Facts and Risks:

Additional Information to Consider Before

Accepting Delaware County Recorder
Andrew O. Brenner’s Recommendation
for Intent to Award a Contract for a
Comprehensive Recording Software
Solution

Resolution No. 10-1095

Prepared using available public records and information

9/23/10
 The Process
• Is it ethical?
• Is it fair?
• Is it competitive?
• Is it based on facts?
• Whom does the outcome benefit?
 Is it Ethical?
From Recorder Andrew O. Brenner’s Request for Bids (RFB) for A
Comprehensive Software Solution for the Delaware County Recorder’s
Office:

§ 7.21 Non – Collusion

The Bidder/Contractor has not directly or indirectly colluded,

conspired, connived or agree with any other person or entity
concerning or regarding this contract.
 Is it Ethical?

• ACS (current software provider) clearly modified this functionality matrix – prior to it
being distributed to the competing vendors in this RFB.

• The functionality matrix is what is used to determine which bidder is “best”.

• Access, by a vendor, to the functionality matrix prior to the opening of the competitive
bidding process raises a number of serious concerns and questions.

“The County reserves the right to select the bidder deemed to be the lowest and best bidder, as determined
solely by the County and/or its representative(s)…”
 Is it Fair?

• Software vendors, who routinely respond to RFBs/RFPs to governments and

corporations via the internet, were required to pick up a paper-based copy of the
RFB at the Recorder’s office

• Competitors were given one business day to travel to, and manually collect this
paper-based copy, from the Recorder’s Office

• Bids were opened a day after the submission deadline, placing an additional travel
burden on competing vendors to be present to hear the results

• No demonstration of software, features or services was conducted in support of this

RFB – the software was not reviewed by the Recorder in real-time except for ACS
(currently in use)
 Is it Competitive?
• No risk mitigation steps were taken by County Recorder Andrew O. Brenner to
eliminate the possibility of ACS having a perceived advantage

• Vendors will confirm that the normal length of time required to bid for a
software contract with a government office is 90 to 180 days minimum –
Recorder Brenner’s process will take 34 days

• When vendors were asked to identify the last time they were required to
submit a paper-based response in a competitive bid the most pointed answer
was, “In 20 years of working in technology? Never. We’ve never been asked
to submit a paper response.”

• No site visits to counties using any of the solutions submitted to Delaware

County were conducted by the Delaware County Recorder

• No demonstration of software, features or services was conducted in support

of this RFB

• Recorder Brenner did not supply an electronic version of the functionality

matrix to vendors until 9/8/10 – 17 days after the request for bid was opened
 Is it Based in Fact?
• On September 9th, County Recorder Andrew O. Brenner stated that he required
additional dollars for staff overtime for the review of responses to the Request for
Bid and that his volumes were “up 20% this year”

• On September 16th, on page 4 of The Delaware Gazette, County Recorder Andrew

O. Brenner, in the form of a Letter to the Editor, made the following statement –
“With a sudden increase in documents being recorded (a 30-40 percent spike)…”

• The RFB that County Recorder Andrew O. Brenner submitted for consideration to
the vendors makes no mention of this “spike” or any forecasted growth in document
recording at all – and certainly no direction to vendors to include this type of growth
forecast in the cost of their contract

• Three vendors are competitively priced: ACS, DTS and Cott Systems

• ACS’ bid cannot be compared to DTS and Cott Systems on equal terms – ACS
charges a fee per document - but DTS and Cott Systems have offered a fixed bid

Fee per document = The taxpayer takes on the risk of an increase in the volume
of transactions processed by the Delaware County Recorder

Fixed Bid = The vendor takes on the risk of an increase in the volume of
transactions process by the Delaware County Recorder

The RFB cannot be based in fact if – as it appears – vendors were asked to base
the pricing estimate on historical data and not on forecasted growth;

a growth argued for vigorously by County Recorder Andrew O. Brenner in

mediums other than this RFB
 Is it Based in Fact?

• Since 2005 the unit cost charged by ACS has decreased from $2.39 to $1.99 to the
bid submitted (above) of $1.79 – a 25% drop in charges without a corresponding drop
in dollars paid to ACS

• The sudden decrease by ACS (10%) in the bid submission above should be strongly
questioned – particularly since it results in a bid that appears to coincidentally move
ACS into a favorable comparison on cost with Cott and DTS

• A per transaction bid places the risk on taxpayers, where a fixed bid places the risk
on the vendor – the ACS bid is not comparable to the other bids in this response
(except for Aptitude Solutions)
 Whom Does The Outcome Benefit?
The RFB in question was required by a series of events, all attributable to the
oversight and management of County Recorder Andrew O. Brenner:
• Public records requests resulted in the discovery that the current ACS contract was
void and unenforceable due to mishandling (missing signatures, etc.)

• The Delaware County Prosecutor’s Office advised that a contract extension be

pursued and that County Recorder Andrew O. Brenner prepare a competitive bid
request

• County Recorder Andrew O. Brenner, at his own choosing, released a Request for
Bid that does not meet the requirements for an ethical, fact-based, competitive and
fair process to determine the “lowest and best bidder”

• ACS participated in the creation of the functionality matrix (requirements) for the bid
and provided the only operating system for review (in use in the Recorder’s Office) –
giving ACS a decided advantage in what was supposed to be a “competitive request
for bid”

If the process was not ethical, fact-based, competitive and fair then the
outcome could only be a benefit to:

Delaware County Recorder Andrew O. Brenner

Affiliated Computer Services (ACS)

The process, as supported by the facts, clearly appears to have favored the
incumbents in this issue. The motivation for this behavior should be explained by
those who benefited from the process.
 The Process

• Was it ethical?
• Was it fair?
• Was it competitive?
• Was it based on facts?
• Who does the outcome benefit?