TRANSMITTAL LETTER FOR BOARD MEETING OF MAY 21, 2020
COMMITTEE ON PROCUREMENT
Mr. Brian A. Perkovich, Executive Director
Title
Issue purchase order and enter into agreement with Marcelo H. Garcia, PhD in connection with ongoing litigation entitled Hampton v. MWRD, Case No. 2011 CH 25822, and Jacklin v. MWRD, Case No. 2011 CH 25985 in an amount not to exceed $30,000.00, Account 101-30000-612430; Requisition 1529580 (Deferred from the May 7, 2020 Board Meeting)
Body
Dear Sir:
Authorization is requested to issue a purchase order and enter into an agreement with Marcelo H. Garcia, PhD for expert witness services in connection with the ongoing litigation entitled Hampton v. MWRD, Case No. 2011 CH 25822, and Jacklin v. MWRD, Case No. 2011 CH 25985.
The District is the sole defendant in these class action lawsuits filed by residents and homeowners in Bellwood, Hillside, and Westchester, Illinois for damages suffered following a severe rain event on July 23-24, 2010. Plaintiffs allege that the District’s actions during that rain event effectuated a taking of their homes without just compensation in violation of the United States and Illinois Constitutions.
Plaintiffs indicated that they will be disclosing at least three expert witnesses to support their claims against the District. District technical staff will be used as part of the District’s defense, providing testimony on internal operations and procedures and some expert testimony. However, the District must also retain the services of an expert in the areas of hydrology and modeling of area waterways. The District interviewed three experts in this field and they were: Dr. Susan Paulsen, PhD of Exponent, Dr. Marcelo Garcia, PhD, affiliated with the University of Illinois and Dr. Theodore Hromdaka of Hromdaka and Associates.
The Law Department interviewed the potential experts, evaluated their credentials and reviewed their proposed hourly rates. Based on this evaluation, in order to adequately defend the District, the Law Department requests approval to retain Dr. Marcelo H. Garcia, PhD, a professor in the University of Illinois at Urbana-Champaign’s (UIUC) Department of Civil and Environmental Engineering, to provide engineering and expert witness services in these cases.
The level of expertise required for this work is specialized, requiring experience in reviewing and analyzing rainfall data, collection systems, area waterways, and other hydraulic and hydrological data. Dr. Garcia is a reputable scientific investigator and researcher and has served as an expert witness in the past for the District. The Law Department’s recommendation is based on Dr. Garcia’s superior knowledge of District operations, area waterways, and modeling.
Dr. Garcia has submitted a proposal for performing the requested work on an hourly basis. Dr. Garcia’s rates for this service would be $300.00 per hour for document review, research and general file work; $350 per hour for computer programming, engineering analysis, graphical presentations of data and results, exhibit preparation, 2D and 3D graphics and animations, image processing, simulations, and video preparation; and $500.00 per hour for deposition or trial testimony. Dr. Garcia would also be reimbursed for costs and expenses incurred for travel.
Since the services to be provided require a high degree of professional skill where the ability of the individual plays an important part, and Dr. Garcia possesses the requisite skill, it is recommended that the Director of Procurement and Materials Management be authorized to issue a purchase order and enter into an agreement without advertising, as per Section 11.4 of the Purchasing Act, in an amount not to exceed $30,000.00.
This request is one of two being submitted to the Board related to this litigation. Although these requests are directly related to each other, they are being submitted separately due to UIUC’s Master Agreement with the District and the rules it imposes on the use of UIUC’s resources. This request is directly related to a companion transmittal letter on today’s agenda requesting to authorize UIUC to conduct a flood causation analysis for the area relevant to the litigation.
Dr. Garcia will rely upon the flood causation analysis to support his expert opinions in the litigation. The flood causation analysis will utilize UIUC resources and staff. As such, the District’s Master Agreement requires the District to pay UIUC directly for the use of these resources. However, UIUC as an institution does not act as an expert witness in litigation and cannot accept payment for expert witness services. Accordingly, the Law Department is requesting authority to issue the two purchase orders and enter into the agreements separately to allow the District to retain Dr. Garcia.
The Multi-Project Labor Agreement (MPLA) is not applicable to this contract because the classification of work does not fall within the provisions of the MPLA.
The requested service does not provide practical opportunities for direct or indirect subcontracting. The principal investigator must be able to stake their professional reputation and credibility on their own work. Reliance on another vendor is not feasible. Therefore, neither Appendix A nor Appendix V should be included.
Funds are available in Account 101-30000-612430.
Requested, Susan T. Morakalis, General Counsel, STM:JTM:ATF:CN:nl
Recommended, Darlene A. LoCascio, Director of Procurement and Materials Management
Respectfully Submitted, Barbara J. McGowan, Chairman Committee on Procurement
Disposition of this agenda item will be documented in the official Regular Board Meeting Minutes of the Board of Commissioners for May 21, 2020
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