The VMI Contract: Why the Rush?

by James A. Bacon

Last November 5, the Commonwealth of Virginia issued an RFP for a contract to investigate racism at the Virginia Military Institute. The document set an ambitious deadline. Responses were due November 17 — giving vendors less than two weeks to prepare submissions. Moreover, the document wanted the successful bidder to provide preliminary findings and recommendations by Dec. 31 and final recommendations by June 2021.

That made no sense to Carter Melton, VMI class of ’67, two-term VMI board member, and retired president of Rockingham Memorial Hospital. During his 30 years with the hospital, he had developed dozens of RFPs. He had never seen such ambitious deadlines for such a complex project. When he read the document, he was astonished — so astonished that he took out a full-page ad in the Sunday Richmond Times-Dispatch to get his views in front of Governor Ralph Northam.

First, he wrote, the scope of this project was vast and boundless. The RFP called for extensive document review, focus groups, anonymous questionnaires, a cross mapping of relevant VMI policies with those of every other college and university in the Commonwealth, and numerous legal opinions. “This is a huge piece of work; it asks for everything but the kitchen sink.”

Second, the RFP allowed vendors only eight business days to evaluate the scope of work, contact the state for clarifications, develop a comprehensive plan, and line up sub-contracts. “8 business days! … It might be a world record.” (Melton’s emphasis.)

Third, the project required the winning vendor to provide “preliminary findings and recommendations” by Dec. 31. In closing his open letter, Melton drove home the futility of the exercise:

Governor, if you have one of those state calendars handy, you might want to pull it out, and you will see that between November 17 (the first possible day any vendor could begin) and the deadline for “preliminary results and recommendations” on December 31 there are:

  • A total of 45 calendar days
  • 7 weekends
  • Thanksgiving Holiday
  • Christmas Holiday
  • The Corps goes home in phases on 22 and 23 November, leaving an empty barracks in which the vendors can interview only themselves until well into January; and
  • Shortly after the Corps completes exams online, everybody else at VMI leaves on Christmas break.

On a prima facia basis, there is no way any vendor can give you and your political colleagues sound and
well-researched “preliminary results and recommendations” by December 31, 2020 unless the vendor knows in advance what the “primary results and recommendations” should be.

To anyone reading Melton’s letter, the obvious question was: What was the rush?

An accelerated timetable. No one within the Northam administration ever acknowledged the letter, but Melton was prescient. Although the state issued a notice of intent to give the contract to Barnes & Thornburg on Nov. 17, the contract wasn’t officially signed, and work couldn’t begin, until Jan. 7 — a week after the preliminary report was due. When the law firm did issue an “interim” report Feb. 5, it had reached no conclusions and formulated no recommendations. Instead, the firm complained that it had spent the previous month bogged down in settling procedural issues with VMI leadership. About two weeks after the interim report was released, a lawsuit filed by a losing bidder, Robert C. Morris Jr., suggested that the RFP had been riddled with irregularities.

An experienced government contractor with a deep bench of contacts, Morris was accustomed to moving quickly. Within the accelerated timeline demanded by the RFP process, he managed to produce a creditable proposal, He assembled a gold-plated, racially balanced panel of experts with military service-academy backgrounds and provided a detailed exposition on how his firm, CAI, would conduct the investigation. When he lost the bid, he filed a protest, which he followed up through aggressive Freedom of Information Act requests. The emails he recovered make it crystal clear that the Northam administration was determined to award the contract as soon as possible.

There were hints from the very beginning that the investigation was political in nature. Northam announced the investigation after the Washington Post published an expose that concluded on the basis of several incidents of a racial nature that minorities at VMI were subjected to “relentless racism.” Using even stronger language, Northam decried “the clear and appalling culture of ongoing structural racism” at the military academy, and he ordered an “equity audit and investigation” into race relations there. A memorandum distributed under his name on Oct. 30, 2020, outlined the approach the audit should take. The timing of the Dec. 31 deadline for the preliminary report  suggested that Northam wanted a work product that would allow him to prepare and submit legislation to the 2021 General Assembly.

Frances Bradford, deputy secretary of education

The emails Morris uncovered make it possible to reconstruct the harried activity that ensued once the Governor decided to press forward with an investigation. The administration ran the RFP through the State Council of Higher Education for Virginia (SCHEV), the agency that provides oversight of Virginia’s public colleges and universities. Fran Bradford, deputy secretary of education, was appointed to bird dog the project and act as go-between with the highest levels of the administration. She was tasked with finding ways to telescope a procurement process from the normal 30 days down to 10 days. In the end, she succeeded — though not without exposing the administration to legal liability.

SCHEV has reservations. Administering the RFP was not a job that high-level SCHEV administrators were looking for. The email trail makes clear that the Governor’s Office was applying intense pressure to accelerate the RFP process, and that SCHEV officials were reluctant participants in the exercise.

Peter Blake, executive director of SCHEV

On October 29 SCHEV Executive Director Peter Blake, a career state employee, emailed two key subordinates: Jennifer Brooks, who handled SCHEV’s procurement contracts, and Ellie Boyd, the agency’s budget & finance director. “The Secretary of Education [Atif Qarni] would like for us to do the procurement for an investigation of VMI,” he said. “You have read the news accounts. I told Fran that we do not want to do it.”

But there was no evading the task. The next day Blake followed up with an email to Brooks: “They are [interested] in having a contract in place within 2 weeks of issuing the RFP. Is that possible?”

Replied Brooks: “RFPs have to be posted for a minimum of 30 days.”

Blake then inquired about an alternative approach. “What about a quick quote option? What can be done to shorten the time?”

Brooks ruled that out. Quick Quotes, she said, had to be posted for three business days. To get a decent pool of responders, a week was needed. More to the point, Quick Quotes applied only to projects under $100,000, and the administration would be required to take the lowest-cost bid. “We don’t have as much flexibility in scoring responders based on variables other than cost as we do in an RFP.”

Amid the flurry of emails, Boyd warned Blake that SCHEV staff was already snowed under. By way of context, SCHEV, like all  state agencies, was consumed with preparing the state budget that the governor shortly would submit to the General Assembly. “Jennifer [Brooks] already has a more than full plate with SCHEV’s procurement activities,” Boyd wrote. “In the current situation, we are all struggling to stay on top of things as it is. In addition, I would think we would want to stay out of this situation. We don’t have the time or resources for this. Just my opinion….”

“I have the same opinion,” said Blake, “but sometimes we get in positions we don’t like. Fran and I talked this morning, and she is going to take the information I gave her back to her bosses to see what the next steps are.”

Emails continued flying on Oct. 30. Around noon, Blake emailed Brooks and Alan Edwards, SCHEV’s director of policy studies.

The Secretary’s office wants us to manage the RFP process for the VMI review. Fran Bradford says she and others have written the guts of the proposal. … She said that the Secretary of Administration said that there is a process that can be completed in 10 days. I am not aware of that but Fran said that Sandra Gill at DGS can help us. Fran mentioned a timeline that results in an initial report before Christmas, a second report in early February and a final report in June. …

It is not my first choice to do this, but sometimes these things happen.

Brooks responded by email that she would look into the 10-day RFP. She was planning to go on vacation with her children that weekend, but she promised to keep up via email.

“You should go on vacation and not worry about it,” Blake responded.

General Services issues a warning. In another email that same day Blake asked Brooks to send him an RFP template, assuming such a thing existed. She sent a copy of an RFP that SCHEV had recently completed to use as a model. He forwarded it to Bradford.

Scrambling to figure out how to shorten the timeframe of the RFP, Bradford touched bases with the Department of General Services. DGS manages statewide procurement services, including the digital procurement portal eVA. DGS establishes the policies and procedures for procurement in the state, and Virginia’s leading experts on procurement worked there.

She reached out to two officials with the Department of General Services (DGS), Sandra Gill and Pete Stamps. “Someone — I am not clear — gave me your names as possible resources as we try to get an RFP on the street as quickly / but legally as we can for this ‘investigation.'”

She had a “sample RFP” given to her by Blake and “the guts of what might constitute the ask on our end,” but she said she had “zero idea how to marry those, and I may end up being the one to do it.” Could the DGS help?

In a Nov. 2 email, Brooks wrote to Bradford, Blake and Boyd, that she had just gotten off the phone with Stamps and had figured out “how I can issue an RFP for less than the standard 30 days.” The key, she said, was waiving the required pre-proposal conference in which the state made a presentation about its request and potential bidders had an opportunity to ask questions.

Pete Stamps, statewide procurement director

Stamps, Virginia’s statewide procurement director, cautioned her about issues that could arise. A 10-day RFP would limit competition because some potential bidders would not be able to turn around a proposal in that amount of time. “What we definitely don’t want is to run into a situation where any vendors are questioning us, or submitting FOIA requests trying to figure out why we handled any aspect of the procurement because that would delay issuing a contract on the back-end.”

Meanwhile, Stamps reviewed the documents that Bradford had sent him. In a Nov. 3 email, he raised yet another concern — the accelerated schedule would leave little time for evaluating the proposals.

I realize time is of the essence and SCHEV is on an extremely tight timeline, but it appears the closing date for the solicitation and the anticipated date the contract begins are both 11/17/2020. How will SCHEV’s evaluation team evaluate proposals, score, negotiate, accept Best and Final offers (if requested) and award all in the same day proposals are received? I believe this may be a great risk for a protest from other offerors or a point of scrutiny by other individuals.

Damn the torpedoes, full speed ahead. Despite the many concerns, SCHEV issued the RFP by November 5 — only five days after getting the nod from the Governor’s Office. Brooks had to work overtime while on vacation. In one email, she noted, she “was online until about noon today and then had to get the kids out of the hotel room. So I am just now getting back to work.” 

On Nov. 17, a panel of evaluators comprised mostly of Northam political appointees awarded the investigation contract to Barnes & Thornburg.

Melton’s letter proved prophetic. Due to delays arising from Morris’ formal protest, slowdowns caused SCHEV employees working at home during the COVID-19 epidemic, and the holidays, the contract was not formally signed until Jan. 7, blowing the Dec. 1 initial report out of the water. When Barnes & Thornburg touched base with VMI, it ran into unanticipated issues regarding student privacy, the ability of VMI lawyers to sit on the investigators’ interviews with students, faculty, and staff, and whether VMI should suspend the Honor Code for students giving testimony. Only by February was the investigative team able to begin its work of interviewing people in earnest.

Why the rush? The Governor’s Office moved heaven and earth to shorten the RFP process. What was so urgent about the situation?

In a Nov. 3 email to Jennifer Brooks, Bradford gave one possible explanation, “The timeline is tight,” she wrote, “because we need to reflect the RFP in the gov’s budget amendments which are finalized tonight.”

But that explanation makes no sense. Northam had advertised the fact that he planned to request $1 million for the study. Everyone knew how much the study would cost — including Barnes & Thornburg, which submitted a bid of $1 million on the nose, and CAI, which came in just a few thousand dollars lower. There was no uncertainty about what number to plug into the budget.

Another possible explanation for the tight timeline was political. Northam wanted a fast turnaround on preliminary conclusions and recommendations so he could introduce legislation in the 2021 General Assembly session.

A third possible explanation for the expedited schedule is that the Governor’s Office had a preferred vendor in mind — Barnes & Thornburg, a law firm that had committed itself to the struggle against systemic racism and could be counted on to vigorously press the case against VMI and yield a predetermined result. Under this scenario, the Northam team wanted to shut down competition. That’s essentially the argument that Morris’ lawyers made in the CAI lawsuit.

In a future post, Bacon’s Rebellion will review the evidence behind CAI’s allegation that the contents of the RFP were dictated by the Governor’s Office to yield a fore-ordained outcome.