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Home My WebLink AboutCOM 0550.001 2002-2004 VMSY of X,~ O? 4~ , y ~Jyv J ° r T~ Of ~M~~ COUNTY OF HAWAII 25 Aupuui Sheet, Room 215 I lilo, Hawaii 96720-4252 (808) 9G1-8211 Fax (808) 961-6553 KONA: 75-5706 Kuakini Highway, Sui[e 103 • Kailua-Kona, Hawaii 96740 (ROR)329-5226 • Pax (808)32b-5663 TO: SUSAN CASERIA, LEGISLATIVE AUDITORS o s FROM: BILLY KENOI, MAYOR'S OFFICE O~ ~ i~ RE: THREE QUESTIONS FOR CORPORATION COUNSEL rn DATE: APRIL 5, 2004 ~ - ~ - r.~ Aloha Susan, = rv Please find attached an o~inion from Mr. Craig Masuda, Deputy Corporation Counsel, dated March 30t , 2004, regarding three questions that were raised by members of the County Council. Mr. Masuda sent me the opinion on March 30th and then went on vacation until today, April 5th. As we discussed last week, I needed his permission prior to releasing this opinion because of the legal nature of the document. If you have any questions, please feel free to give me a call at (808) 961-8508. Thank you for your patience in this matter. Sincerely, B~ Comm. No. sS0 Rsf. To: ~r~iO~~ 4 Raf. Date JNty os M,w 4~~~ Harry Kim 6r~ Lincoln S.T. Ashida Mayor Cnrporolinn Courtrel •.J,,. Gerald'l~kase ~r~ o~•Mj.+' Assistant Corporation CnunrN ~uitnt,br of ~ttfirrsii OFFICE OF THE CORPORATION COUNSEL lOl Aupuni Street, Suite 325 • Hilo, Hawaii 967244262 • (808) 961-8251 • FAX (BOB) 961-8622 March 30, 2004 PRIVILEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION AND/OR ATTORNEY WORK PRODUCT--NOT A PUBLIC RECORD DO NOT RELEASE THIS MESSAGE WITHOUT CONSULTING THE AUTHOR William Kenoi, Executive Assistant County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Kenoi: Re: Adolescent Treatment Program WRK No. 04-7241 Questions from Susan Caseria: 1. Corporation Counsel's opinion if it is legal for the County to be involved with this facility? 2. Have the service providers you have been obtaining information from submitted proposals; and if so, would we be in violation of the Procurement Code? 3. Can the County be held liable for any incident at the proposed facility? Issue: Is it legal for the County to be involved with this kind of facility? While this type of program is traditionally administered by the State, there is no apparent legal impediment for the County to be "involved" with the Adolescent Treatment Program as proposed. Pursuant to Hawaii Revised Statutes § 46-1.5(13), iY William Kenoi, Executive Assistant Page -Z- March 30, 2004 is within the powers of the County to pursue this program being that there is no identifiable State statute defeated by the County facilitating this program and that application of this program is limited to the boundaries of Hawaii County. Section 46-1.5(13), HRS, states: Each county shall have the power to enact ordinances deemed necessary to protect health, life and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute, provided also that the statute does not disclose an express or implied intend that the statute shall be exclusive or uniform throughout the State. Pursuit of this project must be done through the Procurement Code, Chapter 103D, HRS, as Chapter 103E is applicable only to the State and State agencies. Please note that this assessment is based on the understanding that the County will only be the facilitating agency for the Substance Abuse Mental Health Services Administration ("SAMSHA") grant and the Request for Proposal ("REP") procurement process and not with the operational aspects of the treatment program. County involvement with the operational aspects of the program will raise other issues. Issue: Have the service providers you have been obtaining information from submitted proposals; and if so, would we be in violation of the Procurement Code? It is my understanding that in order to determine the needs of the community a working group was gathered to formulate the conceptual idea of an adolescent treatment program, that this working group did not formulate the specifics or special provisions of the REP, and that input from the group was conceptual only. Further, it is my understanding that you made it clear to the working group that participation did not ensure any beneficial standing to any prospective service provider, that this working group included among others the two treatment providers that submitted proposals in response to RFP 2099, and that this working group would not be paid for their services. It is further my understanding that you, with the assistance of Bill Gray from Purchasing, drafted the Specifics and Special Provisions of RFP 2099, that RFP 2099 was based upon similar RFPs obtained from the State Department of Health and Human Service, that the specifics and special provisions did not come out of the working group or any of its participants, that RFP 2099 was not only published in compliance with the Procurement Code but also sent to the 10 treatment providers in the State that were identified as providing substance abuse treatment and/or adolescent substance abuse treatment, that the two treatment providers who submitted proposals were among the William Kenoi, Executive Assistant Page -3- March 30, 2004 10 treatment providers sent RFP 2099, that RFP 2009 contained provisions for prospective offerors to submit questions and request for information, and that there were no objections or protests noted during this process or during the proposal opening. It is also my understanding that the group reviewing the proposals made its selection based on the criteria set out in RFP 2099. Further, the review group did not know of the provisions of SAMHSA and made its selection independent of any SAMHSA provision. The reviewing group members were Dr. Kevin Kunz, Dr. Kimo Alameida, Dr. Rick Castberg, Ms. Jane Testa and Ms. June Kunimoto. It is my further understanding that the reviewing group was qualified to sit as the reviewing group, had no undue bias in its selection, and that no award or rejection has yet been made. Please note that until the award or rejection is made, information of the submittals is confidential pursuant to Hawaii Administrative Rules. Therefore, discussion of each proposal is to be avoided until such award or rejection is made. Based on my understanding of what has transpired thus far, there is no apparent violation of the Procurement Code at this time. It appears that the information gathered from the working group, which included input from both providers submitting proposals, was conceptual in nature and did not address specifications or special provisions, and that the specifics and special provisions were drafted by you utilizing similar RFP forms of the State. Therefore, the drafting of the RFP appears to have been done according to statute and the Hawaii Administrative Rules. Further, the reviewing group appears to have been qualified and the selection process that it followed also appears to have been pursuant to statue and rule. The procurement process thus far appears to be adequate; however, please note that Hawaii Administrative Rules on award, notice of award, and posting still need to be adhered to. Issue: Can the County be held liable for any incident that occurs at the facility? RFP 2099, Adolescent Treatment Program Special Provisions Section 8, Independent Contractor, contains indemnification provisions to protect the County. Special Provision 8 states: The Contractor shall perform the Contract as an independent contractor and shall indemnify and save the County and its officers and employees harmless from any and all deaths, injuries, losses and damages to persons or property, and any and all claims, demands, suits, action and liability therefor, caused by error, omissions or negligence in the William Kenoi, Executive Assistant Page -4- March 30, 2004 liability therefor, caused by error, omissions or negligence in the performance of the Contract by the Contractor or his subcontractors, agents and/or employees, until such time as action against the Contractor for death, injuries, losses and damages is barred by the provisions of Chapter 657, HRS, as amended, relating to limitations of actions. Additionally, Specifications 5 also provides for indemnification of the County in relation to the County's specific role as apass-through fiscal agent only. Specification 5 state: The offeror should provide a detailed proposal accepting responsibility and liability for any actions involving the treatment of adolescents in a residential setting and shielding the County of Hawaii from any role, responsibility, or liability in the management or functions of the program other than as fiscal agent for monies that pass through the County of Hawaii. Under Specification 5, the County is in a position of minimal liability and somewhat akin to a bank or other financial institution which passes fund to a developer of a housing project. In that instance, the bank is not likely to have significant liability for the acts or omissions of the developer and likewise it is unlikely that the County will have significant liability exposure for acts occurring at the proposed facility. Please note that even frivolous filing where the County has no interest need to be responded to. Therefore, there is always some exposure to the County. Sincerely, C ~ _ _r" CRP~IG T. MASUDA D puty Corporation Counsel CTM:de s:\dept\mayor\ctm misc\Itr kenoi adolescent ice program\3-04\CTMde.doc