The Register-Herald, Beckley, West Virginia

State News

September 12, 2012

W.Va. investigators examine contract

CHARLESTON — Three West Virginia officials on leave following a dispute over a Department and Health and Human Resources advertising contract conspired to steer that contract to a particular vendor, investigators alleged Tuesday when securing a search warrant for their office, phone and computer records.

But a lawyer for the officials — John Law, Susan Perry and Jennifer Taylor — questioned the degree of detail in the Kanawha Circuit Court warrant document, and predicted all three would be vindicated.

“It seems more in the form of a press release than a search warrant,” said the lawyer, Walt Auvil. “But, we certainly look forward to a full investigation.”

Auvil had recently advised the department that the three planned to file a whistleblower lawsuit over the contract dispute that would also allege defamation, invasion of privacy and Ethics Act violations.

The three were placed on leave in July, just as their department awarded the contract to Ohio-based Fahlgren Mortine. While a one-year contract with a face value of $473,000, it can be extended — and its value can increase — if other agencies wish to join in it to seek similar services from the winning vendor.

Falhgren Mortine barely edged out an in-state firm, The Arnold Agency, in securing the contract despite submitting a more expensive bid. The search warrant request submitted by State Police Cpl. P.T. Kelly alleges the three officials believed that the other vendor should have prevailed. While lower bids receive higher scores under the contract process, a bid’s technical details account for 70 percent of its overall score.

Among other actions, the officials repeatedly tried to second-guess or overrule other department staffers assigned to evaluate and score the bids, which were submitted by a total of four firms, Kelly alleged. The Arnold Agency had won the previous version of the contract, and Kelly alleged the three officials also conspired to extend that contact for two months as they disputed the bid scoring.

The dispute arose just as Health and Human Resources Secretary Michael Lewis resigned after requiring surgery for an undisclosed medical condition. Gov. Earl Ray Tomblin appointed Rocco Fucillo, a longtime department official and lawyer, to succeed Lewis in late June.

Fucillo has since asked his office’s inspector general to review the contract. The warrant document alleges at least one of the officials, Law, repeatedly pressed Fucillo about the contract before all three were placed on leave.

The document also quotes from emails between these officials and others in state government, and appears to reflect interviews with these other officials as well. Kelly cited these to attribute various motives to the alleged conspiracy.

Law, for instance, had allegedly expressed concerns to two other department officials that The Arnold Agency would have to lay off employees without the contract, the document said. Kelly alleged that Law told a third department official that he was concerned “about an out-of-state vendor receiving the contract in an election year.”

The documents allege that Perry and Taylor, both lawyers, took the bid scoring sheets and vendor proposals at one point, saying they wished to perform a legal review. The document said the purchasing process does not call for such a review, and that the two never questioned the contract’s evaluation committee, others at the department or the state Division of Purchasing on the topic.

That forced the earlier contract’s extension, Kelly alleged, but also prompted the department’s purchasing chief, Bryan Rosen, to weigh in.

“FYI, this may be headed for disaster,” Rosen told Deputy Secretary Warren Keefer in a May e-mail, the document said. “I won’t revise the technical scoring of the evaluation committed based on Jennifer’s review.”

The document said Rosen also warned Perry in a follow-up email that “this really has to stop or this procurement is going to be dead.” Responding to that May 8 email, Keefer wrote, “Worse than that, it might be perceived that the evaluation team’s scoring did not meet the desired outcome of our Communication group — thus they sought someone to overrule the score.”

According to the document, Perry and Taylor separately approached Tomblin’s senior aides about the contract. One of those aides, Chief of Staff Rob Alsop, agreed to ask Acting Administration Secretary Ross Taylor for a review, Kelly alleged. Taylor’s duties include state purchasing.

“After looking in to the matter, Secretary Taylor reported back that there were no issues with the procurement process and that the advertising contract should be awarded,” the warrant document said.

Fucillo has declined to comment on why the three were placed on leave, or even on the terms of that leave. He told lawmakers during a Tuesday interim meeting that he could not discuss the matter because it involved personnel issues as well as the threatened lawsuit.

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