It was April in 1996, when the President of the Denver Election Commission, Marcia Johnson (now Denver City Councilwoman, Marcia Johnson, who represents the 5th Council District) tied up a task force established to select a new voting system for the City and County of Denver. Ms. Johnson chaired the task force (I don't recall if there was a co-chair). Denver's Executive Director of the Election Commission (serving at the pleasure of the Commission) was, at that time, Arlys Ward. Ward would soon be replaced by a young man named Mike Frontera. The mayoral appointed Clerk and Recorder, who was also a member of the Election Commission, was, at that time, Elbra Wedgeworth (now Councilwoman Elbra Wedgeworth, representing District 8).
A supervisor from the City's Department of General Services, Purchasing Division, served on the task force in an advisory role. A memorandum to Ms. Johnson from that procurement professional dated April 26, 1996, noted the following:
SUBJECT: Task Force - Voting Machines/Process for ProcurementThe Purchasing Division was not called upon by the Election Commission to conduct a bid or RFP process. They conducted their own process--the details of which were not likely shared with the Purchsing Division--that led to the initial purchase of Sequoia DRE (direct-recording electronic) machines.
The following observations and discussion of purchasing processes may be helpful in determining what course the Election Commission wishes to follow pursuant to the completion of the Task Force’s responsibility in reference to the above.
1.) Bidder’s Proposal: A Bidder’s Proposal is issued, most generally, by the Purchasing Division when the “scope” of the requirement for goods or services is absolutely defined in such a manner that the “award” can be made on the basis of the lowest net price from a qualified, responsive bidder.
2.) Request for Proposals (RFP): A Request for Proposal is issued, most generally, by the Purchasing Division when the “scope” of the requirement for goods or services may be defined as a specific need or goal (we know what we want to accomplish) but the solution (the means to get there) is not so well defined. The RFP, therefore, requires the proposer to provide the means or solution to accomplish what we identified as our specific need or goal. An RFP is, most generally, awarded on the basis of cost and subjective evaluation criteria. Further, RFPs are issued, most generally, for what are referred to as “professional” or “technical” services.
3.) Responsive Bidder/Proposer: The “responsiveness” of a bidder or proposer is determined by a number of factors. Did the bidder or proposer offer what was specified in the “scope” of the bid or proposal? Did the bidder or proposer provide all information pertinent to financial stability; qualifications of personnel; appropriate staffing, etc.? Did the bidder or proposer provide a bid bond, if required?
4.) Qualified Bidder/Proposer: A “qualified” bidder or proposer is one who is able to verify that they meet or exceed the “threshold qualifications” set out in the bid or proposal. For example, if the bid or proposal requires that the bidder or proposer have no less than five (5) years experience in the manufacture of voting machines, then a “qualified” bidder or proposal must provide verifiable proof that they, indeed, have five (5) years experience in the manufacture of voting machines.
5.) Election Commission Purchasing Authority: The Charter provides that the Election Commission, “...unless otherwise provided by ordinance, may provide for the use of mechanical or other devices for voting or counting the votes...” (Charter C1.21); and, “The Board of Councilmen shall appropriate sufficient funds to the election commission to enable the commission to obtain suitable offices, supplies, and employees to perform its duties. The commission may, in its discretion, utilize the services of city and county departments in making such acquisition,” (Charter C1.24). Therefore, I believe it is clear the Election Commission has the “discretion” to utilize other city and county departments in making purchases that are essential to its operation. And, of course, I believe it is clear that the Election Commission has the “discretion” not to utilize other city and county departments in making purchases that are essential to its operation.
6.) Discussion of State Certified Voting Systems: A point was made during the last Task Force meeting that the State of Colorado has certified several (I believe the number was four) voting systems for use in the counties of Colorado. The systems certified include both DRE and paper ballot systems. The significance of this point was well-taken and probably provides the most fundamental dilemma for the Election Commission. If a system has been certified by the State, then does it naturally follow that any one of those certified systems is appropriate for use in the City and County of Denver? And, therefore, any specification written for the purchase of a new voting system must be inclusive of all systems certified by the State and any subjective criteria applied to an RFP issued for the purchase of same must, therefore, preclude criteria that will eliminate or more heavily favor one system over another.
I suggested at the last Task Force meeting that it was my opinion that the State of Colorado includes counties that are significantly varied in demography and even though the State has certified differing voting systems for Colorado counties, what may be an appropriate, workable system for Paonia may not be appropriate or workable in Denver. I, therefore, concluded that I believe the Election Commission is charged with determining what voting system will serve to fulfill the best interests of the City and County of Denver.
I suggest that this issue will provide the basis for argument from providers of systems that have been determined by the Task Force to be “lacking” in several important needs the Task Force has identified as, at least, important if not essential.
7.) Makeup of Evaluation Committee Pursuant to an RFP: The makeup of the evaluation committee pursuant to an RFP would, most appropriately, be persons in positions of knowledge and experience with voting in the City and County of Denver. Certainly, I would expect that Election Commission staff, Clerk and Recorder staff and persons intimately familiar with and involved in voting in Denver be included on the evaluation committee. I do not believe private citizens who have served as Election Judges would be precluded from sitting on the evaluation committee (although I would suggest an inquiry be made to the City Attorney for guidance on this issue). As an example, if the Purchasing Division issues an RFP for widgets, the evaluation committee would consist of using agency personnel who have knowledge and experience with widgets and/or the application for which the widgets are to be utilized.
8.) Involvement of the Purchasing Division in this Procurement: I made the point at the last Task Force meeting, that if the Purchasing Division were to be asked to issue the RFP for a new voting system for the City and County of Denver, then the process of the procurement might be viewed as being more “open.” I did not mean to imply that if the Election Commission chooses to pursue the procurement on their own that same may be viewed as a “closed” process which would preclude genuine “competition.” My point was simply that the Purchasing Division has the expertise to write an RFP that, hopefully, would best serve to preclude “proprietary” or “exclusive” specifications or subjective evaluation criteria. In either case -- whether the Election Commission or the Purchasing Division issues the RFP -- the dilemma described in point 6, above, will be an issue.
cc: Elbra Wedgeworth, Clerk and Recorder
Arlys Ward, Executive Director, Election Commission, Ron Bernstein, Deputy Manager of General Services - Purchasing
This initial purchase of Sequoia voting machines was accomplished utilizing "borrowed" funds through an entity called the Denver Capital Leasing Corporation (DCLC). (Note: The link will take you to the Colorado Secretary of State database. Click on "Home," then "Search Business Database," then input "Denver Capital Leasing Corporation." At the bottom left of the screen, click on "View Documents and History.) If memory serves, this corporation was, in part, the brainchild of J. D. MacFarlane, a former Colorado Attorney General who became, under Mayor Federico Pena, the Manager of Safety. At the time of the incorporation, in 1986, strapped for cash but desperately needing new police equipment--namely fleet vehicles--the DCLC purpose was articulated as:
(a) To acquire by purchase, lease or otherwise, interests in personal and real property, to construct, renovate or install imporvements and to lease or otherwise convey said interests in personal and real property and improvements to the City and County of Denver...The utilization of the DCLC mushroomed through the years, enabling the purchase of a plethora of stuff, including equipment for what was then Denver Health and Hospitals (now Denver Health Medical Center). Of course, title to what was purchased through the DCLC remained in the name of the DCLC until the City satisfied the debt through periodic paymen
(b) To borrow money, to become indebted, and to execute and deliver bonds, notes, debentures, certificats of participation in lease or other revenues, or other securities, instruments or obligations for the purposes of acquiring, selling or leading such interests in personal and real property, constructing, renovating or installing such improvements, and for such other purpose or purposes as may be necessary or desirable to accomplish the objectives of the corporation. Such indebtedness may be unsecured or may be secured by any mortgage, trust deed or other lien upon the property to be acquaired or any other property of the corporation...
The initial purchase of Sequoia DRE voting equipment in 1997, was accomplished via the DCLC funding mechanism. The Ordinances passed by the Denver City Council authorizing the purchase of the DRE mahcines were 303 and 304 (which, for some reason cannot be linked from the Denver Clerk and Recorder site???) , both Series of 1997. An expenditure (financed with the issuance of certificates of participation, "COP Funding") was $5,297,400. The DRE machines authorized to be purchased were AVC Advantage manufactured by Sequoia.
Part II: The curious ascendency of Mike Frontera to the position of Executive Director, Denver Election Commission.
P.S. More from VoterJones here.