Travis County Commssioners Court
January 21, 2003
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Item 39
Item no. 39 is approve modification number 1, and make it contract number -- 032 [inaudible] oj for he have fuse collection and take any other appropriate action. Can we begin by you laying out the basically what the -- what the modification does, tom. 39. Approve modification no. 1 and making of contract no. 03t00074-oj, for refuse collection, and take any other appropriate action.
>> sure, or what it's intended to do.
>> a good way to summarize it, it's really basically the -- the language commissioner Davis original laid outs on a modification, back in -- when it came up in December, basically says if awarded the contract wmi will employ best industry practices at -- at their Austin community landfill, which is the one up on 290, or any other landfill where they dispose of waste pursuant to a contract with Travis County and then it provides that if they are issued any other notices of violation, notices of enforcement, any other kind of citation from tceq or any other citation as defined in your policy on consideration of a safety record and they don't immediately take the steps specified by tceq or whichever agency is enforcing them, that's grounds for termination of the contract.
>> so the mere existence of a citation is not enough. It's just that they would have to refuse to follow through with the appropriate remediation order from tceq or whomever?
>> right. If tceq points a problem, they don't fix it, it ground for termination of the dismrt.
>> in that order there would be a specific remadeiation order --
>> tceq always specifies what has to be done to fix the problem.
>> I'm just here to answer any requests questions.
>> let's say they don't follow through on something, how do we protect the county that we would want to trigger that clause, but still need to get our garbage picked up, how do we quickly make that happen? How to protect the county.
>> we discussed with the attorneys the court taking action today to -- to award a contract to Texas disposal contingent upon us enacting the termination with waste management. Texas disposal has agreed to sign such a contract. If we were to terminate west management, we would have a contract with Texas disposal waiting for us to move forward.
>> so it's a backup contract?
>> it's a backup contract.
>> do you know exactly how long would it take for a person where this particular contract as far as with waste management for the regulatory agency to, number one, note or let them know or put them on notice of violation and then for them to come into compliance with that violation and I guess it may depend on what the violation is. But the compliance history, as far as violations at this site, has been I think something that -- that has been brought to our attention as far as non-compliance for years as far as citing by tceq, at the same time tnrcc. I guess my question is, could we -- this still be something that this particular company will adhere when it comes to correcting violations of daily non-compliance. Again, this language was presented to the waste management inc. And of course they rejected it. They didn't want no part of this same language a few months back, last month in fact. So again, I'm really nervous about the non-compliance history, the same language was in there before in the past and of course they wanted -- they didn't want to -- anything to do with the language at that time. I'm pot quipsed that I'm going to support this -- not convinced that I'm going to support this either, based on a whole lot of things. I guess you all can take the vote, but I'm going to hold pat and stand firm on not supporting this particular item on the agenda.
>> ms. English?
>> good morning. My name is trek english. And I would like first to hand out a document, please.
>> who is this for?
>> I have a copy for each one of, I just haven't finished putting it together. So I am handing out one copy for you to have a quick look at it just to see -- to -- because I'm going to refer to it. And basically it's -- i've compiled documents that have to do not only the -- the non-compliance history throughout the united states of this company, but also the -- the conditions of this particular landfill, which is nearing a cess pool. The concentration, the leachate seeps are occurring on a continual basis. Most of the time this disappears because of hot weather. But they don't do -- -- if they do that much, and the leachate seeps are occurring right downgradent from the industrial site. The records that I have provided to you are their own records, their own notes, their own internal records between them and the company. There is a map there showing you how the contamination or the leachate seeps are using out into the creek bed and to the industrial site flowing into your site and eventually into walnut creek. So you may be paying for cleanup of your own site in the future. For something that is happening right now. And since you will not be paying it, the taxpayers are going to be paying it. So I would like you to look at this very seriously. Now, the -- the contract was awarded last week based on three of your votes. So I'm going to address myself to just three of you. Because I know that the -- the bid that you chose was much cheaper. But cheaper means nothing here. The contract price for waste management is substantially cheaper. However, waste management has had six outstanding violation and the second bidder, t.d.s. Had none. It stinks in the northeast quarter of the city on a continual basis now for over a year, it does not stink in the southeast quadrant of this city. Now, I know that t.d.s. Is in business to get as many contracts as they can. I have to assume if they could underbid waste management they would do so. Therefore I have to conclude that they are not able to give you a lower bid because to do so they would have to cut corners and use bad practices to avoid losing money on this contract. Eventually, they would end up having problems just like these northeast landfill and commissioner Gomez, then your precinct will be straddled dealing with odors.
>> yes, ma'am.
>> the language to be added to the contract is on the -- on this agenda today. I have a problem with the bidding numbers that you are -- that you are putting out. Because somehow it's not the same bid number that was on last week. Where did you come up with, there's a four in there that wasn't there a week ago. So -- so the bid number that's posted on the agenda and that you -- that you enumerated at the beginning of this -- this agenda item somehow I'm not sure why the bidding -- the bid number is not the same.
>> the bid -- the number that you see today ace contract number. The -- is a contract number. The ifb number was the other one.
>> fib, I needed to know that, I didn't know the difference.
>> sorry.
>> also, you had posted the -- the item originally as an award to waste management. And I notice it's no longer mentioning waste management. Well, I personally don't think that the safety questionnaire was answered properly. Because your questionnaire does not address all of the violation in each county. So have they answered this completely and given you all of the violation that they had in all of the counties in Texas? If not the whole country? Who is signing the contract? Is it wmi, which would be national or wmt, which would be Texas? Your bid did not -- did not specify that you are giving it to the -- to the longhorn disposal company. Even if it did, where's the compliance record with these trucks. I give knew that list of documents, I gave you an incidence in -- when one of the trucks, waste management trucks dumped over 290, are you going to tell me nobody gave them a ticket for speeding on that, there has to be a record of some type of violation on the trucks. So I am going to put forward the statement that I don't believe that the -- all of the violations were listed as requested in your bid. That really disturbances me because here you are -- disturbs me, here you are asking all of these questions and you are discarding them. Now, further language, why would you make the contract less enforceable than before by putting language that says that you have -- that they have to fail to respond to a notice of violation. Nobody unless they are comatose would fail to respond to a notice of violation. So someone else was going to address probably that subject, so I'm not going to go into it much more than that. But frankly the language that you are proposing is much weaker than if you didn't put anything in the contract. So that is no help to us at all. Because you are saying that you can have 100 violations, just, you know, respond to them. So what are they going to do, call you on the food -- call you on the phone and say, okay, I am responding. They are basically fulfilled the language of the law in the contract. That's all they have to do, they have to respond. And -- and the original language that you put forward a month ago, which said that they could not have any more violations, not one more violation, and --
>> [inaudible]
>> I'm sorry?
>> what was the source of that language?
>> the source of the language if.
>> that make a reference to now.
>> that was 4.12, adaora udoji month ago and referred to by ms. Grimes as -- as language that was put forward in the bid which said that waste management may not receive a notice of violation for a nuisance order from tceq at any [inaudible] landfill facility where the refuse is deposited. Violation will be dealt with pursuant to paragraph 34. This was put forward and discussed, I believe, --
>> about three or four weeks ago, this was --
>> right before the first of the year. Either the 23rd or the --
>> she's referring to the language that commissioner Davis wanted us to put into the agreement and waste management would not agree with that language. That was the original language, they would not agree to that. The language that you have today is the lapping that they would agree to.
>> yeah, I mean, I can imagine why.
>> so your position today is that the proposed lafng under consideration --
>> I would guess the proposed language because it makes the contract even weaker than your -- your safety questionnaire is very, very well laid out as to what they have to respond to.
>> you think we are better off without any --
>> well, I would like you to go back then at least to the language that you had before christmas because if think cannot promise you that they are not going to have another violation, then there's something terribly wrong. They can't just keep getting violation and staying in business and getting contracts because they are cheaper. They are cheaper because they have violations because they are cheaper. Because they don't do enough, they probably don't make enough money on that site to warrant -- I know they make enough money, I'm not going to tell you that company doesn't have enough money, god forbid, but I know they have enough money to do it right, but if the contracts are low, the money coming in is low, the standard practices are going to be low.
>> but we know that there will be violations of some sort out there.
>> not necessarily.
>> there will be violations of some sort out there just like there will be some violations at the county landfill.
>> if you look --
>> the question is how do you respond to the notice of violation and the language that I understand is intended say you have to get in there and fix the problem otherwise we will terminate the contract because of your failure to do so. The other thing is is a contract that is renewable annually for a period of three years or four.
>> a total of four years.
>> four years, if we don't like performance during any given year, we simply won't renew it. I don't know that it would be reasonable to say don't get any violation. This is an old landfill. I have never disagreed that this is an old landfill with old landfill problems. And I have also taken the position that I thought hoped they could do a whole lot more to avoid the violations. But I don't know that it would be reasonable for us to think that they won't get any violation in the future. I don't think that language would be fair. I think it would be favor for us to say, how long you respond to it, whether you fix it, if you don't. Them we take actions under the contract which is basically to terminate the contract.
>> judge Biscoe, if I may --
>> let ms. English finish.
>> actually, I'm going to let her talk to that because she's much more aware, I'm going to finish --
>> have you physical therapied ?
>> yes, I'm finished.
>> okay. What you gave us, it was belowed this document, we will copy that and give nerve court one.
>> I already have the copies, multiple multi-
>> I was highlighting the most important parts [multiple voices]
>> we will get those later today. Not on each and every page, that will take some time.
>> judge Biscoe, excuse me for being late, I'm robin schnieder with Texas campaign for the government. I'm sorry that I wasn't here last week, by I'm here to urge the commissioners court to not contract with waste management for your garbage. I think it sends the exact wrong message. With regards to some of the particular issues that have been raised right now, I asked this morning for the county to fax me the elements of the safety record questionnaire. On my data bus at my office, I have a data base of the investigations by the tnrcc of pollution complaints. On that, they -- they cite whether there were violations as a result of that complaint. There are at least four -- five instances in other counties where waste management has gotten violations over -- since these date from 1994 going forward, that are not part of the safety questionnaire. So it was incomplete before and it tips to be incomplete. With regards to expecting them not to get any violations, the question you just raised, I took a look at the Texas disposal systems safety questionnaire. They have had one osha violation and no environmental regulation violations, why would we go with -- with a proven problem at the waste management landfill and contribute more quantity to that problem when we have another option that has no record of environmental violations. The $40,000 that you would save has been more than made up with in terms of the time, staff time, of your staff dealing with this problem. You know, I was at the martin luther king, jr. Day rally and March yesterday with some of you folks, I heard speakers talk about the importance of demanding a response in terms of the values that he stood for. And to me it's quite poignant that dr. King was assassinated when he was fighting on the issue of sanitation workers. And their rights. And here we are dealing with another sanitation issue right before us. I think it is so stark, the contrast between doing the right thing and doing the wrong thing. That really for me it's beyond my understanding why you would even think of starting a contract. We already have all of the violations from this landfill in this county in the past year. We know they are not taking care of the problem. Why give them even one more year before you decide to revoke a contract? This company, like most companies, understands money. They understand contracts. This is a fight that you must fight! This is not something that you should put aside. This is a clear signal that you can send that we do not approve of your practices we are not going to put our money into your coffers. [one moment please for change in captioners]
>> is it reasonable to assume that we were talking about the place where our garbage would wind up?
>> yes.
>> is that a reasonable conclusion?
>> yes.
>> what is the difference between the two bids? I don't have those numbers in front of me right now. This particular contract, when tds, Texas disposal system, and -- I know the bid has changed as far as the results.
>> you're talking about the dollar difference?
>> the difference in --
>> the difference was $47,747.
>> 47,000 --
>> $747.
>> I said last week and I'm going to say it again, we can find money to do things when we want to do something in a 300 something-million-dollar budget, $47,000, a little more than that, is really not a hard hill to climb. Of course, that's the difns in what we're doing here this morning. And, of course, as i've said before, based on compliance history, based on the report that came through the contract process and the bidding process, with the violations that were notated to investigate those things, I just think this contract shouldn't have been awarded. And of course, I made that statement last week, so I'm ready to go ahead and vote as I voted last week. My vote's not going to change.
>> anybody else on this item?
>> just one last -- [inaudible - no mic]. It was decided by the amount of people that are affected by this particular landfill. And the odor has made us so miserable. I think I could come up with some figures, but I think you can talk in the amount of five dollars a head at the most that you would be giving up. And I'm being very generous. If I go all the way to parmer, we're talking perhaps 47 cents. So that's what this really amounts to, are you willing to put an extra 47-cent for each resident being affected by this and their health involved? And I know commissioner Gomez, you have a big heart and this should really touch you because it has --
>> well, I do, but I'm also thinking of we haven't come up with a plan on how to deal with garbage in this county. We still haven't come up with that plan. I still think that everything east of i-35 should not be the place for trash. If we continue doing that, then we're basically saying that in this county everything east of i-35 is the backyard where you throw trash and junk and all kind of stuff. And west of i-35 is the front yard of this county. But what have we done, though, in trying to eliminate the need to pick up trash from our parks, from our buildings, from everywhere, in order to dump it somewhere. And in this case east of i-35. And, you know, I guess I have to kind of say, along with everybody else, I don't think we ought to shift it from one side of east of 35 to another section of east of i-35. I still don't hear us talking about how we've changed our way of dealing with trash, the way we generate trash. And what are we recycling? Have we changed the way we don't pick up bags when you go shopping or pick up a bag that is repsychable? I hear what you're saying and I feel your plain and yes, I do have a big heart, but I also have -- I have a new year's resolution that I'm going to use my head as well so that I can make some really good decisions. I still don't hear a plan. And how in the world are we going to change the way we deal with things that generate trash.
>> commissioner Gomez --
>> if we don't do that we're going to continue having the same discussion in the future.
>> I have a response to -- [everyone talking at once]
>> thank you, judge, members of the commissioners court, I'm bob fwregry, chief -- gregory, chief ceo and owner of Texas disposal systems. We are the other party bidding this. I want to be very careful in how I respond to this. You've awarded this bid or -- there's been a vote to award it contingent upon language. There is a tremendous amount of litigation between our companies, siem going to be very, very careful.
>> can you speak up, bob?
>> I'm not here to ask you to reconsider this. I'm not here to ask you to not bid it mainly because of the litigation that's pending. This is an important thing, and I'm leaving it up to you obviously, but I just want to point out a couple of points of clarification. There's been a lot of media coverage on this. The media covered inaccurately, at least the report inferred something inaccurately, that a county official had reported that the -- the state purchasing act held you to the position and you could not award -- favorably award this to the low bidder. I don't believe that's true. There are requirements in this bid package for responding to a safety questionnaire that have not been responded to. The companies told you last week they were two different companies. It is not. It is one company. It's either risk management incorporated or it's waste management of Texas. The questionnaire is, as ms. Grimes pointed out, nonspecific alluding to the bidder. Whoever the bidder was, that's who has to report it. If asked for information on criminal violations for 10 years, actually for the life when you get to the back of it, forever, and environmental violations for three years and osha compliance for three years, it's very clear it's to the bidder. They did not respond beyond the local operation, I believe. And I think you should either have people respond, you should take it out of your bid package. You should enforce what you ask for. The bids that were posted, I did a comparison because we've been doing this a long time. In 1995, seven years ago, there were bids placed. That was a long time ago, seven years. A lot of traffic, a lot of added expense for travel time, a lot of insurance and wages and fuel and equipment, everything. I don't know of anything that's gone down in price. There's been a lot of service changes because the demands for the county, particularly in parks, has grown. I did the comparison between 1995 and 1997. Almost in every category where the bid services have remained the same, waste management's price is lower now than it was 1995. I want to give you the impression and I don't want you to be left with the impression by the things stated here or anyone else that tds is gouging the county. We're not. In two of those areas tds lowered its prices from seven years ago. In 12 different categories waste management lowered its prices. It gets real hard to compare when the service levels change dramatically, but the -- you are fine if you look at bids after the point in time when the city of Austin did an environmental study on waste management landfill and determined that it was in their view appropriate to disqualify waste management from a 30-year landfill disposal contractor and the low bidder. Since then their prices have been extremely low for the city and county bid. I believe in an effort to discourage folks from not awarding a bid and leaving them with a stigma. There is a significant difference in price and I understand that. And I'm tempted to lose the money -- because it would be a loss -- to do it, but I think I'm not doing that, I'm not offering that. I didn't offer it a few weeks ago. I didn't speak last week because I didn't think there was a chance that you were going to vote to award this given the operating record of that facility and given the fact that they had not responded to the safety questionnaire, but you voted, and so I'm hemmed in on how far I can go in my comments. On a best industry practices language, there really is no best center practice in this. This is an industry that has different procedures depending on the different size of landfills, so it's not one of those where one can come out and say you haven't used best industry practices. From a position of responding to a violation, as I understand the language and as the language has been supplied to me, I certainly have no problem with it for applying to us because basically it says if the landfill operator gets a violation, the landfill operator could get a hundred violations and all they have to do is respond. A response could be we don't agree with the violation. A response could be we will do something about it one day. If you look at the many violations that have occurred and look at the responses required by the tnrcc, it's generally very simple or very basic. It's something like start following the rules. So I'm not sure how you enforce against this. I don't think it is as strong as the bid package required it to be, so I think you've actually weakened it. Tds will honor our bid for three years, and we've offered, as we did before, to negotiate that at the point in time if it ever is cancelled to adjust to see if there are things that can be done to make the prices less simply by adjusting services, particularly where services may or may not be more than what they need to be. I don't have any reason to suggest to you that the purchasing hasn't done a great job of setting that bid up. I believe they have done a very good job of that. But they will honor prices. And we will stand by it in case something happens. But don't be fooled into thinking this language gives you new power. It doesn't, and it will not result in a termination of a contract regardless because they can always respond. And I think, unless it's changed since Friday when we received a copy, that's all that they need to do. Thank you.
>> let me refer to the language --
>> bob, I would disagree that they can respond in any manner they see fit. Based on this language they would have to respond in a manner dictated by tecq. The language says the failure to respond in the manner and within the time prescribed in such notice of violation. So wmi is not allowed under this language to respond to tceq by saying we disagree with you. This language says they have to do what tceq tells them to do or it's grounds for violating the contract. Is that weaker than the contract as it stands? No, it is not. Under the contract as it stands, you would not be able to terminate the contract if wmi were cited for any violations. So clearly this adds to the contract. It does not make it weaker in any way.
>> we voted to award the contract last week. I incorporated into the promotion basically a rirpt that there be a modification that I thought would give us mr teeth. If in fact this is not better, then we're stuck with the language that was in the r.f.p. Tom left me with the impression that this language is better than the language that we currently have, so if we don't adopt this or other in a modification to the contract, we're just left with the contract. And now, I'm relying on legal counsel that this is better than what we have. Now, there may be something that's even better than this, but I do agree no matter what language is in the modification, if we don't enforce it, then it's all for naught anyway. I think we're all more sensitive to what goes on out there than we were at any time previously. There are a history of violations, history of problems. The question is how do we exercise whatever authority we have? Number 4, I think, is a much bigger issue, and sub issues than this contract: as I indicated in my meeting with resident on Friday, we will never reach agreement on this contract. I have voted to award it to waste management. That's still my position today. The only question today is will we go with this modification language or not. And my motion is to approve this modification language. Right now.
>> second.
>> we have a second. Any other discussion of that motion? Now, next week there is an item that's a lot more general. Commissioner Davis is going to add some other stuff to it, another subsection. It's four already. May be five or six by this time next week that will be a lot more general. But really even that posting is for us to indicate in what direction the commissioners court will head right now. The same direction we've been in the last year or whether we want to change directions. That's a lot more general. This modification, this posting, is a whole lot more specific today.
>> the safety compliance reference I think are very important when we deal with these type contracts, and I do not want to override those compliance measures that have been illustrated in the contract. In my opinion not reporting those particular violations in my mind disqualifies waste management, inc. From receiving this particular contract; however, I want to make sure in the future that whomever gets the contract with Travis County, things that are left out of the contract, that they should respond to, especially on the safety compliance measures that affect the environment and affect the community. I think we need to latch on to that and make sure it happens. So I'm going to be looking real close in the future on this, but again in my mine they're disqualified, however, that decision has been made and I'm not going to support this particular vote to award wmi the contract.
>> all in favor of the motion?
>> just a question. Clarification on the motion. Does this include the awarding of the backup contract to tds?
>> that backup contract is news to me and my answer is no, that was not part of the motion last week. If you want a separate motion, I think that's fine with me.
>> is there a backup contract ready?
>> we're ready with whatever action y'all took today. We did post this so that the court could take that action. We worked on this last week.
>> I'm happy to offer a second motion after we get through this because we obviously have to have a backup contract in place.
>> I can put it on next week if that's the judge's pleasure.
>> the posting does not say specifically waste management. It is open-ended so that we have flexibility.
>> that's why we posted it that way.
>> but that wasn't what we asked for last week. The motion is for us to approve modification number one. It's not modification number one to anything. This is for the contract that was approved last week. And the contract number is down here for refuse collection. We only acted on one refuse collection last week. And take any other appropriate action. If that second part covers it -- does it?
>> actually, you didn't award a contract last week, judge. No contract has been awarded.
>> the motion was to award a contract to waste management subject to modification.
>> correct.
>> that was the exact language I used.
>> and that's what you're doing today.
>> 86 of one and half a dozen of the other. My question is my motion covers the modification only. On the backup contract, if this language legally authorizes us to do that, I have no problem with it as a separate motion, but right now the only motion before us now is this modification. And based on tom's assurance that this modification is better than the language in the r.f.p./contract without modification, this language is better, that's why I'm making the motion nivment more discussion today? All in favor? Show commissioners Sonleitner, Gomez, daugherty and yours truly voting in favor of modification number one. Commissioner Sonleitner?
>> did you want to acknowledge commissioner Davis' voting nay.
>> and commissioner Davis voting against.
>> I would move approval of the backup contract with tds, which I think is necessary to protect the county's interest if indeed the previous contract goes sour.
>> tds is agreeable to the backup contract? All in favor of the motion? Show commissioners Sonleitner, -- commissioner Davis, are you voting, sir?
>> did you say that you -- what did you say on that as far as tds' response to that?
>> I said we would agree to hold ours open as a backup contract.
>> in case this one falls through?
>> yes, sir.
>> my only comment would be that I would appreciate getting notified when we have other positions other than what we asked for in the ifb's or anything that we advertise to the public. To come to me now and tell me that there was another backup and it got negotiated without me being included at all, I object to it.
>> I need clarification.
>> I didn't know about this backup position until right now.
>> I didn't either.
>> that's not fair.
>> I will abstain.
>> that is not fair to me as a member of this court to --
>> would you like for us to withdraw and repost specifically?
>> that would help me feel a little better.
>> I would be happy to withdraw my motion and we can ask purchasing to please put this on with specific language related to tds.
>> I'm not a puppet.
>> I thought we discussed this in executive session last week. And the communications going between my office and the county attorney's office is a communication issue.
>> it seems like we do need to have a backup contract if we have a main contract that says that --
>> it makes a lot of sense. But discuss it with every member of the court if you expect us to vote.
>> you will submit an appropriate agenda item for that next week?
>> yes.
>> judge, can I ask one other question, and whether this is appropriate, whether this is a in connection week thing or not. I have serious concerns about this safety questionnaire on anything. And it seems like that ought to be brought back for absolute specificity because I think some legitimate questions have been raised about what's inclusive, what's not, and I think members of this court legitimately have drawn one conclusion and I think others have legitimately drawn another conclusion. And we need to spend some serious work on what we sent this safety questionnaire out for and to be very specific on language and what we're asking for, where we are asking for this information from in terms of whether it's a Travis County based something or operations elsewhere. We just need to be real specific because it is not fair to anyone on this court, but it also not fair to the public. They have expectations as to what it meant, and we have drawn other conclusions legitimately. I just don't want that safety questionnaire going out again on anything until we have some serious work as to its appropriateness, language and, again --
>> what was the previous motion made by the judge?
>> four in favor and commissioner Davis against. Somebody will submit an appropriate sum for the backup contract for next week and we'll have item number 4 back on next week. Thank you.
Last Modified: Wednesday, April 2, 2003 10:25 AM