Discusses contract for 30 percent design or full build out of the New Mexico Unit

By Mary Alice Murphy

The regular meeting of the New Mexico Central Arizona Project Entity took place at 10 a.m. Thursday, Nov. 8, 2018.

The meeting was delayed for about 20 minutes to wait for the arrival of the entity's counsel, Pete Domenici Jr.

At the top of the agenda was public comment. Ron Troy, who introduced himself as a Grant County citizen, said he had attended the prior meeting. "Listening to the engineering report and hearing about the lack of water made me hopeful you will look at this diversion and think about the cost per acre-foot. I hope you're thinking about doing something more advantageous than push up dams. Think out of the box of combined rebar and concrete. Think about the natural resources and think about where the diversion doesn't make sense by costs."

When retired engineer Norman Gaume raised his hand to give public comment, Entity Chairwoman Darr Shannon refused to acknowledge him.

Representing Grant County, Gabriel Ramos said he thinks public comment should be available to everyone. Representing the Grant Soil and Water Conservation District, Ty Bays, noted the members had voted not to allow Gaume to speak before the entity. "He lied to us and we have better things to do."

Representing Catron County, Van "Bucky" Allred said he supported Bays because Gaume had given the entity false information.

Representing the Gila Farm Ditch, Joe Runyan, said he was inclined to allow the three minutes of public comment. He asked what counsel would say.

Domenici said he thought Gaume could make public comment.

Gaume said the last engineering presentation from the entity's engineer has said that meters would be needed for monitoring the amounts of water coming into storage and out of storage. "All three surface diversions—Winn Canyon on the Gila, Weedy Canyon on the San Francisco, and the diversion in Virden—must be metered. The wells will be metered, public and private. You have to monitor storage going in, staying in and coming out, including the smaller storage ponds. You will have to measure aquifer storage, a special case. You can't measure what goes in, but you have to measure what is in aquifer storage and what comes out and the recovery. You will have to meter what goes to contractors. There are two colors of water, which presents problems. There is the AWSA (Arizona Water Settlements Act) water and already adjudicated water. Metering in the ditches that hold project water and adjudicated water will be required."

Entity Executive Director Anthony Gutierrez said the proposed second amendment to the joint-powers agreement was not on the November meeting agenda of the Interstate Stream Commission. "I reached out."

Dominique Work, ISC attorney, attended the meeting by telephone. "I responded to him that some changes were required. Hopefully, the ISC will meet on Nov. 14. The recommended changes will be on your Dec. 4 meeting and potentially on our Dec. 6, meeting. We are not having a regular meeting in November. It is a telephone meeting on Nov. 16."

Representing the San Francisco Soil and Water Conservation District, Howard Hutchinson said he thought at the last meeting or two meetings ago, that "we agreed our legal representation and the ISC's would get together to iron out the changes. Will we be given the proposed changes?"

"Yes, after the ISC Nov. 14 meeting with the ISC," Gutierrez said, "we will give the draft to our board members before our Dec. 4 meeting."

The first item of new business was a discussion regarding issuing a request for proposal for engineering services for either "up to 30 percent design" or "engineering and design of the New Mexico Unit."

Gutierrez said his first thought was to go out for the 30 percent design, then he thought, why not go out for RFP for engineering and design for the NM Unit, "for the complete design. It takes 60-90 days for approval of the RFP and the potential contractual process."

He said generally people have at least a couple of weeks for people to respond to the request, after attending a pre-RFP meeting. "Once we get to the end of that period, a committee evaluates all requests or presentations. We may choose three or four for live interviews. In the RFP are score sheets. Then we have to do the contract with the approved engineering firm, with DFA approval. It's about a 90-day process."

Gutierrez that the current engineering firm, Stantec, under contract with the entity for general engineering services would have to apply like anyone else. "The contract could end at the end of the 30 percent design, then we would have to go through the whole process again depending on the record of decision. Why not go straight to the final design to complete the process?"

Allred said a downside to a second RFP would be the time element.

"Yes, and it took a couple of months for the engineering firm to get their minds around the project," Gutiererz said. "If we have engineering and get only to 30 percent design, why not go to full completion?"

Allred noted the time that it had taken just to get the JPA amendment on the ISC agenda. "If it's three or four months after the record of decision, would that matter? Why not? I'm just cautious. I like having reins on things."

"I appreciate that," Gutierrez said. "However, if the contract were done to final completion, the board could still terminate the contract after the 30 percent design, if they weren't pleased with the product. But then we would have to go through the whole RFP process again. We will have constraints in the contract."

Shannon asked if the board could start the second RFP process three to four months ahead of time.

"At that point, the Department of Finance and Administration (DFA) could say that we already had a contract that hadn't been completed," Gutierrez said. "The AECOM contract (with the ISC) ends in June. It's my recommendation to go for an RFP for the entire process."

David McSherry, representing the city of Deming said, with the entity working through the NEPA to the record of decision, his opinion would be to go ahead with the limited scope to 30 percent design.

"The work orders under the engineering contract will still involve the board," Gutierrez said.

"My recommendation is to go through the RFP process once," he said. "We have several options. We can go for the complete process, and if we get a favorable record of decision, we could choose to continue with the engineer or terminate the contract and go out for another RFP."

McSherry said he didn't want to see daisy-chaining of work orders, making it necessary to approve the work order even if the board didn't like it.

"I agree we have been under time constraints," Gutierrez said. "The engineers have done a good job of looking to the future. I assume if we receive a favorable record of decision, the time constraints will not be as strict."

McSherry said if the board obligates an engineer beyond the record of decision, "I don't want to go out on a limb here, but we might say we have to keep going with this one because we have spent money on this one."

Gutierrez said after the 30 percent design, the engineer would not be doing major changes, just minor ones.

McSherry said: "But we may need more design and engineering work."

"The RFP for 30 percent will take us where we need to be," Gutierrez said. "I see it as the same as a PER (preliminary engineering report)." He noted that the next agenda item would address confusion over the current work order.

"The current RFP with Stantec is for data gaps to get into the environmental impact statement," Gutierrez continued. "The RFP between the ISC and AECOM ends in June. We need to take this process through the entire engineering process. The RFP we are discussing is for any engineer who applies. Our current contract with Stantec is for general services. Stantec provides data but they are not doing a plan and profile."

McSherry said the ISC has the contract with AECOM for the 30 percent design.

"We chose not to use their proposals," Gutierrez said. "They were too costly, and we didn't like what they offered."

McSherry persisted. "Why hasn't AECOM delivered the 30 percent design?"

"The only thing AECOM is being paid for was the last scope of work for the yield models," Gutierrez said. "We could develop another scope of work, but we've used our engineer for the data for design services."

Shannon asked the non-voting ISC representative on the entity, Marcos Mendiola, his opinion on whether to go for a 30 percent design RFP or a completion RFP.

"The contract with AECOM ends in June," Mendiola said. "The last time it took eight to nine months to get a contract approved. I discussed this with Anthony. I said the entity could go for the 30 percent and then another RFP or one RFP, which the CAP Entity could use beyond the 30 percent, which could be terminated or continue. It's difficult to get a new engineer and bring them on and get familiar with what previous engineers have done. It will cost more to get them on board."

Hutchinson asked if the entity went with the RFP for 30 percent, "would it take us through NEPA?"

"Going to the 30 percent may or may not get us through NEPA," Gutierrez said.

Hutchinson said the 30 percent design needs to be done by the time of the draft of the EIS, which is slated for January or February.

"It depends on whether alternatives can become part of the EIS," Gutierrez said.

"We would be late in the process," Hutchinson said. "I am only commenting on the draft EIS."

Gutierrez said if an alternative were chosen for the record of decision, it would have to be designed up to 30 percent or even whole design. "I assume things will need to be engineered at that point."

"Are these not going to be discussed in the next agenda item?" Hutchinson asked.

Gutierrez said the next item was for the economics of the proposals and continuing to gather information for NEPA.

Hutchinson pointed out the AECOM has the contract with ISC, but "is not our engineer of record. The original contract was for 30 percent design."

Mendiola said the contract with AECOM was for up to 30 percent design, but not for 30 percent design.

"We are sitting at the point where we will have one 30 percent design engineer," Hutchinson said. "The joint leads will decide on the preferred alternative. I am wondering if we're walking out on a limb with what we're going to do with 30 percent design."

Gutierrez said the RFP needs language to full build out. "In our current process, our engineer has provided data for NEPA. It's the plan, profile and geotechnical information we are lacking."

"When we have the draft EIS and we're looking at several alternatives, they are around concepts," Hutchinson said. "It is my understanding that in order to have proper disclosure in the EIS, the joint leads want 30 percent design."

Jeff Riley of the Phoenix Office of the Bureau of Reclamation said the 30 percent design "would be great. It's becoming apparent there won't be 30 percent design to analyze. We are doing our best to work with what we have, but 30 percent design is preferred for the EIS."

"We're not there and we won't get there," Hutchinson said. "In reality we're going to approve the 30 percent design or full build out, but it will be July before we can execute a contract for 30 percent."

Gutierrez protested that it doesn't take six months. "It takes about 90 days. It takes the time to put out the RFP and review the responses. Once we choose a contractor, there is a 10-day protest period. Then it is sent to the DFA, and that takes two weeks to 30 days. Our last RFP took less than 90 days."

Hutchinson said the process would not need to go through the ISC.

Representing the Gila Hot Springs Irrigation Association, Allen Campbell said engineers need liability contracts, too. "If we go through the whole process with one engineer, that engineer will carry the liability. If we do a second RFP, that engineer would have to check every bit of work from the first engineer to make sure it had no liability. I think we should go for full build out. If the wheels fall off, we have an out to terminate."

Vance Lee, representing Hidalgo County, said having one engineer also eliminates finger pointing.

Shannon said the Mendiola had brought the issue to the entity's attention. "We need to make a decision. If we go full build out, we have a way out."

"I'm still at a quandry," Hutchinson said. "Why would be need a contract with an engineer for 30 percent or full build out, if we don't know what we're designing? I'm still confused about what we are designing at 30 percent, if we haven't finalized the alternatives. When AECOM ends in June, we lose the modeling components."

Gutierrez said the models are already completed.

Hutchinson said: "If we're coming up to December 2019, we can then come up with the 30 percent design. Why do we need it now?"

"You say we need 30 percent now but you don't know what we need the 30 percent for," Gutierrez said. "Why not have an engineer during this process?"

Hutchinson said: "We have an engineer during the NEPA process. That existing contractor can continue after the draft EIS."

"We're providing information for the EIS, but we still need to get more design," Gutierrez said.

"The February draft EIS comes out," Hutchinson said. "In February we have our engineer do the 30 percent design."

Gutierrez said he didn't have an answer for that. "I was trying to be pro-active to have an engineer to be able to give more design. Our current engineer is only for general services."

Shannon said: "We would have one on board when we need one."

McSherry said it would be March, "since it involves Deming. I recommend you put this off until December." He made a motion to that effect.

"I have spoken to the Deming City Manager and the Deming counsel," Gutierrez said. "They don't think it needs to be approved by the Deming City Council."

Domenici said he has heard some discussion that there may be alternatives brought up in January or February before the EIS.

"Once we have the preliminary EIS, we will have the preferred alternative," Gutierrez said. "If the board likes it, it will require action by the board. For instance, if the alternative were to use the GBIC (Gila Basin Irrigation Commission) infrastructure, the board could take action."

Domenici pointed out the entity has a general services engineer. "We have asked AECOM to do things, but they would not do them. We have had challenges. I think given the lay of the land, the more momentum we can show, it helps us out. By December, we have to be able to say we will have the design and have a commitment to show we have the design well in hand, if even by March or April, so we have no engineering gaps and can perform to third parties."

Campbell said: "If we don't, it will cost us more. I think we need to go for it. If we have to replow the same ground, it doesn't show us well. I will vote against putting it off."

Ty Bays, representing the Grant Soil and Water Conservation District, said he agreed with Campbell.

Shannon put McSherry's motion to a vote. Three voted to delay action until December. The others voted no. "We will not wait until December," Shannon said.

Lee moved the entity go to an RFP for engineering purposes for the engineering and design of the New Mexico Unit." It was seconded.

Hutchinson said he would vote for the motion. "Putting it off doesn't make sense. However, I will not be voting for work orders until we are clear that we are working on 30 percent design and until I know what we are engineering. We have wasted a lot of money on projects that went nowhere. They were someone else's dreams. There has to be direct communication with the ones who will use the components."

Lee agreed "100 percent. This body was not responsible for the first contract [with AECOM]."

Allred said he, with some of his outspokenness, been clear on what Catron County wants. "We want communication on what will be designed. There has to be clear understanding of what this board and the people of the four counties want."

Campbell said he, too, did not want to waste any more money. "I will support engineering in general. Our biggest problem has been this body not interacting with the engineers well."

Gutierrez took some responsibility for that. "It is extremely difficult to make decisions without this body knowing what the proposal should look like. Our engineers did what we asked them to do. This board has to read all the documents I send out and make sure you're knowledgeable about what we're discussing."

The next article will continue with new business with a request to amend a motion from the September meeting.