Smoke, Mirrors and the Jail Bluff 

Questions linger as City Council prepares to vote on the mayor's jail contract.

It’s do or die for the mayor’s new city jail. On Monday, City Council will decide whether to explore the plans further, or approve Mayor Dwight Jones’ selection of Tompkins Builders and S.B. Ballard Construction Co. to build a jail in the East End for $116.6 million.

But a lot more is at stake than bars and rebar: Jones, who doesn’t have a major project to his credit since taking office in 2009, needs council’s approval on Monday to have an agreement signed by early August, with the hope of beginning construction in December.

The project has been dogged in the last few weeks with persistent questions about the procurement process that led to the selection of Tompkins/Ballard, particularly in the last week. At least two City Councilmembers, Bruce Tyler and Marty Jewell, want to delay a vote to have more time to settle issues relating to minority participation, the jail’s location and issues concerning the fairness of the procurement process. There are serious issues that haven’t been adequately addressed, Tyler and Jewell say, and they have the public record in their favor.

Minority participation in the project – can T.K. Davis Construction, a small Richmond outfit, really handle 21 percent of the concrete casting contract, or is his company simply a pass through? The Richmond Free Press has been hammering the mayor for his selection of Tompkins/Ballard – pointing to Tompkins’ past record for minority participation, which is less than stellar – and there are multiple questions relating to the city’s request for proposals, and whether it followed its own very specific qualifying guidelines.

Much of this could be chalked up to political gamesmanship, but there is a compelling argument to be made that how the city handles the jail contract – its biggest public works project in decades – could impact future projects, and the quality of the proposals that come in. If, say, the construction contracting teams feel the process was unfair, would they really consider investing the time and money to bid on future projects? It cost the teams bidding on the jail project between $500,000 to $700,000, which is an enormous pay to play. The city has an obligation to treat them fairly.

This leads, of course, to the seemingly innocuous height restriction that the city imposed on the bidders in December. Tompkins/Ballard is building a taller jail than was prescribed in the request for proposals, and some people are rightly asking how that happened.

The height issue, first reported by Style Weekly on Thursday, has sparked last-minute jockeying between Councilman Bruce Tyler and Jones. In a nutshell, the city decided to negotiate exclusively with Tompkins/Ballard, even though their proposal went above the bluff of the eastern hill behind the jail site. The city clearly spelled out in its request for proposals that this wasn’t allowed, namely to preserve residents views of the city.

Repeated references in the city’s “Performance Criteria” for the project spell this out: “The new construction shall not achieve a final elevation higher than the highest grade of the hill side on the eastern portion of the property to allow the adjoining residential community views of the City of Richmond,” the criteria states. Not meeting the design requirements, the request for proposals instructs, would result in a proposal being “eliminated.” Tyler, who has reviewed all four proposals the city deemed as meeting qualifications, says that Tompkins/Ballard’s proposal is the only one that went above the bluff. City Council President Kathy Graziano, however, told the Richmond Times-Dispatch that the city informed her that two of the four proposals went above the height restriction.

The point, however, is that the height restriction dramatically changes the cost of the jail – by millions of dollars, according to one person familiar with the procurement process – and being allowed to exceed the elevation of the hill gave Tompkins/Ballard a major advantage that wasn’t afforded to the other bidders.

“What we are talking about is whether or not we can look at our public and say, one, our bidding process is fair,” Tyler says, pointing to the extended bluff. “We cannot do that right now because of this discrepancy.”

In the Richmond Times-Dispatch on Saturday, Tammy Hawley, press secretary to the mayor, says the city in essence eliminated the height requirement in an addendum to the performance criteria Feb. 4, wherein the city addressed questions from the bidders.

"The addendum effectively eliminates the prescriptive requirement and conflicting information prohibiting a building higher than the bluff, and clarified that a midrise design approach will be the qualifier," Hawley told the T-D.

Upon further inspection, however, the addendum doesn’t appear to specifically address the height restriction. (Also, sources tell Style that jail review committee made the teams that bid on the project later prove that their buildings were lower than the bluff.) The city’s response in the addendum simply addresses a typo in the performance criteria:

“Question 4: Please clarify the City’s desired number of stories for the facility. In the “Instructions to PPEA Proposers”, page 7, paragraph 1.3.3, “Design Intent”, paragraph F, subparagraph 1 states in part, ‘The size of the site and presence of the existing building that will be included in the long term development of the project require a low to mid-rise (6-8 feet) design approach’. Confirm the City intended to state ‘6 – 8 stories’. In Section B, Part I, on page B1-3, item 1.3, item 1 states ‘The size of the site and presence of the existing buildings development of the project require a low to mid-rise (5-6 stories) design approach.’”

The city answered the question with a single sentence: “Response: Remove reference (6-8 feet), change to read ‘Mid-rise design approach’.”

In a follow-up email Style, Hawley confirms that this is the reference that “effectively eliminates the prescriptive requirement” concerning the height of the building. “Yes, this is the correct reference and becomes the qualifier over the other ambiguous language that was in the RFP,” she says via email. In City Council’s work session addressing the jail contract July 18, there was no mention of the addendum when the city responded to Tyler’s questions about the height restriction. And it’s hard to see how simply stating that the jail design requires a “low to mid-rise design approach,” would override much more specific references to the elevation of the building and the height restriction in the city’s request for proposals.

While this seems like a lot of bickering over relatively minor details, the height issue is a critical one. It affects the overall cost of the jail significantly – allowing the project to be built in one phase, instead of multiple phases, and not having to relocate inmates. This is just one of many, however. The city states a clear preference that the proposers not use existing facilities in its design, yet the Tompkins/Ballard team incorporates the women’s facility in its proposal. One team still wants to know why the mayor suddenly decided that he wanted the new jail to be built on the existing jail site, even after accepting the unsolicited proposal to build the jail on the city’s South Side, off Commerce Road, in early 2010. That jail is in an industrial district that is largely dead, and the cost is nearly identical to the Tompkins/Ballard proposal in the East End.

In an unusual move, Jones sent out an email blast to citizens on Friday, with the header: “No Time for More Delays.” He implores citizens to contact their council person, and urge approval of his selection of Tompkins Builders and S.B. Ballard Construction Co. to build a new city jail, for $116.6 million. Forget for a moment the political impotency of correctional facilities, and consider the message itself. Jones writes: “The process we've undertaken to develop a ‘state of the art’ justice facility has been legal, professional, fair, comprehensive and honest. However, there are those using smoke and mirrors looking for ways to raise questions about the process. It's wrong for anyone to try to bully the City into making the recommendation they want rather than the recommendation that the unbiased process yielded.”

It might be easy to label Jewell and Tyler with having political motivations, but it doesn’t mean they don’t deserve some answers. City Auditor Umesh Dalal has already recommended that City Council engage outside legal advice to address some apparent discrepancies in the procurement process. The mayor will blame City Council if it asks for more time, and the price guarantee the Tompkins team gave to the city expires in mid-September. But the mayor certainly took his time with this. The city’s first RFP for the jail went out in December of 2009; 18 months later, a contractor was selected. City Council was given a month and a half.

Jones, ever the measured, practical mayor who hates to rush anything may get what he wants come Monday, but it may do little to quiet his critics. To date only city staff, the auditor and City Council members have been granted access to review the proposals. But once the contract is awarded, all the bids will be open for public inspection.

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