Even before the issues with Archibeque alleged by Bency, there were signs of problems with the contract. Those problems begin on the top of page 6:
“THIS AGREEMENT SHALL NOT BE EFFECTIVE OR BINDING UNTIL APPROVED BY THE DoIT.”
There aren’t a lot of sentences inscribed in screaming capital letters in the contract, but that is one of them. The contract was ultimately signed with every required signature except that of the DoIT, or Department of Information Technology, which oversees the state’s IT systems. And instead of getting the DoIT (referred to as “do it”) to just sign the contract, the DOT spent a year and a half figuring out if DoIT had to sign it in the first place.
It never did. On Jan. 25, 2010, DOT Deputy General Counsel Javier Lopez emailed Ashmore and other DOT officials and told them that the contract with Bency was final, even without the DoIT signature, and that that approval was reserved for specific task orders.
“In our discussion last week,” he wrote, “I stated that NMDOT already has a binding contract with Bency and Associates that we can use to begin work.”
He went on to write that the effective date of the contract was when everyone else had signed it—a year and a half prior.
A DoIT spokeswoman tells SFR the department normally only reviews contracts of more than $50,000, and would not discuss the specific Bency contract due to pending litigation.
“We put that signature line there, but DoIT said they did not need to sign it,” Lopez tells SFR. When asked why the department didn’t just sign it and clear up the confusion, whether or not it thought it had to, he says only, “I really can’t answer that. Not that I don’t want to, but the history in this is very complex.”
Complex, indeed. The implicit argument of Bency’s suit is that because of the simmering tension between Bency and Archibeque—and his imminent firing—the DOT found a way to make the contract retroactively valid. In other words, instead of activating the contract from the moment everyone at DOT decided that the DoIT signature was unnecessary, it decided that the activation date was in September 2008, when everyone else had signed it. That allowed the DOT to terminate the contract at the end of the two-year period.
Which it did.
On Aug. 26, 2010, DOT Cabinet Secretary Gary Girón (who would not comment for this story) sent Bency a letter terminating the contract. Domenici wrote back telling him that his “notice of termination…is rejected.” By then, though, termination was, for all practical reasons, moot; the work had stopped months before.
In September, Domenici filed a motion for summary judgment (in which the judge renders a decision without a trial) to decide if the contract is valid. That decision is still pending. Lakins says there is no talk of settlement.
Had the alleged altercation over Archibeque, the contract termination and the year’s worth of back and forth of the DoIT signature never ensued—by Bency’s account—all systems would be green, and “New Mexico would be up and running with a system ready to go.”
Instead, police departments with TraCS continue to print out their forms and send them into courts and state departments.
“To my knowledge, no one has given up on that, but they’ve concentrated on getting police agencies up and running on TraCS,” Prisoc, from the state Administrative Office of the Courts, says.
Getting police hooked up with TraCS was the task at hand for Elizabeth Bency when the work stopped. Had the contract continued normally, she says, “Everything would be done by now.”
For now, the STRS is far from finished and the DOT has given no indication that it intends to complete it.
“In a sense, it’s a pipe dream that I don’t think we’re ever going to see realized,” Linda Atkinson, executive director of the DWI Resource Center, says. “The bottom line is where is the information now, and how is it helping when we talk about these repeat offenders?”
Nor is the Bency contract the DOT’s only legal problem. Last week, as reported by the Albuquerque Journal, 1st Judicial District Judge Sarah Singleton ruled that the DOT had violated both state procurement and public records laws in an un-related $40 million roadwork contract.
But not everyone has given up on the dream of statewide coordinated driving records. Prisoc says the courts are considering hiring the University of Alabama, which has developed a data distribution system similar to that of TraCS, to implement a system here. It would essentially do what the DOT promised.
“We’re kind of in the planning stages on that,” he says. SFR