta. In a follow-up article, APN will examine some of the specific problems regarding the City’s compliance with small and disadvantaged business requirements, as alleged in complaints filed by protesting vendors.
Two Councilmembers, Felicia Moore (District 9) and Michael Julian Bond (Post 1-at-large) voted no against filing a resolution that would have given the City flexibility to extend the current contracts by ninety days.
Nine Councilmembers, on the other hand, wanted to move forward with the new contracts despite the FAA’s findings. Voting to file the resolution were Councilmembers Carla Smith (District 1), Ivory Lee Young (District 3), Natalyn Archibong (District 5), Howard Shook (District 7), Yolanda Adrean (District 8), CT Martin (District 10), Keisha Lance Bottoms (District 11), Aaron Watson (Post 2-at-large), and H. Lamar Willis (Post 3-at-large).
“As part of its regulatory oversight, the Federal Aviation Administration (FAA) must ensure that Airport Concession Disadvantaged Business Enterprise (ACDBE) requirements are followed, including with respect to airport related certification matters,” Michael D. Freilich, Director, Civil Rights, Western-Pacific Region & DBE Compliance, for the FAA, wrote in a letter to Louis E. Miller, Aviation General Manager, Hartsfield-Jackson Atlanta International Airport .
“Based on allegations of certification irregularities received by the FAA, we recently conducted a review of selected ACDBE certification files that were processed by Georgia Department of Transportation (GDOT) and Metropolitan Atlanta Rapid Transit Authority (MARTA),” Freilich wrote.
“U.S. Department of Transportation regulations at 49 CFR Part 26 require that recipients of highway, transit, and airport grants ensure that socially and economically disadvantaged firms have fair chances for contracting opportunities. There is a similar program with regard to airport concession opportunities governed by 49 CFR Part 23. Both have a number of requirements by which firms must be certified at the State level to be a part of each program,” Freilich wrote.
“The FAA’s review of certification files and discussions with GDOT staff identified ACDBE certified firms that had PNW in excess of $750,000 at the time of application. Based on the current regulations regarding PNW, certain firms were ineligible to be ACDBE certified. We also have identified additional issues, primarily related to insufficient documentation, that may affect the certification eligibility of these firms,” he wrote.
“The FAA reviewed certification files of four ACDBE firms. These firms are: (1) Atlanta Restaurant Partners, LLC; (2) Mack II, Inc.; (3) Vida Concessions, Inc.; and (4) Hojeij Branded Foods, Inc. We know that those firms, and potentially others not examined by the FAA, were part of a recent concessions Request for Proposal (RFP) issued by Hartsfield-Jackson Atlanta International Airport (Airport) and the City of Atlanta. These firms were awarded concession packages, or were part of awarded concessions packages as a joint venture arrangement or subcontractor, based in part on the firms’ incorrect ACDBE certification status,” he wrote.
“The above-referenced issues made the firms ineligible to be considered as ACDBE certified at the time of contract award, and therefore the firms should not have been given scoring preference or counted toward any ACDBE participation goal that the Airport may have had in place for the concessions RFP,” he wrote.
“The FAA believes that the certification related issues affecting the ACDBE firms could have impacted the selection process for the concessions RFP. Therefore, we are available to provide technical assistance to your staff to help them remedy any concession awards that were made to ACDBE firms as prime concessionaires, subcontractors, joint venture partners, etc., that (1) exceeded the $750,000 PNW cap at the time of application, annual review, or identified during the three-year recertification process or (2) failed to satisfy any other Part 23 ACDBE criteria at the time it was incorrectly certified,” he wrote.
“In the meantime, the Airport and the City of Atlanta should not count participation of any firm that has a PNW in excess of $750,000 or otherwise failed to meet Part 23 requirements towards ACDBE goals,” he wrote.
“At your earliest convenience, please contact my Team Leader… to discuss the development and implementation of a compliance plan. For your information, the FAA also has notified GDOT, MARTA, and the City of Atlanta of these deficiencies. We are committed to working with you and each of these other entities to ensure prompt compliance with Part 23 requirements,” he wrote.
The Atlanta City Council discussed the FAA letter for two hours during an Executive Session on Monday, April 30, during a Full Council meeting specially called by Council President Ceasar Mitchell.
Prior to going into Executive Session, Moore warned her colleagues, “I do want to caution my colleagues when we go into Executive Session that we make sure that we very, very narrowly discuss what is Executive Session.”
“Some of this is just a prelude to the Executive Session, some of the discussion is going to be general information and knowledge which probably, and I guess I’ll ask the Law Department, should be held publicly. I just want to make sure if we go into Executive Session, that we narrowly tailor what we’re saying and not discussing general discussion and updates that are public in nature,” Moore said.
“So I would ask the Law Department, if we’re going to go into Executive Session, is there a very narrowly tailored and specific issue? Because I do know that we needed to start out with at minimum sort of somebody telling us where we are and what has occurred and I don’t think that’s a litigious discussion,” Moore said.
“Yes ma’am we will discuss pending as well as potential litigation in Executive Session and both are exemptions for Executive Session in the Open Meetings Act, ma’am,” City Attorney Cathy Hampton said.
“My question was more specifically, narrowly tailoring the discussion, because some of it is just general public information, versus information that’s related to pending or potential litigation, that’s my question,” Moore said.
After a ten second silence, Hampton replied, “The exemption under the law is pending or potential litigation and that’s the exemption that we will be using. I’m not sure of the question, ma’am.”
“Okay, well, if you’re not sure of the question I’m just going to make it abundantly clear when we get in Executive Session, if I particularly think that we’re talking about something that’s of a general nature that should be on the floor, I’ll make a point of it. And if I’m ignored… I’ll make a point of it in other venues,” Moore said.
“Particularly, I’m letting you know, Mr. President, because I know you have to sign the affidavit,” Moore said, referring to an affidavit that Executive Session discussions were restricted to exempt matters.
Councilman Willis later noted that HB 397 amended the Georgia Open Meetings Act this year to require that minutes be kept in Executive Session, to be made available in the case of a dispute.
After returning from Executive Session, Martin immediately made a motion to adverse the 90 day extension resolution. Councilwoman Archibong, who co-sponsored the resolution, said she would vote against her own resolution.
Bond spoke against the motion to adverse. Martin then withdrew his own motion and Smith made a motion to file, noting, “Mr. Maynard Jackson’s ghost is asking me to ask all of us to just be a little bit nicer.”
“I am going to support the motion to file this paper, but I want everyone to know it’s not because the Administration said so, or the Administration asked. We have an attorney, a dual-report attorney who’s responsible to both bodies, the Executive Branch and this Council. And I’m not an attorney, I’m a lay person. And so, I was looking to advice on the attorney that we have as to what the best posture to take as we go through this process… My ears were on my attorney and that’s how I’m making this decision,” Adrean said.
Councilman Young questioned the FAA letter.
“A letter that would take the time to express real concern with regard to some of our vendors and their personal net worth, and the same letter also recommends not decertifying any of these same vendors. It really makes me begin to wonder what’s the real motive behind the letter?” Young said.
The full text of the letter is quoted above; nowhere does the letter make a recommendation to not decertify any vendors. The letter does state that the certifications are invalid.
“I”m clear that there’s some real issues with this letter, its motive, and I find no reason on the merits of this letter or the contents of this resolution to be supportive of it,” Young said.
Ironically, when some advocates questioned the City’s airport concessions bidding process, Young complained that advocates were making accusations without any evidence. Yet, Young has now questioned the FAA’s motives without any evidence.