There have been some new twists in the Rope-a-Dope-Opus Caper, formally known as the Burnside Bridgehead project. When we last left this saga, Beam Development, the Portland-owned concern who got totally snookered by the Portland Development Commission, had filed an appeal of the highly dubious decision by the PDC commissioners to give the right to build the condo palace to Beam's competitor, Opus Northwest. Since then, as b!X has capably reported, the PDC's head honcho, Don "the Don" Mazziotti, has decreed (or announced that the PDC's acting chief lawyer has decreed -- hard to tell) that the appeal process for the project is going to be changed.

A review of Mazziotti's memo (pdf) reveals a number of curiosities. Most significantly, it announces to the commissioners that the appeal will be decided, not by the PDC chief executive, as stated in the request for proposals, but rather by the PDC commissioners acting as a group. According to the memo, the decision was made by the PDC's unnamed "interim general counsel":

The Interim General Counsel has concluded that because the decision-maker was changed from the Executive Director to the Commission, the party/entity reviewing the protest should be changed from the Executive Director to the Commission. Therefore, the appeal should go directly to the Commission.

It made sense for the Executive Director to be the final decision-maker on a protest when the Executive Director was also the final decision-maker on the selection of a developer for the project. But it does not make sense for the Executive Director to be the final decision-maker on a protest where the Commission selects the developer. If this were done, the illogical result would be to have the Executive Director reviewing a decision of the Commission.

The deviation from the original request for developer proposals was justified this way:

In December, 2004 the selection process was modified to both change the decision-maker from the Executive Director to the Commission and extend the timeline for a decision. On December 10, 2004 an email was sent to the Commission describing the change in the process to make the Commission the decision-maker. Attached to that email was a project update that was being distributed to the public. This project update also showed the change in the process to make the Commission the decision-maker.

On January 4, 2005 the Executive Director sent a memo to the City Councilors which described the revised schedule for public input. This memo identified the revised process including the identification of the Commission as the decision-maker.

On January 19, 2005 an email was sent to representatives of each of the three proposers which detailed the remaining process, which indicated that the final decision would be made by the Commission.

It is clear that all affected and interested people were informed that the selection process and time line had changed. The selection process continued until the Commission made its final decision on April 27, 2005.

Although this change in the process to make the Commission the final decisionmaker was distributed widely, there was no formal addendum to the RFP changing the decision-making process. Consequently, the protest process language was not changed to reflect that the Commission was now the decision-maker.

The memo also notes that the original request for proposals reserved the right to "[r]evise the solicitation, evaluation or selection process including extending the deadline or canceling without selecting a developer."

All true, but none of it alters the fact that the change in the process was announced the day after Beam filed its "protest." I'm no expert on Oregon administrative law, but for an agency to announce a change to an appeal process after the appeal has been filed seems highly unusual, even if there is some reasonable justification for it.

Even more curious to me is the idea that a "protest" would be decided by the same party that issued the original decision, which was the case even under the original bid request. That really offers the frustrated member of the public little comfort. Typically, a "protest" or "appeal" is made to a higher authority, rather than to the original decision maker. Not at the PDC, I guess.