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City Attorney rejects TDS recycling services proposal

Wednesday, February 24, 2010 by Michael Kanin

City Attorney David Smith has rejected Texas Disposal Systems’ (TDS) attempt to jump into the bidding to take over city recycling services—even though Smith leaves open the possibility that the city could consider part of TDS’ proposal, which was made outside the request for proposal (RFP) process for picking a partner to build a new Materials Recovery Facility (MRF).


TDS currently has a 30-year contract with the city to do waste disposal and yard trimmings processing.


In a memo sent out Wednesday, Smith ruled that the city cannot consider portions of Texas Disposal Systems’ (TDS) proposal to amend its contract that could be viewed as a response to Austin’s request for proposal for the MRF.


In a letter attached to Smith’s ruling, Assistant City Manager Robert Goode said that the city is “moving forward with the (current) RFP process and .. continuing the evaluation of compliant responses.” This now excludes TDS. Eight firms, including Mid-America Recycling (Greenstar), submitted responses to the RFP that were considered “compliant” with city regulations.


Smith wrote in his ruling that “the portions of TDS’ proposed amendment…are in fact a response to (the MRF) RFP.” He added that because the TDS document was received after the Feb. 9 deadline for the RFP, that section “should be rejected.”


TDS timed the city’s receipt of the document so that it wouldn’t be interpreted as a response to the MRF RFP. Instead, it hoped that the amended contract would be considered as an alternative to the MRF RFP. The company’s proposal also included pitches for a city wide composting and a north Austin trash transfer station (see In Fact Daily, Feb. 10). Smith specified in his ruling that the city is not precluded from considering any of those proposals.


Smith also noted that it is within the city’s legal rights to restart the MRF RFP and waive the city’s anti-lobbying restrictions for any respondents. This portion of his statement may have come thanks to troubles that both TDS and a competitor, Greenstar, have had with that ordinance. Both of those firms were initially disqualified from the MRF RFP after it was deemed that they had made inappropriate contact with city officials.


Greenstar’s disqualification was overturned. But the hearings officer did not rule on TDS’ status because TDS announced it would not be bidding—therefore making the question moot. Smith’s ruling does not make any direct conclusions that relate to the TDS disqualification.


In light of Goode’s remarks, it seems that the city has decided not to re-start the MRF RFP.


The City Council is scheduled to consider an extension of Greenstar’s existing contract at tomorrow’s meeting. TDS’ proposal covers services Greenstar currently provides.


Goode also discussed the difficulties that the city would have had in fairly evaluating TDS’ MRF proposal, had it gone forward. He called these issues “moot” after Smith’s ruling.

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