Plaintiff in Boulder County Marshall Fire debris removal case no longer requesting rebidding

Mar. 16—The plaintiff arguing Boulder County violated Colorado's open meetings law when negotiating a contract for Marshall Fire debris removal is no longer asking for the county to redo the bidding process.

Instead, former Federal Emergency Management Agency Michael Brown, through his legal team with Davis Graham and Stubb LLP and a newly incorporated nonprofit organization called Demanding Integrity in Government Spending, is asking to interview the team that conducted the bidding process.

"My client withdrew its request for a 'redo' of the bidding process because the county was continuing to wrongfully blame my client for cleanup project delay," attorney Chad Williams wrote in an email. "Just as this lawsuit has not prevented the county from beginning cleanup work to date, the lawsuit now cannot conceivably delay that work in the future."

If it was required by the court to go through another contract bidding process before beginning Marshall Fire debris removal, it would result in a "heavy blow" to more than 1,000 households that burned in the state's most destructive fire, Boulder County argued in its response to the original suit.

The Boulder County Commissioners held a number of executive sessions throughout January and February to discuss topics related to the Dec. 30 Marshall Fire, including one specifically about the request for proposals for contractors to coordinate the debris removal program.

An evaluation committee meant to discuss the request for proposals and guide the bidding process for contractors also met a number of times to discuss the contractors who submitted bids.

According to the county, the evaluation team included administrative staff from Boulder County, Superior and Louisville. The county received 11 proposals for its private property debris removal program and ultimately selected DRC Emergency Services on Feb. 10.

Boulder County argues that the bid review committee isn't subject to the state open meetings law.

Among other tasks, team members individually reviewed the proposals and held several meetings in which two finalists were identified, according to the county's response. The team decided that interviews were required. After conducting two interviews and reconvening for additional discussion, the committee made a unanimous award recommendation in favor of DRC.

Brown and his nonprofit in their response push back on the county's description of the committee as an administrative one.

"The evaluation committee did far more than even the elected board itself to select the contractor as the winning bidder," the March 15 response states.

It goes on to argue that the work was not administrative but substantive, considering the committee reviewed "best and final offer" responses from the bidders, met to evaluate such proposals and analyzed and agreed upon a single score and rate sheet.

However, Boulder County in its response also noted that if the court deems there is a violation of open meetings requirements, it could "craft a remedy that addresses its concerns without impacting Marshall Fire survivors."

The county suggested the court could reprimand it for not providing enough detail in the notices and instruct it to issue more detailed notices in the future but stop short of enjoining the contract with DRC.

Williams said if the court agrees to his client's request, it would be taking a similar approach.

"If the court permits us to do this, the timing of these interviews (with the evaluation committee) does not matter," Williams said. "It can literally be done in the course of business without regard to anything else happening in the world, including the county's debris cleanup effort."

The county doesn't dispute this, issuing a statement that the change of position will likely allow it move forward with signing the private debris removal contract with DRC as early as March 22.

"Nonetheless, the County believes the lawsuit remains a distraction from important recovery work for the community, especially depositions of staff who should be focused on planning and implementing (private property debris removal)," according to the statement.

Still, Boulder County maintains it complied with all applicable laws in selecting a winning bidder for the contract.