Out of the Box (Update) 

"It's business, not personal. They're taking this personally and it's not intended that way. This is a problem for the city, not Trademark."

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The stage is set for a first-of-its-kind hearing before the Boise City Council, when on Tuesday, June 9, the Boise City Department of Arts and History will defend its decision to award a more than $50,000 contract to fabricate and wrap 39 traffic boxes with public art that some say violates Idaho procurement laws.

A good part of the defense, represented by Boise Purchasing Manager Colin Millar, is that the city's bidding process did not follow Idaho Code for such contracts because the city tags the fabrication work as "personal services," a category that also includes "janitorial, secretarial services, landscaping and snow removal."

"But where did that "personal services' definition come from? Idaho case law says 'personal services' should be something that requires technical skill," said attorney Jessica Pollack, of Carey Perkins, LLP, who is representing Boise-based Signs2U in its protest over the contract award. "But the city's definition is referring to janitors and snow plowing. That's exceptionally broad."

Signs2U and five other businesses lost the traffic box art contract to Trademark Sign Company in spite of the fact that Trademark's bid of $1,473 per box was the highest and more than twice the amount of the lowest bid of $563 a box.

"We never said we were going to go with the low bid," said Millar, following a Boise Weekly investigation (BW, News, "Outside the Box," May 27, 2015). "Looking back at our scoring, it seems very fair."

Pollack said an even bigger red flag was raised when it was revealed that Trademark had snagged perfect scores in the categories of "basic qualifications" and "specific qualifications."

"And we're not trying to bag on Trademark's qualification," Pollack said. "The point here is that there's no good reason that one company would be that much more qualified than the others." Trademark and city officials pointed out that the company has fabricated and wrapped the majority of previous traffic box art projects.

"The city's own request for proposal says yes, they will consider the history of previous projects in its evaluation, but nowhere is past performance assigned any point value," said Pollack. "If Trademark was assigned extra points based on its prior work with the city, how are they assigning those points? I promise you, if the other bidders had known that all these points were going to be assigned to past performance, these other companies probably would never have submitted a bid."

Pollack was contacted by the city clerk's office confirming that she and her client would have the opportunity to stand before the City Council and challenge the bid.

Meanwhile, BW's report has garnered plenty of online comments, primarily from those in Boise's sign industry, including quite a few defending Trademark, which Pollack says isn't issue.

"It's business, not personal," Pollack insisted. "They're taking this personally and it's not intended that way. This is a problem for the city, not Trademark."

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