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“I shouldn’t swear,” Council Chair Phil Mendelson said exasperatedly during a DCPS hearing Friday, “but what kind of B.S. is this? I mean, really?”
Only the politician known by the moniker “the nitpicker” could get so heated about the decidedly dull issue of contracting, which was the subject of the special public roundtable convened by the chairperson last week. Look below the mind-numbingly technical surface of these issues, however, and you can see some good reasons the normally reserved Mendelson spent much of the hearing in high dudgeon.
Mendelson’s aggravation stemmed from his recent discovery that D.C. Public Schools officials have been skirting the Council’s review process for large contracts for at least the past few years. D.C. agencies are supposed to submit any deal valued at $1 million or more to the Council for approval before executing it (a process that is generally a formality for all but the most politically sensitive subjects), and it seems DCPS has failed to do so in something like 13 separate instances since January 2021, according to information the school system provided to Mendelson. That amounts to roughly $113 million in spending where lawmakers never exercised any oversight at all, or DCPS already started awarding work to companies before sending contracts to the Council.
“As someone who used to engage in the procurement process at DCPS, I know that sometimes things can happen,” said At-Large Councilmember Christina Henderson. “But for the volume of contracts that are being submitted retroactively, I think something else is going on here.”
DCPS Chancellor Lewis Ferebee called these errors “unacceptable” and “troubling,” and pledged an internal investigation of the school system’s procurement practices. But this sort of tug-of-war between the executive and legislative branches isn’t exactly uncommon; Ward 4 Councilmember Janeese Lewis George noted in a letter to her colleagues earlier this month that two agencies under her committee’s purview have embraced similar tactics, calling “the executive’s indifference to matters of basic operational planning” a “longstanding problem” within District government.
Yet the content of some of the contracts DCPS withheld is what so perturbed Mendelson, taking this matter beyond a typical Wilson Building power struggle.
Two of the contracts, worth more than $42 million combined, are for companies providing food services for DCPS: SodexoMagic and D.C. Central Kitchen. DCPS parents and D.C. politicos will remember that these vendors took over in 2016 following a minor scandal involving school meals deals—the school system’s previous vendor suddenly backed out of its deal with the city in the wake of a $19 million settlement of a whistleblower’s lawsuit.
Lawmakers felt forced to agree to a deal with SodexoMagic, in particular, in order to avoid a gap in meal service for more than 100 public schools, even though they harbored concerns about the company’s history. The massive firm Sodexo, which partnered with Magic Food Provisions to form SodexoMagic, has a rocky history in this space after agreeing to a $20 million settlement in 2010 over claims it overcharged 20 New York school districts for meal services. D.C. Auditor Kathy Patterson delivered a report in 2016 recommending that DCPS bring its food services in-house to avoid these sorts of problems going forward, but the current arrangement has persisted largely unchanged since then.
Parents have since raised a variety of complaints about the quality of SodexoMagic meals, with some arguing that meals served at schools east of the Anacostia River are “unidentifiable.” Mendelson drove this particular point home Friday, bringing three different SodexoMagic meals to the hearing that he deemed a mix of “unappetizing” and “inedible.”
All of this is to say that Mendelson and other lawmakers would have sorely liked the chance to weigh in on these contracts before DCPS renewed them. Kids are now stuck with SodexoMagic food through at least July.
“It does not feel like the Council’s contract approval and oversight authority is being respected here,” Mendelson said.
Ferebee chalked all of this up to some confusion by DCPS staffers, not any malicious intent. The school system was set to re-bid these meal contracts at the end of 2020 before they expired in June 2022. The pandemic delayed that process, so DCPS chose to give those vendors another year of work, through June of 2023. Officials are gearing up to award new contracts sometime in the next few months, and had planned to send over the paperwork for the one-year extension to the Council beforehand, but some bureaucratic missteps delayed that process until mid-December, Ferebee said.
The chancellor said some DCPS employees mistakenly believed that a pandemic-inspired waiver from federal procurement requirements allowed them to renew school meals contracts unilaterally. They only later realized that this waiver did not exempt them from Council review. He blamed other strains of the pandemic as well, adding that DCPS has seen a good bit of turnover in its procurement division. In response to questions from Mendelson, Ferebee also admitted that the school system’s lawyers don’t review every contract before they’re executed, which could also contribute to these issues.
“We understand the severity and the significance of what you’ve raised,” Ferebee said, offering an apology on behalf of DCPS. “We did not have proper procedures to be in compliance with the law.”
Mendelson urged Ferebee to consider disciplinary measures for any employees that remain in the procurement department who worked on these contracts (which is about all the Council can do in a situation like this). And he expressed a good bit of skepticism that this is a problem that simply stems from a few errant employees or some sort of innocent mistake, noting that the Council has received just eight DCPS contracts valued at more than $1 million to review since 2019. Other D.C. agencies sent more than 1,586 deals over the same time period.
“The other agencies managed to send 1,500 contracts to us, but no, you weren’t able to send contracts to us,” Mendelson said. “What’s going on here?”
Mendelson’s skepticism is well earned, considering the complaints about Council review that have emanated from Mayor Muriel Bowser’s administration in the past. Loose Lips noted with interest that Tommy Wells, Bowser’s new top Council lobbyist and a former agency head and councilmember, wasn’t shy about sharing that view on Twitter when WAMU/DCist reporter Martin Austermuhle posted the notice of Mendelson’s hearing: “In my experience, it invites political mischief from losing bidders,” Wells wrote of the oversight requirement.
There’s plenty of evidence to lend credence to that argument—witness the messy back-room dealings over the city’s massive Medicaid contracts. LL would note, however, that many of the deals at issue here were sole-sourced renewals of existing contracts, so it’s not as if DCPS was avoiding some public fight among competitors by sidestepping the Council. It simply got to keep doing business with its preferred vendors without facing inconvenient questions about, say, the quality of school salads.
The Council only has a limited amount of power to force Bowser’s deputies to change their ways, showcasing just how tricky it can be to require the administration to do something it doesn’t want to do. Mendelson is engaged in a similar battle with Ferebee over the chancellor’s failure to follow provisions of a newly passed law governing school budgeting.
The contracting kerfuffle comes as the Council is busy considering a separate bill to remove DCPS’ independent procurement authority in favor of letting the city’s centralized Office of Contracting and Procurement handle things. That must seem like a tempting option for lawmakers if these “missteps” persist.
“While I understand the concerns raised today are very troubling…I do not want to lose our ability to be very nimble and agile and respond to critical needs,” Ferebee said, reading the writing on the wall. “My hope is that the Council will reconsider that move, because we believe, ultimately, that could compromise the resources, the goods and services that schools need to provide services to students or families.”