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Council can hire firm for audit without an RFP

By Staff | Mar 7, 2011

Cape Coral City Council can hire a firm or firms to conduct a construction and forensic audit without going through the “request for proposal” process, according to a legal opinion issued by the city attorney’s office.
City ordinance outlining how the municipality obtains professional services exempts auditing services from the public advertising and procurement requirement for services and goods over $50,000 and state statutes do not mandate the Cape go to RFP for this type of audit, the city’s legal department wrote.
“Based on the foregoing, it is this office’s opinion that the City Council may select a Construction Auditor or a Forensic Auditor without issuing a request for proposal due to the exemption stated in section 2-141(b)(13),” Assistant City Attorney Brian R. Bartos wrote in the March 4 opinion released Monday. “Of course, the Council has the option of utilizing a competitive selection process if it believes such a process would be in the best interests of the City.”
City Council sought the legal opinion last week after Mayor John Sullivan proposed to hire two firms, R. L. Townsend & Associates Inc., and Kessler International, to conduct a combined construction/forensic audit of the Southeast 1, Southwest 4 and Southwest 5 components of the UEP.
Since the city has used the RFP process previously for these types of audits, the question was raised as to whether council could opt to bypass the process and hire these two firms, both of which have audited portions of the utility expansion project in the past.
Sullivan said Monday he was not surprised by the finding of the city attorney’s office.
The question of whether or not the statute of limitations on potential criminal activity is close to expiring is unknown. Sullivan said the law is “not cut an dried.”
“The law itself is kind of foggy,” Sullivan said. “My interpretation depends on when you find the problem and how fast you institute the lawsuit.”
The full cost of the audits is unknown.
Councilmember Marty McClain, who has been critical of awarding the audits to Kessler and Townsend without an RFP process, said a RFP would be “fair” to the citizens in order the find the best price, despite the opinion of the city attorney’s office.
McClain doubts the audits will turn up any wrong doing, and waste money in the process.
“We have nothing that shows there was improprieties at all. We’re going on speculation, and I don’t see it,” McClain said.
The mayor said he would have the audit on the agenda for next week’s meeting for council to vote on.