Nor-gen responds to Peach Rio Nuevo complaint

tucson-downtownAs has become standard operating procedures with the good old boys in southern Arizona, when they don’t get their way, they don’t pick up their balls and go home, they smear, they accuse, and if necessary they file frivolous complaints and lawsuits in the hope that hard ball will win the day. So when Peach Properties finally filed a complaint with Rio Nuevo District about the procurement process employed by the District for a coveted downtown parcel of land, no one was really surprised.

Peach had lost to Nor-Generations (Nor-gen) in the multi-stage procurement process (RFP) for Rio Nuevo’s “Arena Site.” Peach in turn, filed a “wholly spurious” complaint, according to Nor-gen’s attorneys.

In their response to Peach’s protest, attorneys for Nor-gen refute the claims made by Peach, and put an end to the smear campaign launched by Peach crony; Rio Nuevo Board member Mark Irvin. Before the RFP process was completed, Irvin worked diligently, contacting local radio show host and through a local real estate blog to smear Moore by implying that he had some financial interest in Nor-gen’s project.

The response by Nor-gen’s attorneys reads:

Peach’s protest claims that the entire Arena Site proposal process was tainted by a statement made by Rio Nuevo Board member Alberto Moore during the August 12, 2014 Board Meeting. In order for Peach to prevail, the Board has to accept the insulting proposition that one Board member’s innocuous statements so influenced the other Board members that they lost control of their independent judgment and felt compelled to give Nor-Gen a higher score than they gave Peach. Peach presents no evidence this occurred, but they do close with the smear that Mr. Moore has been improperly influenced.

If Peach’s protest demonstrates anything, it demonstrates that that it has no understanding of the District’s goals or vision, or the fierce independence of its Board Members. Peach belittles the Board when it claims that Mr. Moore’s belief that the development of the Arena parcel offers a “unique opportunity” to create a “gateway” to a “vibrant, active” Tucson -are “inconsistent” with the Board’s own goals and its vision or the Arena Site and the District.

Board Chairman Fletcher McCusker himself stated that Mr. Moore’s articulation of the Board’s vision was “extraordinarily accurate.”

If it were not for the fact that Peach’s team touched on virtually every point made in Mr. Moore’s statement, before Mr. Moore ever even made it, Nor-Gen would attribute Peach’s protest to a complete lack of understanding of the RFP itself. However, considering that Peach’s presenters used Mr. Moore’s own terms repeatedly, the real reason for the protest is clear. Peach cannot accept that its proposal was inferior to Nor-Gen’s and a majority of the Board believed that to be the case in two separate scorings and a vote.

Mr. Moore did not introduce any “new” criteria.

Peach complains that the following “unauthorized criteria” were introduced by Mr. Moore: (1) that the property was “a gateway;” (2) that the development should speak to both our history and our vision for the future; (3) that linkage to the Westside of I-10 was important; (4) The property could be a truly “urban place;” (5) that the long term stability of the Tucson Gem and Mineral Show was a goal; and (6) that the future development should be “iconic.” Peach should re-read the Minutes and pay attention to what Peach itself presented. Peach cannot have its cake and eat it too. Peach itself introduced the very concepts it now complains Mr. Moore mentioned in his statement. Mr. Schwabe, Peach’s owner and first presenter during the interview described the Arena parcel as a gateway property in his opening statement: “And that’s not just, you know, that it’s gateway property. That’s not just that it’s a gateway property or that it’s, you know, the property that 200,000 eyeballs look down on and form their impression about Downtown or the linkage to the West Side.”

After Mr. Schwabe, Peach’s Architect Mr. Swaim, referred to the property as a “gateway,” and joined in on emphasizing its linkage to the Westside: “It’s important for the Mercado District to really create that linkage and support that. And it’s also the gateway into downtown;” “It really creates that gateway statement;” “It’s a gateway to downtown.”

Peach protests that Mr. Moore “stated the area could be a “truly urban place.”8 What is Peach’s complaint? Peach admits the RFP sought to create an “urban and/or mixed use development.” Does Peach really not understand what “and/or” actually means? Mr. Schwabe described his planned hotel as an “urban-type hotel” and acknowledged the Site is in an “urban setting.” Peach’s Architect Mr. Swaim stated he wanted to “really make sure that this works as an urban-in an urban location,” (emphasis added) and Peach touted its history of working with local “urban planning” organizations.

Peach protests that Mr. Moore “stated ensuring the long-term stability of the Tucson Gem and Mineral Show as a goal. The RFP does not mention the Gem Show, except for the parking requirement.” 10 Does anyone who has ever read anything about Downtown and the District not understand that keeping the Gem Show is a goal? Should Board Member and Secretary Irvin’s statement that the Board was very concerned about taking care of “anybody that’s involved in the Gem Show”11 be deemed cause to toss out his vote? Peach’s own Mr. Swaim certainly echoed this sentiment several times when he stated in his interview that developing the Arena Site presented an “incredible opportunity to support …the Gem Show,” and that the development “needs to support the Gem Show.”

Peach protests that Mr. Moore emphasized linkage to the West Side while “the RFP only identifies support from the adjacent neighborhoods.” Again, as noted above, Mr. Schwabe and Mr. Swaim both talked about the importance of “linkage” to the West Side. Mr. Swaim stated that the development would “really activate the West Side” and would “bridge that gap and support the West Side;” and Mr. Schwabe said it would be a “linkage to the West Side.”

Peach protests that Mr. Moore suggested the development should be iconic. Peach’s own Mr. Swaim stated that it was an “iconic location,” the development should be “really creating an innovative destination – an iconic place here,” “really creating an iconic place,” and “we create an iconic place, that they can market.”

Each of the items Peach protests were raised by Peach itself in their interview, prior to Mr. Moore’s comments. That Peach would base a protest on their own presentation is mystifying. Not only did Peach raise these issues themselves, in the context of Rio Nuevo and downtown Tucson, concepts like “Gem Show,” “gateway,” “west side,” and “urban” are inherently part of any development plan, and their influence in an RFP-express or implied, without regard for the semantics of exact phrasing-should be of no surprise to any sophisticated developer.

As to the rest of Peach’s specious protest, it is completely unsupported by the record.

No one violated Rio Nuevo ‘s rules, the terms of the RFP, or the Code by speaking at the August 12 public meeting.

The August 12, 2014 meeting was an open meeting. Following the interviews with Nor­ Gen and Peach, Mr. Moore expressed his sentiments about the District’s vision for Arena Site; Chairman McCusker confirmed them. Mr. Moore stopped speaking when advised to do so by Chairman McCusker and Mr. Schmaltz. Nothing in the procurement code or the RFP stated that Board members could not voice their opinion. No one objected to his comments until Peach lost its bid and, as noted above, Mr. Moore’s comments echoed Peach’s. In the end, Mr. Moore simply stated he thought Nor-Gen’s proposal fit the very items Peach spoke to, “beautifully.” The District’s own counsel, Mr. Schmaltz told Mr. Moore that his statements were “certainly appropriate” to make as a member of the Board, but that Mr. Moore should refrain from speaking further. Chairman McCusker asked that Mr. Moore should stop before saying something that “allows a situation where one of the bidders could protest.” Mr. Moore stopped. Nothing indicates that anything Mr. Moore actually said was improper-if he had; Chairman McCusker or Mr. Schmaltz would have noted so. Notably, Mr. Moore did not advocate for the other Board members to adopt his views or otherwise lobby for their support.

No one has been unduly influenced by outside forces.

Peach claims that Mr. Moore was “influenced by outside forces.” What forces are those, common sense? Neither Nor-Gen nor its principals have any financial or social ties to any members of the Board. The Board covered the issue of conflicts of interest exhaustively at the August 12, 2014 meeting, and found that none of the Board members who participated in this RFP were conflicted.

The Board was not unduly influenced by Mr. Moore’s statements.

Peach protests that Code § 28-18(5) provides that the only criteria the Committee can consider are those stated in the RFP. Perhaps Peach should actually read the Code provision:

(a) Evaluation criteria. The request for proposals shall state the criteria to be used in the evaluation of the proposals and shall include their relative importance. Specific numerical weighting is not required.

Where does the word “only” appear? The RFP itself provides:

Submittal Content. Every Proposal must address each of the items listed herein, and may include any additional information that the Proposer believes may be important to the Project.

Peach was not limited in what it could present and did not behave as if it was limited. Peach itself introduced the very terms it now protests Mr. Moore used.

As Rio Nuevo’s record clearly shows, each Board member scored each proposal according to those criteria, and only those criteria, contained in the RFP, as required by the Code and the RFP itself. Looking at the scores, Mr. Moore’s comments clearly had no effect on his fellow Board members. Supporters of Peach remained supporters of Peach, and supporters of Nor-Gen remained supporters of Nor-Gen. There simply is no evidence that any Board members relied on Peach’s phantom criteria at Mr. Moore’s behest, or were at all influenced by his ruminations.

That is the essence of the difference between scoring and voting on this item because you have scored the proposals that were submitted to you, you have evaluated them based upon their criteria that you approved as part of the RFP and we’ve arrived at a final list with a ranking of the proposals. Now you have that option to decide whether or not to proceed with negotiations, number one, or to terminate the RFP.

Not a single Board member moved to start the process over; not a single one. Every single member of the selection committee, with the exception of one, voted to proceed with negotiations with the first ranked proposer, Nor-Gen. Furthermore, after the five to one vote in favor of Nor-Gen, the only Board member that had voted no then moved that the Board authorize the District’s executive officers to immediately commence negotiations with Nor-Gen.

Conclusion.

In conclusion, and in light of the foregoing, Nor-Gen respectfully submits that the Board should deny Peach’s spurious protest as wholly without merit and proceed in accordance with its vote to negotiate with Nor-Gen for the development of the Arena Site. As the District well knows, if those negotiations are unsuccessful the District can repeat the proposal process, or negotiate with Peach.

About ADI Staff Reporter 12171 Articles
Under the leadership of Editor-in -Chief Huey Freeman, our team of staff reporters bring accurate,timely, and complete news coverage.