Travis County Commssioners Court
May 4, 2004
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 14
Number 14. Receive briefing from the Travis County construction trade enhance. Advisory committee regarding the county's historically underutilized business program and take appropriate action.
>> is there some reason we didn't get this until now?
>> good morning, judge and Commissioners. Before we get started on this, I just wanted to point to betty chapa in the audience. Betty has been in my office for several years at if you've come in, you've seen her smile and been helped by her. She has moved into our specialist position that jorge vacated. We will be working with sylvia. She is very well equipped for this office, knows the office and the county. So we're glad to have betty on board. Thanks, betty.
>> you are welcome.
>> big promotion.
>> this morning we have members from the construction trade enhancement advisory committee here to update the court. Just wanted to give a brief -- just some background. The court had appointed this committee back in November and they've been meeting for several meetings. First couple of meetings they met just to sort of decide what their mission was and how to organize themselves. Sylvia has been attending those meetings taking minutes for the group. She's acting as a resource person for them and helping them get folks there that need to be there. The committee also met with david escomilla one evening to discuss issues and I met with him one night. I'm going to turn it over to sylvia who is going to introduce the opportunity and turn it over to carol and mr. Harper so they can give you an update.
>> good morning.
>> good morning.
>> I'm the h.u.d. Coordinator for Travis County. To my right is carol hadnot. She is a small business owner as well as a board of directors member for the community, mentor protege initiative she that's a long word. And to her right is mr. Harper. He's the president of the local Austin black contractors association. He also is a mall business owner and has been for over 20 years. And he is the chairperson of this committee. So i'll just go ahead and turn it over.
>> good morning.
>> good morning.
>> sylvia said my name is carol hadnot. We would like to thank you all very much for appointing this committee because it was very much needed. As cyd stated, we have met for several months to look over the h.u.d. Program. Your procurement policies and procedures, and to receive information from your staff regarding the implementation of the program. After much discussion and dialogue and the invigorating presentation we received from mr. Escomilla --
>> escomilla.
>> escomilla, we found out there is really nothing we can do. There are no alternatives we can do because we must be in compliance with the supreme court strict programs whether they are state, municipalities or whatever. Looking at this program we real I did not -- we have not done a disparity study at the county so there is absolutely nothing we can do. There is no enforcement. Only thing we can do is try to get people to do things on a volunteer basis, and I think sylvia has done a great job working with what she has to work with to try to get people to comply. After we reviewed some of the tracking reports, we found out many of the h.u.d. Firms were on those reports, but they never received their contract award. So therefore there's a fly in the program because you cannot -- even though sylvia can Monday for and ask questions why, if they decide not to do it, it's nothing she can do. So therefore those are lost dollars to those people in the business community who happen to be taxpayers in Travis County. So after looking at all that, we decided that, well, the most we can do now is go to the court and ask them to explore the possibility of conducting a disparity study. We would like the disparity study to focus or target specifically on construction because that's our mission, construction. We looked at other areas. We had a presentation from ms. Floyd. She came also to our commission. All the staff people have been very open, very professional, have given us the information we have requested. It is just a pleasure to work with people who do not have other agendas that are really trying to help us in the community and as well as cyd. Cyd came and gave us a presentation. So we think we got a very rounded presentation on the policies and procedures, procurement policies and procedures as relate to construction procurement, as well as to find out that the h.u.d. Program is outdated and it absolutely has no mechanism to enforce or to get people to comply with procurement participation from the firms in this community. Our recommendation is request the county Commissioners court to direct the law department taken purchasing department to explore the possibility of disparity study. We know cost is a critical concern during these budget times, however, if you would just target it to the construction and see how that goes, we could look at the other areas. We think you are doing a pretty good job in professional services, when we looked at those stats, it looked to be pretty good. It may be the nature of the beast because they are professional services, not saying that construction companies are not, but it's a tough marketplace to deal with. And so -- and in the supply services seem to be okay. So we're requesting that to seriously consider conducting a disparity study so that we can into the 21st century and give all of our citizens an opportunity to participate in the procurement of this county. I also want to make sure that I do not phraeupblg arrestize. The background information about the disparity study came from the city of Austin's disparity study conducted in September of 1993 regarding what you must do in order to conduct a disparity study. All the other in history comes from us. Again, I would like to thank the staff, and sylvia has gone a great job serving at a facilitator for us and we really do appreciate it and we just thought we needed to let you know when your staff is doing a great job.
>> great.
>> legally, can we focus on maybe one service for disparity study or do we have to include all of them in the disparity study when the disparity study is done in we just look at the construction industry or one that we definitely [indiscernible] but then leave out the professional services and other services. S that something we can legally do?
>> i've never studied that. I would be happy to take a look at it.
>> I would like to do a disparity study, but we have a lot of participants that do business and would like to do a lot more business with Travis County.
>> and we agree.
>> and I would like to include everybody in the pot. You know, instead of doing just one entity or taking a bite out of pie, let's focus on all businesses that have found hardships and turned away. They should be [indiscernible] example, not having a disparity touchdown i.
>> the only -- study.
>> the only way we went that way is simply fits going to be budget constraints, and we know that is the most problematic area not only with the county but other municipalities as well is the construction piece. So we thought if that was a problem, I'm sure there's some experts out there that can give you some advice if it can be customized. We do know the city of Austin is in the process of updating their -- they don't call it disparity study. It's called marketplace soefplgt but they're in the process of updating and they are going to all of the municipalities and educational students like aisd to see if they can get some collaborative effort and joint funding to do it as, you know, as a group and minimize the cost.
>> and that's legally I guess I would like to ask is there any way -- that's a good point you brought up f the costs can be reduced at all by [indiscernible] if that's also possible.
>> doing some kind of interlocal agreement?
>> exactly.
>> there's enough overlapping between the city of Austin and Travis County perhaps there would be -- this very study would be effective again. I would discuss wit the county attorney himself. He studied it in that --
>> Commissioner, we've been contacted by the city. In fact, we're trying to set up a meeting with their new disparity or their new director, and so we are going to be meeting with them either this week or next week or in the near future for them to talk to us about what their plans are and how we could participate and what the cost would be.
>> okay. That would be good information to have. I'm fully in soup port of ensuring that the hubs in this couldn't have an opportunity to do business with Travis County. I think the numbers aren't where they should be and I think we can do better, in my opinion, in what we've been doing in the past. And if this is a vehicle that we can get there, I would like to take a ride on this vehicle and see exactly what those costs -- a question I posed to legal, I would like to have that -- thank aou the other point that I need to bring out just from a resource management issue is if we do go through with the disparity study with city of Austin and develop a program based on that study, there will be a lot more work for us to do in the purchasing office. It will change the way that we evaluate bids. It will increase our tracking responsibilities. So there will be additional resource issues after we do the disparity study and adopt it. And I just need to, you know, make you aware of that. I have no idea, you know, i've mentioned this several times city of Austin has a hub -- does their hub office has as many people, 30, as my whole purchasing office do. So I can't, you know, I need to make you aware of that tpobg tore. We're willing to do whatever the direction of the court is and we look forward to working with the group to try to make this possible. But there will be some consequences. [indiscernible].
>> so will the city of Austin supplemental disparity study cover the construction or a broader area?
>> I believe they are doing all areas, construction, professional services, commodities.
>> so the recommendation today is we basically determine the feasibility of a disparity study related to construction. Whether or not it can be done that way, what the costs will be hopefully and make that determination as soon as possible.
>> as soon as we meet with the city staff, we'll be able to give you all -- hi asked for a written proposal about a month ago and still have not received anything in writing. We had a meeting scheduled and it had to be can he had. We are trying to get with the city to give you more details about what it is they are doing, what areas it will cover and what the costs will be to us. So we will try to get that.
>>
>> [one moment, please, for change in captioners]
>>
>> I just need to get a better sense of what is this plan that we are talking about, is it really necessary or just an investment, great, we share cost , doesn't fit the core issue that these folks are bringing forward to us to address.
>> that was our same question.
>> part two of that is has the city of Austin in this fiscal year committed dollars to do whatever it is that they are doing or is that the intent for next fiscal year, in which case you know we work on budget years. The last question that disturbed me what ms. Hadnot was bringing up substituted out of h.u.b.s, them not getting what they thought they were supposed to get, that disturbances me because I had that -- disturbs me because I had that come up in one of my contracts not related to a hub. Generally speaking the contractor does not have the permission of the county to substitute subs without telling us. My question is: are there some things contractually that we can address related to the substituting out of h.u.b.s and get cut out that are actually already within the boundaries of contract in terms of enforceability. We that this issue with one of our contractors subbed somebody out, somebody else was brought in, they didn't have permission to do that. Only the purchasing agent could sign on with that kind of thing happening [indiscernible] is there a way to go back on some of these [indiscernible] brought up, where they can't do that and we have the contractual means to enforce that.
>> david escomea was going to although at that issue, again research -- to look at that issue. Basically it would be a breach of contract.
>> exactly. What's the point of having something in the contract saying you can't do that if somebody does it, if we don't do anything about it, they are going to continue to do that kind of thing. Which is not right. It's not right. That needs to be corrected.
>> need to be addressed.
>> yes, sir. > sylvia, do we have verifiable evidence that shows that m.b.e./w.b.e.s do not get business for -- [indiscernible] -- is there verifiable evidence that that is the case with the business that we do with the county? I mean, could we -- could we show that? No. We don't that that data. So we don't have that data.
>> the one time that we -- I believe one time that we did have a challenge, we were given evidence that the pricing of the h.u.b. Was higher than the others. I believe we did get that evidence. But that was -- that was one particular case.
>> I remember --
>> was -- [multiple voices]
>> basically what sylvia is tracking is how many dollars we are spending with h.u.b. Firms and h.u.b. Subs. I mean that's -- that's what -- that's about all we can track.
>> okay.
>> with a disparity study, should we've one, will ask for, our program was reviewed by ms. Holt out of chicago. She had said that one area is to not just track h.u.b. Subs, but track all subs, subcontractors and that will increase our efforts a lot of what we need to do. Tracking the data.
>> the data.
>> not just for non-h.u.b. Subs, but just everybody and --
>> well, help me here. I mean is what this whole thing is about -- or is it about -- that -- that we want to have a mechanism to not just suggest that x percentage of work goes to m.b.e. W.b.e., But we want to have something that ensures, is that really what this --
>> what the disparity theme would be, a mechanism that we would have with the county that says you know what, we have a specific rule that says we can't do this job unless (noise (percentage of it is done by m.b.e. W.b.e. Is that really what this is all about.
>> you have to do availability study. You have to determine what's in the marketplace. So if the county is doing a lot of infrastructure projects, the county has done an availability study, it shows that h.u.b. Firms do not have a high percentage in those areas, most likely you would not set goals or if it is it's a very small minimum goal. Whereas if you were doing something else, for example, maybe building project arrest a precinct or something, where you have a high level of availability because you have more h.u.b. Firms in the building arena than you do infrastructure projects, then you can look at those goals and setting specific goals to achieve. It's an -- it's a goal to achieve, okay? It's not you must do this. But this is what we would like for you to achieve. On this particular project based on what we have in the marketplace.
>> but my understanding was that we would, if they did not meet those goals, we could reject those bids based on that. That was my understanding of having the disparity studies and we would finally be able to say you do not meet these goals, you are rejected and we are going to the next low bidder.
>> okay. But there may be another piece to that because just not meeting the goals, they also have to show a good faith effort. So there may be a reason why they were not able to achieve the goal. The reason could have been that that particular scope of work they had no availability. So they -- they did -- they had to do these things, go out in the marketplace, find out whether they exist or not. If they can prove that they did these things for good faith effort, then there's no reason to reject the bid. However, if they did not, then that would be a reason.
>> you can see the amount of work that that will entail.
>> can somebody give me a sense, not for today, just for follow-up, we have got our -- our compact staff and then the city of Austin has 30 you said in their h.u.b. Department. What's the differential in terms of the percentages, in terms of meeting certain kinds of goals, certain kinds of areas? Is there a radical difference between how well the city is doing with 30 people versus how well we are doing with five or six?
>> well, of course I'm buy ed, I think we are doing great. Sylvia is the expert in the numbers.
>> last year I think our numbers were higher. The thing is that they do goals differently than we do statistically. We look at 30%, that's it. They have several goals in several category, so it's difficult to compare them.
>> which we just adopted theirs, sylvia is trying to figure out how to --
>> carol brings up a very good point. I know on the electric department contracts, those things are very specific kinds of things in terms of the equipment that they need to buy. They have h.u.b. Goals that are practically point whatever because there just isn't that availability in that very select group of stuff, which there's a huge part of the city council's budget is the electric department. I could skew through full numbers, but seems like we ought to be able to check commodities, professional service, construction kind of things, those are our three big categories that we have here which have counterparts over at the city.
>> the city that different ways, they do goal setting. They have a general goal that they base on availability in the marketplace. They have it for each ethnic group. Then project specific goals. Those are based on ethnicity. Then d.b.e. Goals, federal guideline goals. Then you have goals for professional services. Based on the marketplace. And then you have goals for suppliers and commodities. So they have different kinds, a new system, cyd, we talked about it, what they call noacial, they throw -- what they call [indiscernible], spits out the numbers what the goals should be, they have the automation and it's expensive. You know, you have to have the automation to do this, to do the calculation. And then it tells you what the goals should be for each -- for that particular project. It could be general goals, it could be ethnicity goals or it could be d.b.e. Goals or just m.b.e./w.b.e. Goals.
>> what the city staff does --
>> in conjunction with purchasing.
>> in the departments. Sylvia and I went over and looked at that e capri system. You put in the plans and specs for a precinct 3 building, it would do all of these calculations on how many cementers, how many haulers, how many you know every trade is in there, then it does a search, comes back, gives you just like carol is describing numbers, you should be using one percent hispanic contractor for this. So you've got the public works department entering information into that system. It's a very complicated system that they have that calculates these numbers for them.
>> they don't have 30 staff members. They at one time they did, they have like 17. That's still a high number. The other piece is small business assistance center which has been slated from the department of small and minority businesses resources. They just did that recently. Under dsmbr.
>> moved over.
>> my motion is basically to do the feasibility assessment and reported back to the court. Some questions have been given today [indiscernible] governmental entities, ought for know what the county's piece will be if in fact we participate. If we can carve out a construction part, let's look at this. What advantage is the disparity study offered over the current approach. At some point compare the required investment to the likely benefit. Any other considerations that -- that the county attorney's office and purchasing the Commissioners court should consider in -- when this decision is brought back. Basically this is to proceed with the feasibility determination, understand --
>> well, the city's time line is what, a year?
>> [multiple voices] it might be six months before we come back to you.
>> judge, I second that. Did you include the question in the motion that I posed to the county attorney, basically the ones that if we could isolate what was it -- can we just isolate the instruction opposed to the exclusion of everybody else, all of that is included in the motion.
>> fine with me.
>> all right. The other thing that I would ask is that we get an update in 60 days.
>> yeah.
>> I don't know that -- that 60 days we will know whether we are --
>> we should at least have met with the city by then and know some little bit more. We did talk to colletee a little bit about doing just a construction. Her thoughts were, if you go with the city you are probably going to spend about 100,000, an entire study if it meets our need as Commissioner Sonleitner pointed out, which is a question that I had. Or we take 100,000, just do the construction piece. We just need to do a little bit more research to give you some intelligent answers.
>> is ms. Has thenot and mr. Harper going to continue --
>> oh, absolutely. We need champions and they are the champions on this project. [multiple voices]
>> we need their help.
>> is that motion was seconded by Commissioner Davis. Commissioner?
>> well, i'll just having a hard time understanding what we are doing, if we don't have an issue, if we don't have verified evidence that somebody is not getting business, I guess the study I mean, you know, I don't have a problem with the study. I mean but somebody has got to be telling me that somebody is not getting dealt fairly with. I guess that's what's, I mean, can we just say that? Is that really what this is? If it's not, then I don't understand, I mean, james you and I have known each other for a long time. Just talk straight with me here.
>> from being in the construction business myself, right now the way the system is set up, is that I can bid all day long, if they don't want to use me, they don't have to use me regardless of what the number is. There's nothing in place here that stops them from getting the award. We have nothing in place that would tell them, well, you know, because it's -- my understanding is the -- to low bid, so you have nothing in place that says, I mean, even if you don't even come close to the goals, if he's the low bidder there's nothing in place that you cannot -- at least since i've been involved, I have not seen [indiscernible] deny any contractor an award because he did not meet those goals of whatever it is. That's just not in place. So what you have is like I say after we have met with -- with the purchasing department who did a get job. She bought us what I always said a loaded wagon with the clydes detail horses and -- then after we met with the law department, he took away the horses, we was strand. That's when we realized if we don't have the disparity study we would be left in the desert with this loaded wagon, not be able to go anywhere with it. That's where I feel like this court is with these contracts. You have nothing in place but hope that I have a good contractor that comes in that's to go do the right thing. If he's not that doesn't help. Just like the substitute. Well, it's supposed to -- I mean somewhere, I haven't read you your laws, but I mean I would say nine out of every 10 contracts something goes wrong on, never reaches this court. Never reaches, because you don't have enough people tracking anything to get anything. The people that's supposed to be doing the work in the field, the project managers, useless. Because that's not his job, he could care less about what he's doing, his thing is to try to get that job completed under budget. Regardless of what is out there, he don't care who is out there. Most of the time he don't even know who's out there because nobody gives him a list to say hey these are the people that are supposed to be in this job. You need to see if that they are on this job. His thing is let's get the job done. That's the problem that you have.
>> so is the substitute a problem? I mean is that really the issue?
>> no. [multiple voices]
>> just one of the issues.
>> just one of the issues because if you look at the tracking reports, which I think they are very good, it's very good backup documentation to support the disparity study, you would see everybody who was supposed to be a sub-- to receive a subcontract award, then you will see how much money they have received, then you will see how much it is left, then you will see if the job has been completed. A lot of those columns the job was completed, the hub firms did not receive one dollar. They were never called in to do their scope of work. They had to be substituted to get that scope of work done. So there was some consistencies in the report that showed that. Now, the professional services, that happened very rare. But basically was in the construction side. Where you would see that in the reports. Sylvia has that backup documentation.
>> I guess that I need to ask that question again. Is there evidence that would support what ms. Hadnot is saying?
>> uh-huh.
>> there are issues?
>> yes, sir.
>> so can this be taken care of now?
>> no.
>> no. [multiple voices] we can't take care of these breach of contract.
>> it gets very complicated.
>> two major issues. We have addressed the contract issues at times -- whenever we wanted to focus on a subcontractors and we drafted provisions that call them in default and the work stops until -- until the proper contracts, proper subcontractor with similar background is substituted in their place. As to what opportunities to come up as to how do you solve the big picture, are there problems, that's the whole analysis of what a disparity study does. That if you can determine there are problems, then you implement the fixes for those problems. So we can fine tune little pieces of it, with contracts, but to solve the major issues in the community, you need the disparity.
>> okay. But it sounds like this is a problem that -- that that's one of the reasons that -- I mean, even if you select h.u.b.s and the -- and the general contractor can substitute, that's a major problem. Because that's -- that should not be allowed. Who takes responsibility for making sure that doesn't happen? Whose job is that?
>> well --
>> I think what mr. Harper was saying is that the work continues to forge ahead, on time, under budget, the problem of a substitute contractor, sylvia is tracking it. For the momentum --
>> if the -- [multiple voices]
>> I understand momentum, but you know the thing is, is that going to continue to be an issue even if -- with a disparity study?
>> well, one thing [multiple voices]
>> resolve this problem.
>> well, it's going to be a staffing issue. If we are -- read now sylvia is tracking 72 contracts. Or just -- or just their h.u.b. Subs? So that's about how many contractors, would you say? Double?
>> on the average it's four subs per contract.
>> four h.u.b. Subs.
>> by the time we are into the project, the work is being done, we are not getting the -- these payment invoices to look at and we are calling, okay, well, you are not sending the information, we need this information, we can't -- the project has moved on and they have substituted contractors and we don't know it. So it's a big resource issue for us to be -- we are not on the job every day like the inspector for -- for f.m. Or t.n.r. So we don't know who is actually out there on the job working. We find out about it when the payments don't start coming into the folks that they said in the beginning that they were going to be using.
>> that's generally about a 30 day delay.
>> yeah.
>> the harm has been done.
>> so you are saying that we don't have anyone on the job whose job it is to track those -- make sure that no substitutions are being made.
>> I guess what I'm saying Commissioner is that we are doing the best that we can with the resource that's we have. When contractors -- I mean we are basically, when they are not turning in the information sylvia is calling them, reminding them that they made the commitment to us, but I don't know that we have gone after any contractor for breach of contract because they did not use the h.u.b. Sub.
>> I think that could be a major part of the contract, john, I really do.
>> that's the enforcement technique. I can draft provisions all day. But unless you have someone who can take advantage of the substitution the day it happens as opposed to sylvia, it's a 30 day delay when she gets the documentation.
>> that's if we even catch it within the 30 days. We are on the phone calling all of those folks saying that you need to provide us.
>> the point is, though, I understand where everybody is coming from, I understand what everybody is saying here, but the point is this: our project managers, who we have control over, as far as a lot of things, I don't know if they are -- these are the people that are supposed to be working on the project out there in the field. If someone is there that's not supposed to be there, then it's apparent that we should know that. And of course that in itself would let us know that there's been a substitute. And so -- so just a matter of communication it appears to me. In other words, when you go out on the job like that, you should know these are the people, I can understand where the Commissioner is coming from on that.
>> the project managers that you talk to to call this to purchasing's attention?
>> right. It --
>> well, the --
>> from my experience, when I -- when I was awarded a job from the county, I did the old san antonio highway road, I mean never at one time did the project manager ever ask me who was supposed to be on that job and if they ever showed up on the job, but because -- because I was a minority myself, I made sure that everybody got what they deserved on that job. But most of the times, with the contracting that we are dealing with in this city, that doesn't happen and you don't have anything in place to -- I mean, that was one of the main problems that we dealt with the city. Is that if the project manager -- okay. If the project manager don't do it, it don't get done. He's the onliest one that's on the job every day.
>> so it's the project manager.
>> it's the project manager.
>> yeah, we need to focus on that I think.
>> yeah.
>> that actually Commissioner is one of colletee's recommendations that --
>> pardon me.
>> > remember ms. Holt.
>> from chicago, yeah.
>> that was one of her recommendation that's we work with the project managers to monitor more closely who is out on the projects, who those subs are.
>> I think that need to be done.
>> I think the part, too, that goes with that. If somebody doesn't do the right thing, can we legally take that into account the next time that person is up for bid? It's almost like having liquidated damages. If you have ever had liquidated damages, one of these kinds of disputes that takes points away from you.
>> now, that's the point where we are lacking with the disparity study and everything that goes with that. That's your whole belt and suspenders.
>> with the disparity study that would get us to the accountability piece built in. That gets into my original question. If what the city is proposing is not a disparity study, is that vehicle going to get us those suspenders that we just now talked about.
>> that was my question, Commissioner. [multiple voices]
>> we have tested the marketplace, oh, darn that's a shame.
>> that may not be the mame problem.
>> exactly.
>> in the meantime, what we can do, I think Commissioner Gomez brought up a good point, keeps hammering on it, mr. Harper there, is -- is to eliminate the substitution situation whereby folks are substituting without the knowledge of purchasing and without the knowledge of this courthouse. We get out and tell these folks things. Of course we expect that to happen. Those substitutes take place it appears that we show have knowledge of that. So communication again I think is the key, maybe something that we can do in the future, I mean immediate future because the -- because the disparity study itself is going to take time. But if we can correct some actions through action now, I think that it's something that we maybe can go ahead and direct. Were you going to stay something.
>> judge, Commissioners, marvin brice with the purchasing office. Being the former h.u.b. Coordinator, now in the construction section, I thought that I would interject here. In the construction documents, there's a provision in the h.u.b. Section that requires the prime contractors to notify the purchasing office prior to a substitution of a h.u.b. Subcontract. We do bring that out in the preconstruction conference before we start work, we bring that out. The problem is as james and mr. Harper, ms. Hadnot had said, the notification is not happening. We tell them that's what they are supposed to do. But we really have -- there's no provision in the contract that -- there's no penalty for them not doing that. The whole program is based on a good faith effort. There's no teeth in the program. We ask them to notify us in writing, they don't there's no penalty. Nothing that we can do legally based on from when I first started the program meeting with david escomea at the time, he wasn't county attorney then, he was assistant county attorney. Some of the things that he told me, the way I initially had the language written, the contractor shall do, there will do that. He said we can't have those provisions in there because we hadn't done the disparity study, so therefore there's really no teeth in the program, it's all based on a good faith effort. As I said during the preconstruction conference, we do notify the prime contractors that you are to notify us before substitution, but if they don't we have no recourse.
>> even so, though, I appreciate what you are saying, marvin, I really do. Even though with that language there, that's something that's suspect as far as who I'm hearing. But still it would be good to know who these persons are, who we contract with, that are making the substitutions during the course of the project. I think that's something that's a valuable information because I'm looking at it personally and making an evaluation from my point of view from looking at these folks, of course that's from another angle, that's something that we can do now, legally, to eliminate this situation as much as possible about the disparity study is completed. But I would like to really visit that. Something we can do to visit that.
>> I understand. We are aware at the beginning of contracting process, Commissioner, we are made aware of who the primes --
>> I would like to know who they are.
>> gel get that information to you.
>> I would like to know who they are.
>> that's signed not only by the prime, but by the h.u.b. Sub. But unless someone notifies us, unless the h.u.b. Subcalls us says hey I'm supposed to have a subcontract on this particular job, we never know until actually as cyd said once the invoices are rolling in, there's a tracking report with that, where the prime contractor is to list the dollars that are going to that sub, we never know until these reports start rolling in whether that h.u.b. Subreceived the dollars short of us going out, us being the purchasing office, us going out and being on the job, as cyd said that's resource intensive. We are basically relying on the good faith effort that the program is built on, relying on the good faith effort of the prime contractor.
>> maybe there's legitimate reasons for them substituting, maybe not, I don't know. But it appears to me that something ought to be resided in writing. I really would like to stay on top of this as much as possible. If you are going to make the substitute, then why, why are you making the substitute on this particular project? Substituting one business for another one during the same -- doing the same scope of work. So that appears to be to be something that we need to address. I'm going to leave it alone.
>> cyd, let me ask the question one should itly different way. Put the h.u.b. Program to the side for just one second. Under our contracts, does a prime have the right to substitute anyone of their subs without Travis County's permission?
>> as I said Commissioner, there is a provision that aware of in the h.u.b. Section of the project manual, but as far as any other contractor, I don't think we address any other subcontractor, it specifically speaks to h.u.b. Sub, that any substitution of the hub subhas to have the approval of a purchasing agent.
>> I guess that. But I'm recalling one of our northern projects where we did that, that was one of our little leverage pieces is that that person was substituting out a suband I don't believe that that was a hub sub, hit to do with a subthat was our leverage to get that person's attention on some other issues.
>> well, in that particular case if I'm remembering it right, the subcontractor was not performing up to our standards. That's why we took actions, it's not that they were substituting someone. It was that subcontractor was not performing.
>> okay.
>> isn't that generally, though, why somebody gets substituted? Is it not performance.
>> not in the redo [multiple voices]
>> marvin, sort of explain how they submit their bids. They have to submit their bird at 2:00. They were sort of out there. They might have five mr. Harpers what they are work -- that they are working with. Trying to get in at 2:00, they put mr. Harpers name on there. After the bid is open, they go back to those five people, they decide ms. Hadnot could provide that service cheaper. So that's why where a lot of it gets substituted is -- then we are not notified that they have switched.
>> a lot of these subcontractors won't provide their primes with the number to the last minute bid shopping. As cyd says a lot of time they still bid shop. They may select mr. Harper, once they go back and actually finalize their bid, to shorten the number, they have ms. Hadnot say could you perform this same service and give me a price on that.
>> do we incorporate documents into bid contract?
>> yes, sir, they do. The actual bid form is a bid form with a three page document that listed a lump sum bid or unit prices are altered prices that are made a part of the actual contract.
>> we will go back and look at the language on both t.n.r. And facilities on substitution of -- of --
>> how do we make a listing of a h.u.b.? A contract enforceable item. It seems to me that -- that disparity study aside, if you contract with the county to provide certain services, with certain h.u.b.s or subs, then contractully you need to figure a way for us to rely on that.
>> they would be in default, they couldn't charge us lost profits, damages or anything because that would be their fault.
>> what I have in mind is not making a payment to the prime in full unless there's some evidence that the h.u.b.s have been used and paid.
>> uh-huh. That seems like a fair document that we could draft.
>> yeah.
>> that's not a whole lot of tracking, that's not project visiting, that's looking at invoices and payments by the county. [multiple voices]
>> we have a means in the contract now, the contract tracking form, that lists the hub contractors that you told me early on in the process, I should see those same hubs on that payment tracking form.
>> exactly.
>> at some point I should see dollars going to those subs. I think as mrs. Hadnot sill via return referred to the reports come in, no dallas. The end of the project the dollar are still gone. It's kind of a paperwork game going on.
>> it will take more researches on staff's part to enforce this. We are having a hard time tracking the 72 contracts right now. We are just tracking the hub subs. Not just the subs.
>> what are we talking on those --
>> the payments, who the prime contractor is, the description of what they will subout and the dollar amount. Then each month they provide with us their invoice and attach with that is the payment report saying this is what I paid each of these hubs that I listed. Just getting that sometimes is a challenge. I can call people and send them a nice letter, you forgot to send this with it, but it's difficult to get that. I see more and more different names of subcontractors that were not initially on my report. Sometimes that happens eight months later, nine months later. It's difficult to backtrack to all of that. For 72 contracts. Now, should the study happen and we start seeing what we need to do, they are going to talk about tracking payments to everybody as far as subcontractors and substitutions. That's a great task. And --
>> we are tracking this john doe receives a payment for $2,500, but our record shows that it actually should have been [indiscernible], what do we do?
>> well, what I did is create a form saying first of all, give me the reasons why you substituted this person, this contractor. But that's even after the fact. Other than that [multiple voices]
>> why shouldn't our question be what authority did you make the substitution? By what authority. And don't you owe us the $2,500 back?
>> yeah.
>> we may be making the job a lot more difficult than it is. Seems to me that we are already doing the tracking. The problem I think is that where we find this a promise has not been kept, there may be confusion about what we can and cannot do.
>> uh-huh.
>> in my view, if it's a contract responsibility, that's a lot simpler than our reliance on a disparity study. You put the disparity study in place, this substitution issue still does not have to go away.
>> right. But my understanding is right now we don't have a legal recourse with the disparity study we would have legal recourse.
>> that's one of the question that's we are asking legal. Part of the feasibility study when you report back. Seems to me, too, the question is what can we do right now.
>> exactly [multiple voices]
>> what really [multiple voices]
>> now, if we have the means, but we just need additional resources to get the job done now, that may be better than paying for a disparity study and getting -- and paying -- getting the same resources, you see what I'm saying? At some point tracking all of this stuff is not -- doesn't get you money.
>> right.
>> so the question really is how do we get subs on the job where they can provide services and get paid. And [indiscernible] get that done, fine. If enforcing contract or beefing up the contracts and we can legally do it now and provide more enforceability as a way to get it done, then if we ought to do both of them, what I'm thinking is the foesibility study we basically would look under all of the stones and try to figure out what's the best thing to do.
>> the other thing that I think is almost -- I'm imagining is the -- the primes are coming in, they are saying, yes, we will use hubs, but they don't have -- they haven't committed to anybody. Think leave that open, you know, because it's too -- to their advantage to leave it open. Then at the very end, the side of the last minute, depending on the cost of the project to them, I don't use this person instead of this person, they kind of move, that's a moving target, too much. And so it seems to me like we need to make them commit at the beginning who exactly are you going to use as hubs and not wait until later.
>> yeah.
>> that's a lot easier to hold them accountability at the end -- accountable at the end, you said you were going to use this person, you didn't, what happened?
>> at contract award prior to issuance of notice to proceed, there's a form called notice of intent form that they should give us and basically it basically verifies, no hub subs, you told me that you were going use with your bid. I need to see that notice of intent for each one of those, we get those. We don't know if they are using those hubs until we actually get the first payment report. What I think we be a good hammer for us, it's a legal question. When we get that first invoice, if I don't have that payment or sylvia doesn't have that payment tracking, [multiple voices] legal question because number one I don't think there is a provision, there isn't a provision in our project specifications or our terms and conditions that allow to us do that. [multiple voices] number two, can we put a proper [multiple voices] in there that would allow us --
>> it's all about contract [multiple voices]
>> contracts.
>> this is so similar to the discussion that's we had related to our social service contracts. If we are not specific about our expectations in an invoice, we have no right to expect that -- in terms of the information that we are expecting isn't in there. We may need to take a look at what's in that invoice, what information do they have to report, it comes to a completeness. Because it doesn't do any good if we have that intent, many months after the fact we are finding that the dollars don't really flow there. The way to yank and get their attention, you don't even get paid [multiple voices] until you have satisfied or signed off that you are still using these subs and hubs and the collars that need to be reported -- dollars that united to be reported. We ought we expect those certain payments to go out. If something is at the front end related to concrete for example, you would expect to see that in the beginning part of the project. If it's the landscaping, that would be at the end. That way we have the expectation of not saying six months after the fact oh, in concrete framework you didn't use mr. Harper as you said you did. [multiple voices]
>> actually, who we ought to do is not issue the notice to proceed until we have all of that and their assurances.
>> you have that up front. [multiple voices]
>> start the project, start stopping work, you have all kinds of things to consider. We have to find a mechanism not to turn them on to the work until we have that commitment from them. [multiple voices]
>> a disparity study would allow due process. It would not only allow due process, cyd is actually correct about resources because even if you get the list, that does not mean that that hub firm was contacted to participate, so that has to be some follow-up mechanism -- [multiple voices]
>> we allow everybody so much due process.
>> I'm talking about the hub firm. Someone substitutes them, many times they do not get due process even if it's an issue of performance. They don't get to come in and talk about well, their position of why they felt that they would not -- would not be legally substituted. I'm saying there arrest whole lot of other components, other things with the disparity study that has to do with resources again. There are random follow-ups in the field. Site visits to see if these firms actually are out there on the jobsite, if they are actually performing this work or then you find out a lot of times that people have been substituted. So it gives you a lot of things that you can do to ensure enforcement and compliance.
>> one other thing that you need to really be careful about is that -- a contractor can say this is who I'm paying, but that's not who is getting paid. Right now you have nothing in place. If I send them something saying I'm paying joe blow, his brother, whatever, who is going to know if nobody. I send the paperwork in, but you didn't -- the county won't see my chicks. Checks. You are taking my word for it. If I'm the devil, I'm not going to -- you see, you have nothing in place to check anything. Just because you see it on paper right now, it's saying something, you have nothing in place to deal with it. Hopefully with the disparity study you can do more and enforcing making sure that you can ask for certain things that right now I don't think that you can even ask for.
>> well, looks like at some point the court may need to get that -- get that another legal presentation that the committee got. It's my understanding that we can do a little bit more than I'm hearing. But now I'm hearing disparity study on one end, also enforcement resources on the other. Some of this, if I wondered whether john doe subcontractor in fact received the invoice that the paperwork said I would call john's company. I got you on this project as receiving, you know, 12,000 bucks, this is just a phone call to verify that you provided the service and got the payment. Joe may say I'm glad you called, I haven't gotten anything yet. Then we have a problem with that. So on the one hand I'm seeing [indiscernible] projects, the other is phone calls, we can make a lot more phone calls than visit I think. But the question is what you are saying that is there are problems, it's going to take a whole lot more to fix 'em. What we need to do is figure out actually what? In the feasibility study, I'm sure david has been listening, there's a whole lot of questions asked. So we would expect these to be answered as best as we can answer them in 60 days, to see where we are moving [multiple voices]
>> for sure.
>> yeah. I would like to just mention one issue that I see coming in more and more on the documents that the primes provide. I'm seeing more that they will do it themselves which eliminates the need for hub subs. There's no mechanism to follow-up. We say okay well let's go to the next one. That's becoming more and more of an insurance. Called self performing, to eliminate hubs altogether and subcontractors. That's something else that we will have to start looking into. To call and say are you sure there are not opportunities, this one was able to find opportunities for hubs, it's very time consuming to do that.
>> or ask them why that change had to take place so we can learn more what was we need to do.
>> right. Well, we send them a letter saying we are here to help you, if you need hub subs, if you find opportunities later down the road we are here.
>> regarding self performance, they will say we are going to self per form, there's no such thing self per form, there's something that they are going to have to buy outside of their workforce or contract with. So if you look further down, they contracted with someone else, you just didn't catch it.
>> we may decide to go with the city or own thing whatever, that's going to take six months to a year, I'm interested in finding out those things right now that we can do before we have to wait on the result some of other study. There's got to be some things within the contract that we are allowed to do.
>> maybe we can have one Commissioner come to our prebids try to flatter them like we've tried. Reready to have some legal teeth, too. We are doing the best we can with what we've got. We think this is the next step that we need to take.
>> right now 60 days?
>> uh-huh.
>> sure. Any more discussion of the motion? All in favor? That passes by unanimous vote.
>> thank you all very much.
>> thank you.
>> thank you.
>> move rerecess until 1:30.
>> second.
>> all in favor. That passes by unanimous vote.
Last Modified: Wednesday, May 5, 2004 7:38 AM