Wednesday, June 04, 2014

No-bid St. Augustine Beach telecommunications contract is dead; good work by City Attorney

Like old soldiers, perhaps no-bid government contracts "never die," they just "fade away."
That's exactly what has just happened with a noisome, pestilential eighth of a million dollar, five-year contract that tiny St. Augustine Beach had approved April 7, 2014 with multibillion dollar multinational corporation, WINDSTREAM COMMUNICATIONS.
The City of St. Augustine Beach had unanimously voted what I believed to be an illegal no-bid contract with WINDSTREAM COMMUNICATIONS. SAB did so after a March 6, 2014 meeting where Police Chief ROBERT HARDWICK invited a WINDSTREAM representative to make a rambling presentation before public comment, without a contract and without details. HARDWICK and staff were sold on WINDSTREAM COMMUNICATIONS. Again, there was no competitive bidding.
Several citizens in March and April spoke in opposition to the deal, including Robert Kahler, an experienced purchasing manager and local civic activist who worked to save the gorgeous Cooksey's Campground from developers represented by the late George Morris McClure. Dr. Pat Gill, Ed.D., Ms. Ann Palmquist and I also spoke in opposition to the no-bid contract.
At the April 7, 2014 meeting, St. Augustine Beach Commissioners authorized the SAB City Attorney, Douglas Nelson Burnett, to negotiate a three-year (not five-year) contract.
Several months elapsed.
The public was kept in the dark.
Now we know the result today through an Open Records request.
Good lawyering by CA Burnett resulted in WINDSTREAM walking away from its no-bid contract.
The result is now likely to be competitive bidding, which the City staff had avoided in violation of the City's Purchasing Policy and Section 178 of the Restatement of Contracts (Contract Violation of Public Policy). If a no-bid contract is again proposed, it will be void or voidable under the Restatement and the City's Purchasing Policy.
Fortunately, SAB's City Attorney proved adroit and adept at identifying unfair contract provisions.
The Top Ten unfair provisions in the proposed WINDSTREAM contract skewered by CA Burnett in his interlineations in the proposed WINDSTREAM COMMUNICATIONS'proposed unconscionable "contract of adhesion" were these:
1. No warranty.
2. No protection of customer privacy.
3. UCC lien (none allowed against cities).
4. Take or pay contract, even if services inadequate and there is a breach of contract.
5. "Windstream can change charge at any time for any reason."
6. Windstream can refuse to discuss billing disputes with the City's "external representative" (lawyer).
7. Disputes must be raised in 60 days.
8. Incorporation of documents on a website that are not attached.
9. Ambiguous phrases, such as stating software licensors are not responsible for service.
10.Liability for liquidated damages of 100% if city cancels contract.
Good work!
I have not always agreed with CA Burnett, whose firm also represents developers (including the 7-ELEVEN they want to cram into our historic City of St. Augustine at May and San Marco).
But in this instance, with an economy of words and sharp focus, CA Burnett helped stop a contract that should never have been voted on by St. Augustine Beach City Commissioners, because it was a no-bid illegal contract.
Good work!
We need more lawyers who read the fine print and protect government and consumers from abuses by multinational corporations like WINDSTREAM COMMUNICATIONS.
We need spinal and testicular implants for elected and appointed officials in our governments who will even consider no-bid contracts. No-bid contracts are a stench in the nostrils of our Nation.
Three cheers!

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