Certainty and the Rigging of the Downs Deal

There is a great scene in the movie Zero Dark Thirty, where Jessica Chastain’s character, Maya, speaks up while her superiors offered qualified opinions as to the likelihood that Bin Laden is living in the compound where Chastain’s team has tracked him.

Her superiors offer estimates of “60%”, “a soft 60%” and “40%” that Bin Laden is in the compound. Maya suddenly interjects, “100% he’s there.  OK, 95% because I know certainty freaks you guys out, but it’s 100% he’s there.”

Maya could have been speaking about the rigging of the Downs contract too.

In the case of the Downs deal, it is not just that the deal was rigged, but that the highest levels of the administration were actively engaged in doing so.

We have already covered the clear-cut collusion during the procurement period by Martinez’s chief of staff, deputy chief of staff, and her most important advisor along with others, but there is still even more direct evidence of this collusion.

In the Evaluation Committee’s Report, the committee states unequivocally that both the Downs and Laguna Development Corp. were  “finalists”. 

Per the procurement code, “Those responsible offerors who are selected for the short list are the short-listed offerors” or “finalist offerors”. (1.4.1.D NMAC). By law Laguna then was entitled to “be accorded fair and equal treatment with respect to any negotiations and revisions of proposals.”  ( F NMAC).

Laguna was blatantly denied such equal treatment.

On October 12, 2011, Laguna requested in writing to enter into negotiations with the state over the lease. Laguna was denied its request. Based upon redacted email sreleased by the administration, it appears that it was Susana Martinez’s chief counsel, Jessica Hernandez, who denied Laguna’s request.

Laguna was denied this ability to negotiate despite the fact that the evaluation committee did not sign its report until October 28, 2011 so the request to negotiate came before the award was made and is allowable under the law.

Hernandez notified Larry Maxwell among others of her decision not to allow Laguna to negotiate despite being a finalist. Maxwell was later tasked with the assessment of Laguna’s protest and contrary to the law also denied that Laguna had the right to negotiate.

Maxwell’s inclusion in Hernandez’s email should have prohibited Maxwell, as a clear-cut conflict of interest, from ruling on Laguna’s protest. It did not.

The Downs; however, did engage in extensive negotiations with the administration irreparably altering the RFP to such an extent that by law it should have been reissued. 

Was this fair and equal treatment for each finalist? It is 100% certain that it was not.

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