State is grappling with minority pacts

The Baltimore Sun

The state Board of Public Works yesterday wrestled with two claims by aggrieved minority-owned businesses, postponing a $45 million airport shuttle-bus contract and approving a $9 million hospital construction project over the objections of advocates.

Arnold M. Jolivet, president of the Maryland Minority Contractors Association, failed to persuade the board to reject a state-funded contract with Baltimore-based Whiting Turner Contracting Co. to build new operating rooms for the University of Maryland Medical System. Jolivet said the UMMS practice of privately soliciting bidders for publicly funded work effectively excludes minority-owned businesses from competing for contracts and functions as a way for the nonprofit system to engage in "invidious and unlawful discriminatory practices in the selection of contractors."

Hospital officials denied the allegations, and the board voted in favor of the contract, though approval was contingent upon a commitment by UMMS to "open up" its procurement practices.

Earlier, the board deferred consideration of a contract for the operator of the shuttle buses that transport passengers at the Baltimore-Washington International Thurgood Marshall Airport to and from parking lots. The incumbent contractor, Cincinnati-based First Transit Inc., won the new bid with a proposal that would include 28 percent minority participation. But some minority business advocates said the state should be skeptical of the goal because First Transit fell short of minority business participation promised under the previous contract.

Comptroller Peter Franchot said he was pleased the board delayed approval for the $45 million shuttle bus contract and wants to know why the Maryland Aviation Administration last year authorized First Transit to reduce its minority participation goals from 30 percent to 13 percent.

"What confidence do we have that First Transit will achieve the 28 percent participation goal?" Franchot said.

Wayne Pennell, the aviation administration's deputy executive director for operations, said yesterday evening that First Transit fell short of its minority contracting goals because of a combination of reduced passenger volume and financial difficulties at the agency, which led the transportation department to change the terms of the contract.

He said concern about the reduced minority-business participation was a key reason the transportation department decided to pursue a new contract rather than extend the existing one.

Maryland Secretary of Transportation John D. Porcari promised to respond to the board's inquiries within 90 days. In the meantime, First Transit will continue to operate at the airport on a month-to-month basis.

Wayne Frazier, president of the Maryland-Washington Minority Contractors Association, called First Transit a "corporate criminal," claiming it frequently fails to meet minority participation goals. He said the right action would be for the state to prohibit the company from bidding on the contract under consideration because of its failure to meet the goal under the last one.

"That would send a huge message to all of them out there that are maybe doing the same thing that the agencies aren't really tracking," he said.

Neil F. Quinter, an attorney who represents the firm, said the company "wouldn't dignify with a response" Frazier's comments. He defended the company's record of working with minority subcontractors all over the country. "We believed that we were in compliance with the minority business enterprise goals under the contract," he said, adding that when their lack of compliance was brought to the company's attention, they went to the state "in good faith" to get a waiver.

The company expects to exceed the 28 percent participation goal in the new contract, he said.

O'Malley was in Washington yesterday, but Lt. Gov. Anthony G. Brown, filling in for him, persuaded the board to condition the $9 million hospital contract upon the medical system's participation in a state-managed work group designed to "open up" contracting practices at the University of Maryland Medical System. The system is not considered a state agency and therefore is not subject to all state procurement laws.

Franchot and Treasurer Nancy K. Kopp, the third member of the board, voted to accept Brown's proposal.

Rick E. Dunning, the medical system's vice president in charge of construction, acknowledged that UMMS privately reached out to about six contractors it believed were qualified for the assignment, rather than publicly canvassing for proposals, as state agencies do.

Jolivet said he knew of qualified minority firms with experience in complex medical projects that would have liked to bid on the contract. When he asked to see the university's request-for-proposal on the job, he was rebuffed, Jolivet said.

Jolivet is also suing UMMS in federal court, arguing that the medical system -- which was spun off from the state university system decades ago -- should be subject to state public records laws. In March, a judge issued an opinion that UMMS should be subject to public records laws, but it was not a final ruling. The university system has asked the court to fast-track the case to the U.S. Court of Appeals for the Fourth Circuit.

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