FREE WHITEWATER

City, Innovation Center/Tech Park

Whitewater’s Innovation Center: Economic Development Administration Sends ‘Cease and Desist’ Letter Over Alleged Violation of Competition in Construction Requirements

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The City of Whitewater, together with UW-Whitewater and the Whitewater Community Development Authority, is undertaking an eleven-million dollar, publicly-funded technology park project. The centerpiece of that project is an Innovation Center building.

(I have written about the project before; for information on the relationship between the three organizations involved in the project, see the Memorandum of Understanding between them, available online at the Technology Park’s website.)

The project, including the centerpiece ‘Innovation Center’ building, relies on a federal grant from the Economic Development Administration, with additional funding from the issuance of millions of dollars in federally-subsidized Build America bonds.

In late September, the federal Economic Development Administration sent a letter to the City of Whitewater’s city manager, Kevin Brunner, among others, directing work on the project cease and desist based on an alleged violation of federal regulations on competitive practices. The letter is from C. Robert Sawyer, Regional Director of the Economic Development Administration. I have embedded a copy of the letter below, the first paragraph of which describes the federal directive to halt work related to the Innovation Center:

It has come to the Economic Development Administration (EDA) attention that the construction contractor for the Whitewater Technology Park building portion of the Project has not been awarded per EDA Standard Terms and Conditions. The construction contractor is also working as a construction project manager developing specifications, requirements, statements of work, and invitations for bid and/or requests for proposal. This is a clear violation of the Grant Award Terms and Conditions and in particular, CFR 15 § 14.43 Competition. This unauthorized action subjects the grant to possible termination for cause.

The City of Whitewater, Community Development Authority and the University of Wisconsin-Whitewater, as co-grant Recipients, are hereby advised to cease and desist, all construction activities associated with this EDA investment….

A full accounting of this matter by the EDA will be required before it will authorize any additional Project activities….

See, full letter from the Economic Development Administration to the City of Whitewater, among others:

(Note: The letter does not say what prompted the review and directive from the Economic Development Administration.)

Federal Legal Requirements

The Code of Federal Regulations, Section 14.43, Competition, requires that

All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the recipient, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offeror shall fulfill in order for the bid or offer to be evaluated by the recipient. Any and all bids or offers may be rejected when it is in the recipient’s interest to do so.

(Emphasis added.)

Selection of a Construction Services Firm: J.P. Cullen

A review of the minutes from the August 11, 2009 meeting of the Technology Park Board, available online at the Technology Park website, shows that the Board selected a construction manager at the meeting, as recorded at Item 5 of the minutes:

Discussion of Approval of Construction Management Services Agreement, Gayhart explained that he, Brunner, Knight and Cliff Goodhart had interviewed three firms for construction management services yesterday. These firms were Findorff Construction (Madison), J. P. Cullen & Sons (Janesville), and Miron Construction (Menasha). After due deliberation and consideration, the committee is recommending that J. P. Cullen be selected to provide construction management services for the Whitewater Innovation Center project and that a recommendation be made to the Community Development Authority and Common Council to approve a construction services agreement yet to be finalized with Cullen. It was moved by Gayhart and seconded by Brunner to approve the recommendation to hire J. P. Cullen and Sons for construction management services. The motion was unanimously approved.

(A summary of estimated costs from Cullen, in a letter dated April 16, 2010, and linked below, indicates that Cullen estimated its construction management charges at $285,436.)

A review of the minutes of subsequent meetings shows that Cullen’s representatives routinely participated in Technology Park Board meetings. See, online minutes.

The Construction Management Firm Recommends Itself for a $2.8 Million-Dollar General Construction Bid

At a Whitewater Community Development Authority meeting on April 19, 2010, as recorded at Item 6 of the meeting minutes, the CDA took action on bids that Cullen, as the construction management firm, itself recommended:

6. Discussion and Possible Action on Bid(s) for construction of the Whitewater Innovation Center (as part of the Whitewater University Technology Park and Economic Development Administration Grant) Brunner noted that bids were opened on Thursday, and it was a competitive process. Low bidders were outlined in an outline provided by JP Cullen.

Attached to the minutes is a letter from the Cullen firm, addressed to City Manager Brunner, and outlining recommended bids. For the general construction base bid, Cullen recommended that

For Base Bid #1 — General Construction, three responsive bids were received ranging from $2,890,195 to $3,070,000. JP Cullen & Sons, Inc. submitted the lowest responsive bid at $2,890,195 and we recommend that they be awarded a contract for Bid Category #1.

The minutes record that

Jeff Knight motioned to (on behalf of both the CDA and the Whitewater Technology Park Board) approve the bids for the construction of the Whitewater Innovation Center. Jim Allen seconded.
CDA Ayes: Jim Allen, Jeff Knight, Alan Marshall, Tom Miller, Jim Stewart
Nays: None
Absent: Al Stanek, Marilyn Kienbaum
Tech Park Board Ayes: Chancellor Telfer, Kevin Brunner, Peter Zaballos, John Chenoweth, Jim Stewart, Bud Gayhart, Jeff Knight
Nays: None

See, minutes of the April 19, 2010 Community Development Authority Meeting, with letter from the J.P. Cullen firm:

The minutes record no discussion of Code of Federal Regulations 15 § 14.43 on competition and the prohibition against a construction management firm receiving compensation as a contractor.

Latest Community Development Authority Meeting

On September 27, 2010, the Whitewater Community Development Authority held a regular board of directors meeting. The agenda for the meeting is available online. Item 10 from the agenda lists a discussion of the technology park:

10. Whitewater Technology Park
a. Innovation Manager Search Update
b. Economic Development Administration Update
c. Infrastructure Updates
i. Starin Road Extension
ii. Tech Park Infrastructure

A video recording of the meeting is available online. Beginning at 1:17:45 into the recording, Whitewater city manager Brunner discusses item 10 b, “Economic Development Administration Update.” I have embedded the video below, with my own transcription of the relevant discussion:

Transcript of conversation:

Brunner: Economic Development Administration update. We continue to work with the EDA on a variety of compliance issues. We have a meeting scheduled with them next week to discuss some concerns the EDA has regarding the Innovation Center and we hope to work out the details of that with them next week.

[Cross talk with Mary Nimm, CDA Coordinator]

And we have a new rep who has brought a new set of eyes and a lot more [laughs] detail, a lot more detail that we have to go through… So, that’s that… I don’t know, Mary, do you want to make any other EDA comments?

Nimm: Just that we have a new rep.

(Notes: 1. Although the letter from the Economic Development Administration bears a stamp of 9-28-10, it is likely that other telephone, email, or written communications on this subject preceded receipt of the letter. The addressees in the letter likely knew about the directive in the letter before the September 27, 2010 CDA meeting. 2. Although the Economic Development administration apparently has a new project representative, the federal regulations on competition in construction have been the same during the entire course of the project. The representative may be different, but the law and the obligations for the project have been the same throughout.)

Additional posts will follow as developments warrant.

Twitter

Recent Tweets, 9-26 to 10-2

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Frogs bring color – and danger – to Milwaukee Public Museum – JSOnline http://bit.ly/dhajf7
5:54 AM Sep 30th

RT @reasonmag: Faking the Pledge: How Republican promises of fiscal sobriety ring hollow http://ow.ly/2LDtQ
10:45 AM Sep 29th

CatoInstitute: Buckley opposed War on Drugs – why don’t today’s conservatives? Harvard economist J Miron makes case: http://lat.ms/cncXcG
10:39 AM Sep 29th

New Dealers would be outraged: Whitewater’s Innovation Center from the Perspective of the New Deal » FREE WHITEWATER http://bit.ly/cptM52
10:28 AM Sep 29th

BBC News – Iran jails pioneering blogger for ‘anti-state activity’ http://bbc.in/9f16JJ
2:23 PM Sep 28th

Unemployment May Be Headed Up Despite Growth – Real Time Economics – WSJ http://bit.ly/b4rtsd
10:05 PM Sep 27th

Banks Keep Failing, No End in Sight – WSJ.com http://bit.ly/cyjNlx
2:54 PM Sep 27th

RT @js_watchdog: No Quarter: DA running two John Doe investigations that could impact governor’s race (http://bit.ly/bGe7TG)
9:30 AM Sep 27th

Investigations target Walker donor, aide – JSOnline http://bit.ly/a8le9h
8:01 AM Sep 27th

Stimulus Made Economic Crisis Worse, `Black Swan’ Author Taleb Says – Bloomberg http://bit.ly/cXKc9L
7:04 AM Sep 27th

For Americans, One Recession, Two Impacts http://bit.ly/8XPSEi
6:45 AM Sep 27th

davidgumpert: Fair treatment of raw milk from Time Mag Sept. 20 issue–takes issue with CDC data on illnesses & deaths. http://bit.ly/dpej6i
9:28 PM Sep 26th

Daily Bread

Daily Bread for Whitewater, Wisconsin: 10-1-10

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Good morning,

The forecast for Whitewater today calls for a chance of showers with a high temperature of seventy degrees.

It’s a teacher development day, so students in the Whitewater Unified School District are free-range students today. Play responsibly.

Intermittent computer problems are likely to interfere with the FW Friday Comment Forum. Today makes two weeks without one, and I’m sorry for the gap. The feature will return next week.

Thanks very much to the readers who made September a great month at FREE WHITEWATER. If only a few people visited, I would consider myself fortunate. Your visits, messages, and readership leave me fortune, indeed.

Have something you’d like to say? I prefer reading your messages to writing my own posts. Feel free to drop me a line at

adams@freewhitewater.com

Libertarians, Politics

U.S. Senate Candidate Ron Johnson: Republican or Libertarian?

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The Milwaukee Journal Sentinel‘s All Politics Blog asks: Johnson: Republican or Libertarian?

So, which is it? Is Ron Johnson, United States Senate candidate from Wisconsin, a Republican or a libertarian?

He’s a Republican. Johnson apparently quotes from Ayn Rand occasionally, but that doesn’t make him a libertarian. It makes him someone who quotes from Ayn Rand occasionally.

(By the way, Rand’s often the writer people quote when they want to sound sympathetic to libertarians. Anyone who grew up in the movement knows well that Rand had, to put it mildly, both intellectual and personal limitations. A liberty-oriented view of the world neither begins, nor ends, with Rand. There have been countless great men and women who have argued for liberty-oriented principles.)

I’d say that John McAdams, a professor at Marquette University quoted in the post, has it just right — that Johnson would probably vote as other Republicans vote, and that it’s most accurate simply to “call him a conservative.”

Government Spending, Taxes/Taxation, Wisconsin

Cato Institute’s 2010 Fiscal Policy Report Card on America’s Governors

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The Cato Institute has released its 2010 Fiscal Policy Report Card on America’s Governors, and Wisconsin fares poorly in the report. I’ve be a sometime critic of the outgoing Doyle Administration’s policies, but candidly, his Republican predecessors (Thompson, McCallum) left the state’s finances in poor condition, too. The return of a Republican to the governor’s mansion would offer no assurance of meaningful improvement. See, Milwaukee Journal Sentinel: Next Wisconsin Governor Faces Big Deficit.

Cato describes Wisconsin’s predicament as among the worst in America. A Wisconsin problem is an acute local problem for any small town that depends heavily, as Whitewater does, on state support.

The full document appears below.


Fiscal Policy Report Card on America’s Governors: 2010, Cato Policy Analysis No. 668
more >>

Law

Second Amendment Rights (and implicitly First Amendment rights, too)

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Earlier this month, Madison police cited two men (of a group of five) for obstruction of justice for failing to identify themselves to officers at a Culver’s restaurant. The men were openly carrying firearms, as Wisconsin law allows.

(One can’t openly carry a gun anywhere, but it’s lawful to carry one in a Culver’s, for example. Carrying a concealed weapon, by contrast, is not generally allowed in Wisconsin.) See, Obstruction charges to be dropped in gun case but all five men will be cited.

(Note: I certainly think it’s odd to want to carry openly a gun in a Culver’s restaurant. It’s not something I would ever do. Nonetheless, open carrying is, and should be, lawful apart from someone’s mere opinion on the matter.)

Madison’s Police Chief, Noble Wray, was right to instruct his office to withdraw the obstruction of justice charges — the refusal of the men to identify themselves in these circumstances was no crime under Wisconsin law. Unfortunately, he instead directed his office to charge all five men with disorderly conduct, on the (impossible) theory that

….Wray said that after further investigation all five men, who are members of the gun-rights group Wisconsin Carry, would be cited for disorderly conduct because the caller, a 62-year-old woman, along with a second patron interviewed this week told police they were disturbed by the armed men.

Predictably, the City of Madison is now being sued for violations of citizens’ federal constitutional rights. See, Gun rights group files federal lawsuit over Culver’s incident.

Wray has made the City of Madison’s position worse, not better — the city’s new theory leads to the conclusion that a citizen commits disorderly conduct anytime someone finds his lawful actions or lawful words unsettling. There’s a federal trial court case that seems to support the City of Madison’s position (concerning open-carrying of guns in a Walmart), but it’s not likely to survive appeal. (One can see that the City of Madison suspects its position is weak, as the city attorney will have no comment on the merits.)

Disorderly conduct requires more than the peaceful exercise of rights; citing the citizens at Culver’s on this basis will allow gun-rights advocates to contest these charges in federal court, and spur them further to seek appeal of any adverse trial-court ruling.

A charge of disorderly — allowed to stand — would implicate rights beyond Second Amendment gun rights. Is a person’s First Amendment right to speech, for example, subject to criminal prosecution when another person feels that the speech is unsettling, rude, disturbing, odd, etc.? One need not, after all, even speak audibly to exercise a first amendment right — a sign, banner, button, or bumper sticker carrying a political or message is speech under the First Amendment, too. Can government charge you with a crime because another person is, simply, offended because of your yard sign, button, or bumper sticker?

The answer’s no, and must be no, in a free society. I’d guess, soon enough, we’ll hear a similar answer concerning the disorderly conduct charges in the Culver’s open-carrying case.

Daily Bread, Nature

Daily Bread for Whitewater, Wisconsin: September 30, 2010

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Good morning,

Today’s forecast for Whitewater calls for a sunny day with a high temperature of sixty-nine degrees.

Over at Wired, there’s a hopeful story entitled, “Third of ‘Extinct’ Mammals May Still Be Alive.” Mammals supposed extinct from habitat loss are more likely to have survived than mammals presumed extinct due to invasive species or hunting. Brian Switek writes that

Categorizing a mammal species as extinct has rested upon two criteria: It has not been seen for more than 50 years, or an exhaustive search has come up empty….

In order to determine how often extinct species had been rediscovered, University of Queensland scientists Diana Fisher and Simon Blomberg created a dataset of 187 mammal species that have been reported extinct, extinct in the wild, or probably extinct since 1500, as well as those which have been rediscovered. They also looked at historical data on the threats that caused species to become extinct — or brought them close to it — including habitat loss, introduced species and overkill by humans.

It turns out that rumors of the extinction of more than a third of these species have turned out to be premature, the scientists report in Proceedings of the Royal Society B Sept. 29. At least 67 species — a little more than a third of those presumed to be extinct — were later found again. And in most cases, these were animals that had been hardest hit by habitat loss.



Tasmanian Tigers — Still Presumed Extinct

Books, Review

Tom Rachman’s The Imperfectionists

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I’ve read Tom Rachman’s The Imperfectionists twice — once in hardcover, and once on the Kindle. (A particularly astute recommendation brought the book to my attention.) While thinking about the book, I decided to search for information on the author, and came across a review in the New York Times. It surprised me, a bit, to see that the reviewer, a professional author and reviewer, had also read the book twice. Rachman’s first novel is worth reading a second time, both for serious authors and for small-town bloggers.

Many of the books that I read these days are straightforward, often inartful, works of non-fiction: histories, politics, topics in science, etc. That’s a reading list common to many, with too little fiction in the diet.

The Imperfectionists breaks that poor habit, and in a powerful way: it’s a fine story of life at an English-language newspaper in Rome. The story proceeds as each chapter describes a member of the paper’s staff, characters carefully presented in all their eccentricities. The novel presents them subtlely, as credibly eccentric, with an insight and tenderness that makes descriptions of them memorable.

Publisher, editor-in-chief, reporter, copy editor, financial officer — one-and-all are intriguing, often sad, characters. The novel first chapter begins with has-been reporter Lloyd Burko, facing professional, personal, and financial decline. Burko manages all three with a mixture of waning ability and waxing desperation. (He puts one of his adult children, from one of many marriages, into a terrible predicament just to get a story and paycheck. The episode comes near the beginning of the book, and the account of Burko’s conniving is an enticement to read on, reluctant to put the book down.)

I’ll write no more about the story, except to say how very enjoyable — clever and touching by turns — The Imperfectionists was.

(I’ve a new book I’m now reading about — of all things — French cooking. I’ve tried to learn a bit of cooking, and someone recommended Edouard de Pomiane’s book to me, as it’s easy for anyone to understand. We’ll see.)

City, Economy, Government Spending, Innovation Center/Tech Park, Poverty

Whitewater’s Innovation Center from the Perspective of the New Deal

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I posted yesterday about Whitewater’s Innovation Center, in a post entitled, Whitewater’s Innovation Center: Grants and Bonds.

The more one looks at the project, the emptier it seems. Attempts to justify the multi-million dollar public expenditure — on their own, apart from any other consideration — are exercises in embarrassing hyperbole. Attempts to answer objections to the project are particularly absurd, and only highlight how weak is the case in its favor.

There’s a greater problem than the project’s emptiness — it’s the inability to see clearly the city in which the project is taking so much time and money. Whitewater, Wisconsin, now population 14,454, is a struggling rural town, with large numbers of poor children.

Although I am a critic of much public spending, when I think of a model of public spending that at least properly considered actual conditions, I often think of Franklin Roosevelt. (For a critique of Roosevelt’s New Deal, one should consider Amity Shlaes’s excellent Forgotten Man.)

Much is made of Roosevelt’s sunny temperament, but that’s not why he’s admirable. He’s admirable because no matter how dubious Roosevelt’s spending (to my mind), he and his administration never lost sight of common and poor people. His efforts to control utilities were misguided, for example, but they had a clear and admirable aim: to provide electrification for common people. Roosevelt cared for the condition of ordinary Americans.

The contrast with current city projects, ones that Whitewater has backed over the last decade, is astonishing. When one looks at a project like the Whitewater Innovation Center, it’s of utterly no value to the many poor people in our small city. Not only does it have no chance to achieve the stated goal of the funding — it also has no chance of addressing the actual and difficult conditions that real people in our real town face.

No chance at all.

If Roosevelt’s committed and serious team were to see projects like the Innovation Center, I think they’d be astounded at how unsuited it is to the problems our town faces. This project offers no balm to prior economic or natural calamity. Looking around at poverty, unemployment, and economic uncertainty, the New Dealers would have been more far more practical, and (I think) outraged at this kind of spending.

One may hear that, since the money was offered (more, in fact, than our city administration asked), we should take what we can, because otherwise someone else would.

It was selfish to take money better suited to more realistic projects, merely because we could. Much of America’s fiscal predicament begins with states and local governments taking whatever they can, and figuring out what to make of it later. (Funds unused would not be lost to America, but could be reallocated to other initiatives more suited to these difficult times.)

That is, though, a fiscal problem. The greater problem is one of principled leadership — that men should not take for themselves what would (in other places) help other people, more fittingly and truly.

Daily Bread

Daily Bread for Whitewater, Wisconsin: 9-29-10

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Good morning,

The forecast for Whitewater, now officially having a population of 14,454, is for a sunny day with a high temperature of seventy-three degrees.

Whitewater’s Urban Forestry Commission meets tonight, at 5 p.m. The meeting agenda is available online.

President Obama was in Madison yesterday, at the University of Wisconsin-Madison for a speech, and the Capital Times has a link to a video of the scene, with parts of his speech. I’m not sure how the speech was covered in other parts of the country, but it was a notable event here.

Pres. Obama has his share of critics (on spending, particularly), but I have neither understood nor joined in the harsh rhetoric directed against him. Watching his remarks, I find others’ apparent personal dislike for him puzzling; he’s both formidable and personable, I think.