Procurement investigation-2.

WORKING DRAFT
2016
State of Wyoming
16LSO-0425
Introduced
1.2

House

JOINT RESOLUTION
NO.

HJ0011

Procurement investigation-2.

Sponsored by:
Representative(s) Gay

A JOINT RESOLUTION

for

A JOINT RESOLUTION relating to the state capitol project; calling for an investigation regarding contract bids and the letting of contracts and potential conflicts of interest relating to the project.

WHEREAS, the Governor of the State of Wyoming and the Attorney General hold the statutory responsibility of overseeing compliance with the procurement statutes contained in the Wyoming Statutes. In holding the Office of Governor and the Office of Attorney General, the Governor and Attorney General respectively, are entrusted with the responsibility for ensuring compliance with the Wyoming Constitution and the statutes relating to procurement
; and

WHEREAS,
2014 Wyoming Session Laws chapter 40
, created a body to oversee procurement and construction relating to the
"
Capitol Square Project.
"
This body is known as the
state capitol building rehabilitation and restoration oversight group
and by law consists of the
Governor, President of the Senate, Speaker of the House, Senate Majority Floor Leader, Senate Minority Floor Leader, House Majority Floor Leader, House Minority Floor Leader, and
an additional member of each house of the Legislature
. Pursuant to W.S. 9-5-111
and the Wyoming Constitution
,
the
Governor
and legislative members of the
state capitol building rehabilitation and restoration oversight group
are
responsible for ensuring compliance with the Wyoming Constitution and the procurement statutes of Wyoming as pertaining to the Capitol Square Project
; and

WHEREAS, members of the House of Representatives, through independent investigation, are in possession of information relating to potential violations of the Wyoming Constitution and the procurement statutes of the State of Wyoming and have brought these matters to the attention of the House of Representatives. These potential violations of the Wyoming Constitution and the procurement statutes
include the letting of contracts without utilization of the competitive bidding process, as required
; and

WHEREAS, the potential violations appear to constitute
a
pattern of conduct of violations of the Wyoming Constitution and Wyoming statutes
; and

WHEREAS, the potential exists that contracts were directed to specific persons and entities including some who had made campaign contributions to the Governor
; and

WHEREAS
,
Article 3, Section 31 of the Wyoming Constitution provides that
:

All stationery, printing, paper, fuel and lights used in the legislature and other departments of government shall be furnished, and the printing and binding of the laws, journals and department reports and other printing and binding,
and the repairing and furnishing the halls and rooms used for the meeting of the legislature and its committees shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such
regulations as may be prescribed by law.
No member or officer of any department of the government shall be
in any way interested in any such contract; and all such contracts shall be subject to the approval of the governor and state treasurer.

(Emphasis added).

WHEREAS
,
Article 3, Section 31 was adopted by the delegates to the Wyoming Constitutional Convention in 1889 to ensure that the public received competitively priced goods and services, to guard against governmental graft and corruption through the letting of contracts furthering the political interests of elected officials, and to maintain the integrity of government
; and

WHEREAS
,
Article 3, Section 31 requires that competitive bidding to secure the lowest responsible bidder shall be utilized. The section further requires that contracts set a maximum price. No member of the legislature or elected official may have an interest in such contracts. Finally, all such contracts must be approved by the governor and the state treasurer
; and

WHEREAS, q
uestions exist whether the contracts entered into for the Capitol Square Project have complied with Article 3, Section 31 in that contracts for the repairing and furnishing of the halls of the legislature were
:

(a)

N
ot let utilizing competitive bidding processing
;

(b)
D
id not set a maximum price and have been allowed to escalate through change orders and mismanagement
;

(c)
Possibly
let in furtherance of the political interest of the political interests of an elected official
;
and

(d)
N
ot approved by the Governor and State Treasurer.

WHEREAS, t
his Resolution makes no accusations of misconduct but calls for investigation in
the
interest
s
of the proper administration of government
; and

WHEREAS, t
he following three lease contracts and associated tenant improvement contracts demonstrate a failure to bid contracts competitively, an
d

include a
possible
interest of a member or officer of the government and none of the contracts had approval from both the Governor and the State Treasurer.

(a) The Lease for Housing the Legislature during
the
Capitol Renovation.
W.S. 9-5-1016 (b) (xix) governs the process of leasing buildings and requires a bid and proposal basis with advertising of space needs. The Wyoming Constitution also requires bidding for a lease contract
in Article 3, Section 31. That section also
requires that no member or officer of any department of the government shall in any way
be
interested in such contract.
The lease appears to have benefitted persons who had contributed directly or through political action committees to the M
ead for Governor Campaign Committee
.
The lease was entered into
without bid and was not approved by the State Treasurer.

The question arises
as to whether there was
any interest of any member or officer of any department of the government and merits investigation.

(
b
) W.S.
9
-5-1016(b
)(
xix) governs the process of leasing buildings and requires a bid and proposal basis with advertising of space needs. The Wyoming Constitution
also requires bidding for a lease contract in Article 3, Section 31. That article requires that no member or officer of any department of the government shall in any way
be
interested in such contract. The lease for the housing of the Wyoming State Treasurer, Wyoming State Auditor and the Wyoming Secretary of State during capitol construction
is for
a
building known informally as 2020 Carey Avenue.

The lease was entered into without competitive bid.
The lease appears to have benefitted a contributor to Governor M
ead
's

c
ampaign
.
The lease was not approved by the State Treasurer.

The language of the contract requires use of contractors determined by the State of Wyoming for all improvements to the building regardless of whether the cost is to be applied to the owner or the tenant. Therefore, the procurement of those contractors would be subject to the constitution and the statutes that govern procurement.

There are a number of contracts that were entered into by the State of Wyoming to bring the building into compliance with building codes as well as improving the spaces for occupancy.
A number of these contracts were not subject to competitive bidding. The amendments are specifically separate from the Construction Cost Limit and therefore represent a different
type of contract than the Construction Manager at Risk contract represented by the original contract. The State Treasurer did not approve this contract or amendments to the contract.

Other contracts for 2020 Carey for code
compliance,
were awarded without competitive bidding
or have exceeded any set maximum price
. The State Treasurer did not approve these contract or various change orders.

Total amount of contracts issued without competitive bidding
for 2020 Carey is
two million seven hundred forty-eight thousand three hundred three dollars and sixty-seven cents (
$2,748,303.67
)
.

(
d
) W.S. 9-5-1016 (b) (xix) governs the process of leasing buildings and requires a bid and proposal basis with advertising of space needs. The Wyoming Constitution also requires bidding for a lease contract in Article 3, Section 31. That article requires that no member or officer of any department of the government shall
be
in any way interested in such contract.
A
lease for the housing various agencies of state government during capitol construction
is for a building
informally
known as
516 S. Greeley Highway.

The lease was entered into without bid. The State Treasurer did not approve the lease.
The lease
appears to have benefitted a contributor to Governor M
ead
's

c
ampaign
.

WHEREAS, in numerous instances
of contracting for services in the Capitol Square Project
, t
here is a pattern of not performing competitive bidding.
Some contracts are let without a maximum price. There is no contract in the entire project that has been approved by the State Treasurer as required by the Wyoming Constitution.

WHEREAS,
Article 2, Section 1 of the Wyoming Constitution provides for the separation of powers between branches of government. Powers belonging to one branch of government are not to be exercised by another branch. The power of appropriation resides in the Wyoming Legislature. Administration of expenditures, under the Wyoming Constitution, resides in the Executive Branch.

In the case of the Capitol Square Project, the Wyoming Legislature appropriated funds to be administered by a committee that, in turn, performed executive branch functions in making hundreds of day-to-day executive decisions including spending decisions that are not made by the legislative branch. The committee reviewed and approved contractual
documents, architectural documents, where to locate people and equipment and even deciding where to put railings on stairways as concerning aesthetics. This illustrates the reason the founders were specific as to who would approve the contractual agreements necessary to maintain the halls and meeting rooms of the legislature under Article 3, section 31 of the Wyoming Constitution to maintain separation of powers in Article 2 of the Wyoming
Constitution.

WHEREAS, b
ased on the evidence that Article 3, Section 31 of the Wyoming Constitution has been violated by process and by passage of
2014 Wyoming Session Laws
,
chapter 40
, and based on the evidence that W.S. 9-2-
1016,
was violated as to competitive bidding and procurement of services for the Capitol Square Project
.

NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE LEGISLATURE OF THE STATE OF WYOMING:

BE IT RESOLVED, there is to be an investigation conducted by an independent investigator to determine whether Article 3, Section 21 of the Wyoming Constitution
and the procurement statutes were violated in disregarding competitive bidding and letting of contracts to the lowest responsible bidder under such maximum price in accordance with Article 3, Section 21 of the Wyoming Constitution by the Capitol Building Restoration Oversight Group, the Governor of Wyoming, Department of Enterprise Technology Services, and the Department of Administration and Information.

BE IT FURTHER RESOLVED that the investigator shall determine if any member or officer of any department of the government was in any way interested in any contract associated with the Capitol Square Project. This investigation shall include but not be limited to examination of campaign finances of elected officials associated with the Capitol Square Project, clients of members of the committee and families of the committee and departments involved with the Capitol Square Project.

BE IT FURTHER RESOLVED that an audit of current expenditures, accounting, procurement processes and contractual processes be performed by an independent
auditor working with and reporting to the independent investigator.

BE IT FURTHER RESOLVED that the investigator shall not be restricted in any way to documents associated with the capitol square projects held by any branch of government but shall also extend to the general practices of contracting within state government.

BE IT FURTHER RESOLVED that the
investigator generate
a report that details any violations of the Constitution of the State of Wyoming and the statutes of Wyoming. The report will provide accounting of the Capitol Square Project expenses and any findings concerning processes contract processes, accounting processes, and procurement processes as well as reporting on any interest by any member or officer of any department of the government.

(END)
1

HJ0011