Stealth RFP Would Put Approving Land-Use Permits In Private Hands

Michael Catania | September 29, 2010 | Opinion
The Christie administration wants to change a key way DEP does business, without filling the public in on the plan

For all its bluster and brouhaha, the Christie administration is apparently perfectly capable of moving quietly when it wants to. Case in point, a recently released Request for Proposals whose overarching goal appears to be privatizing the review of land-use permits.

Environmental advocates who’ve learned about this plan are understandably alarmed. But the Christie administration is pushing the RFP ahead with little or no public debate.

Here’s the back-story: The Division of Purchase and Property in the Treasury Department has just issued a Request for Proposals on behalf of the Department of Environmental Protection. The goal is to find “a contractor to assist the Division of Land Use Regulation… in a variety of tasks to meet its obligations and responsibilities to provide timely reviews and decisions on incoming applications, and appeals to those decisions.”

This RFP raises some very troubling questions. Is DEP quietly trying to expand the privatization of its permitting responsibilities? If so, why is there no public debate? Where are the safeguards that should make the public comfortable that these private contractors will be properly screened and supervised? Or is this merely an end-run around civil service requirements and union contracts, so DEP can replace those pesky employees who often say “No” with more sympathetic contract permit reviewers?

To be fair, DEP and other state agencies have occasionally used private contractors to help with paperwork backlogs. Yet the job description for these new contractors far exceeds the role that “temps” would normally play, and few application backlogs exist in this down economy. In fact, when describing the qualifications that successful bidders should have, the RFP mimics the requirements of several DEP job descriptions.

Further, the RFP also states that the contractor would be responsible for determining administrative completeness of applications, conducting the technical review of the application, writing the final permit decision document and then recommending to the appropriate DEP supervisor whether the permit should be approved or denied. Given these responsibilities, it is hard to imagine how a DEP land-use supervisor could do anything but accept the contractor’s recommendation.

Assuming that these contractors are more than temps, as a fair reading of the RFP clearly suggests, where is the press release trumpeting this innovation? Where is the legislation that has been introduced to implement this initiative? Nowhere, apparently, since this proposal is definitely flying under the radar.

There’s also the issue of money. The RFP indicates that “funding to allow the contractor to review 5 to 10 percent of the expected number of permits is anticipated” and that “the contract term will be five (5) years with three (3) optional one (1) year extensions.”

The RFP further states that “an annual amount equal to $200,000 to $600,000 is expected to be available in the fiscal year 2011 budget… for the purpose of funding this contract. Thereafter, annual funding will be sought but can not be guaranteed.” I have to wonder, if DEP has and expects such substantial funds, why doesn’t the agency just hire and retain more of its own staff, rather than replace them with consultants whose loyalties may be uncertain?

Whatever you think about the recently enacted but controversial Licensed Site Remediation Professional legislation – which privatized the supervision of site remediation cases – the fact is that the LSRP proposal was fully vetted for many months. Stakeholders on every side of the issue had an opportunity to weigh in. The legislation that resulted from this robust public debate established a certification process, a licensing board and serious sanctions to discourage abuses.

This recent RFP offers none of the procedural or substantive safeguards used to privatize site remediation. Worse, it is being done through a process that does not even allow comment, except from prospective bidders.

This is no way to make important public policy. Proceeding in such a furtive fashion completely usurps the right of both the public and the Legislature to participate in what is certainly a major policy decision.

If the advocates of having private contractors replace DEP land-use staff really believe in the merits of this proposal, they should be willing to make those arguments in a public forum and to persuade us all that this is a good idea. Instead, they hide behind a stealth notice posted on an obscure website frequented only by firms seeking lucrative state contracts. And that is definitely no way to run an airline – or a government agency charged with protecting public health and the environment.