By Jake Spivey
In late fall 2021, Virginia Military Institute’s Board of Visitors and its newly installed superintendent were still reeling from the state investigator’s specious report condemning the Institute’s cultural climate. Resolving to quiet a mostly nameless and unidentifiable assortment of individuals criticizing VMI, the Board submitted through the state’s contracting website a request for proposals (RFP), for diversity, equity, and inclusion (DEI) consultation and training services. The solicitation sought companies that could help VMI “intentionally strengthen its commitment and work around DEI to aid the Institute in achieving Inclusive Excellence Plan goals and objectives.” The to-be-hired firm would provide VMI’s leadership a way to “institute DEI activities” for VMI’s leadership, faculty, full-time staff, and the 1,600 member Corps of Cadets. The RFP outlined requirements and described services that, no doubt in the minds of VMI’s leadership, would correct deficiencies neither the Commonwealth nor the investigative team had factually identified or documented in the June 1, 2021 report.
Unfortunately, in its zeal to implement a contract for DEI consultation and training, VMI attempted to circumvent the Commonwealth’s procurement laws. A competing contractor, the Center for Applied Innovation, LLC (CAI), recognized a variety of inconsistencies regarding access to records as part of the proposal process. As alleged in court documents, VMI improperly awarded a “Notice of Intent” to award a contract to NewPoint Strategies, LLC (NewPoint). On March 18, 2022, CAI filed a formal protest in Rockbridge County Circuit Court alleging VMI had violated the state’s Virginia Public Procurement Act (VPPA). VMI denied it acted improperly, delivering a denial letter to the Court on March 28, 2022. It asked the Court to dismiss CAI’s lawsuit, claiming VMI was exempt from the state’s procurement laws. On July 14, 2022, Judge Christopher Russell listened to oral arguments from CAI’s attorneys and lawyers from the Office of the Attorney General, Christopher Bernhardt and Patrick O’Leary, who represented VMI. On August 3, 2022, in a surprise ruling, Judge Russell agreed with CAI and declined to dismiss the lawsuit. VMI appealed this decision, requesting the Court reconsider its original ruling. The Court did so, reversing its opinion. This action emboldened VMI to surreptitiously continue pursuit of a DEI-services contract with NewPoint.
However, the Court also allowed CAI to continue its case and provided it an opportunity to revise its original complaint against VMI. CAI filed its amended complaint on December 28, 2022. The amended complaint was argued before the Court on January 17, 2023. VMI’s attorneys from the Office of the Attorney General continued their original tactics, seeking to have the case dismissed on technical grounds rather than demonstrating that VMI’s actions during the initial RFP process had been transparent, honest, and legal.
On January 31, 2023, VMI filed a motion with the Court stating it no longer planned to award a contract to NewPoint as specified in the original RFP. CAI, in its original protest to the Court, sought exactly this action. VMI’s motion asked the Court to dismiss the case based on the absence of a contract between VMI and NewPoint. However, VMI was seeking dismissal of the lawsuit because its Office of Diversity had already engaged with NewPoint, contracted for services provided by NewPoint, and had received training and written products from NewPoint.
Between June and July 2022, VMI’s DEI office and NewPoint participated in multiple phone calls and email exchanges. VMI’s purpose for these discussions was to engage NewPoint in negotiations for an updated price structure that was much lower than what NewPoint had submitted in its original bid. With a lower cost, less DEI-specific terminology, and a different contract title, “Special Engagement,” VMI then contracted with NewPoint and mitigated public disclosure of the contract. It performed the latter action by using a non-standard office to issue a purchase order rather than a contract for the services.
VMI’s Procurement Services Office is the contracting agency of record for solicitations for VMI. It exists to purposely manage “the purchase of high-quality goods and services at competitive prices,” to “maintain ethical standards that reflect fairness, transparency and compliance,” and to “utilize strategic sourcing to provide the best value for the Institute.”
Instead of contracting through this office, VMI issued the purchase order using the Institute’s Protocol Office. An unlikely agent, VMI’s Protocol Office “provides direct support for visitors involved with the Superintendent and his staff. The office provides protocol guidance and direction with itineraries, seating plans, flag courtesies, and escort duties for all departments or staff who have distinguished visitors at VMI.”
CAI uncovered this contracting information switch through legal discovery, subsequently filing a Motion for Show Cause and Sanctions against VMI with the Court on April 7, 2023. The documents CAI included in its motion appear to verify that in late 2022, when the attorneys for VMI made their statements and presented an affidavit asserting VMI had no ongoing DEI services contract in place, it had in fact, already worked out with NewPoint a DEI-related scope of work which was described in nearly identical language to the original RFP. Included was the July 14, 2022 Court transcript, part of CAI’s motion, reflecting questions from the Court (Judge Russell) explicitly asking VMI to confirm it was not engaged in DEI-related work as delineated in the RFP. VMI had maintained it would not execute a contract with NewPoint so long as CAI’s lawsuit was still with the Court.
CAI’s discovery revealed that among other activities performed by NewPoint in 2022 was the preparation and submission of a “Report and Recommendations: Inclusive Excellence Leadership.” Until CAI’s finding from discovery and through its motion, this report was unknown to anyone outside the VMI. It is most likely a significant component of the Superintendent’s new strategic plan, which he plans to deliver to the Board of Visitors during its upcoming meeting on April 27-29, 2023.
Throughout the summer of 2022, VMI deceptively worked with NewPoint, misleading the Court, the Office of the Attorney General, and the Commonwealth’s citizens. VMI tutored NewPoint regarding its revised proposal. NewPoint provided DEI-related training, facilitation, focus groups, surveys, and workshops identified in the original RFP (Nov. 31, 2021) using cadets and VMI staff, including VMI’s Chief of Staff. VMI did these things to execute the work under the original RFP without interference from the lawsuit filed by CAI, and to prevent VMI alumni, parents, and other concerned citizens from finding out about NewPoint’s work.
Though the Court will decide, it does appear based on the documents CAI has submitted in its multiple motions, that VMI and its legal representatives — one of whom is an alumnus — failed to inform the Court about its illusory behavior, material representations, and deliberate omissions during the hearing on July 14, 2022. Such conduct would be unthinkable for VMI alumni, but the majority of personnel in positions supporting the Office of the Superintendent are not VMI alumni. Their understanding of honor may not be as exacting.
Jake Spivey is a VMI alumnus