شھّ Inclusion Continued

Attorney Eric Vickers Continues the Quest for Answers About Inclusion On St. Louis Art Museum Expansion

July 14, 2010, 2:23pm - The picture remains the same. 14 White workers and one black (not pictured). The non-inclusion continues.

Eric E. Vickers
Attorney at Law

July 22, 2010

Via email

To: Mr. Jerome Sincoff, Honorary Trustee
Chair, Expansion Oversight Committee
St. Louis Art Museum

Dear Mr. Sincoff:
This is in follow-up to the meeting held last Thursday at the St. Louis Art Museum that included you, Museum Counsel David Linenbroker, and via telephone, Art Museum Board Member Attorney Steven Cousins.

First, we thank you again for the opportunity to address in a constructive and candid way the issues and concerns expressed about the apparent lack of minority and women inclusion on the $88 million Art Museum Expansion Project, which have been voiced to the Museum through various means, including invoking the Missouri Sunshine laws to seek records and documents from the City of St. Louis about the Project.

Second, we thank the Art Museum for finally coming forth with its list of minority and women firms, who are purported to constitute the Art Museum's compliance with the City of St. Louis' law and policy establishing 25% minority business enterprise (MBE) and 5% women business enterprise (WBE) goals, which list we first requested at the initial meeting with the Art Museum in early May.

Fundamental Flaws in Tarlton/Pepper/KAI MBE/WBE Compliance

A. The 25.95% Minority Inclusion the Art Museum's General Contractor Claims is Completely False.

While the MBE/WBE Tracking Summary represents that the Art Museum has achieved "25.95%" MBE participation and "38.6%" WBE participation for the $87,892,072.00 project, this is an incorrect method of counting MBE and WBE inclusion. It is in fact both incorrect and a misrepresentation of the inclusion because the general contractor - Tarlton and KAI - are counting their general contract percentages towards the 25/5% subcontract goals, which is impermissible under the city's law (and most federal laws). Both Tarlton and KAI know full well from their experience with the City's law that they are not allowed to count their general contractor percentage towards compliance with the 25/5% goals, yet they present such numbers to the Art Museum.

This is a well settled point of law and policy of not counting the general contractor's numbers towards the 25/5% goal, and it was specifically designed to prevent the kind of artificial inflation of the MBE and WBE numbers apparently taking place now on the Art Museum project.

Consequently, if KAI's general contracting percentage (10%) is deducted from the Tracking Summary's representation of 25.95% MBE, then the actual goal achieved by the Art Museum is 15.95% (i.e. $14,015,373.00 out of $87,892,072.00); and the actual WBE goal met - when Tarlton's general contracting 30% is deducted - is 6.86% ($6,032,359.00).

This misrepresentation of the true number for inclusion by the Art Museum's general contracting team is consistent with other misrepresentations made by them.

B. The General Contracting Team Misrepresented that Only MBE and WBE Firms Recognized by the City Would be Recognized by the Art Museum as Bona Fide Minority and Women Businesses for the Expansion Project.

The MBE/WBE Tracking Summary lists minority and women firms that have not either been certified by the City itself or been recognized by the City, under its laws and policies, as firms legitimately certified as minority and women businesses by other agencies. To put it another way, the Art Museum is presently counting towards its MBE and WBE goals firms that the City has or might deem illegitimate

The certification process is critical. When the question was specifically asked of the KAI representative at the initial May meeting whether only those firms whose MBE and WBE certifications were recognized by the City would be counted by the Art Museum, his answer was decidedly in the affirmative. Thus, we were led to believe that there would be no argument about the legitimacy of the MBE and WBE firms utilized on the Art Museum Project because the soundness of the City's certification process is well known and recognized.

Consequently, both the Art Museum 's representation of 15.95% MBE inclusion and 6.86% WBE inclusion have to be substantially reduced to deduct out the firms not recognized by the City as legitimate minority and women businesses.

C. Lack of Verification of MBE and WBE Inclusion

While the MBE/WBE Tracking Summary provided by the general contractor is a colorful and impressive looking spreadsheet that lists contracts supposedly held by about thirty minority firms, in actuality, it is virtually a farce due to the lack of verification of the contracts.

You will recall that I brought to the meeting last Thursday a stack of documents that we obtained from the City under the Sunshine Law concerning the Art Museum Project. The contents of the documents are too copious to discuss now, but suffice it to say that emails from the City of St. Louis to the Art Museum just this past June show that the City has expressed significant questions about the following contracts listed on the MBE/WBE Tracking Summary:

1. CCR, Inc. (Sam Washington)......$81,000 contract
2. ICR (Malcolm Briggs)................$974, 262 contract
3. BE Scaife ..........................$564,947 contract
4. J. Williams Mechanical, Inc.........$417,761 contract
5. Senco ..............................$71, 350 contract
6. Legacy Interiors, LLC.................. $225,000 contract
7. Riley Ready Mix - Series of Invoices rather than contract

In my review of the documents, there are clearly a lot of shenanigans at work on the Art Museum Project. For instance, in one of the contract documents I read, the MBE firm clearly states that his workforce will be directed by the white firm with whom he is subcontracting - a clear violation of the City's inclusion laws, as the minority must be in control of his own workforce.

The structure of the Art Museum project is especially ripe for shenanigans because none of the minority firms are subcontractors; they are all sub-subcontractors. Experience teaches that in this scenario minority firms - and minority inclusion numbers - are more subject to being manipulated. For example, in the documents is an email from the City notifying the Art Museum that, although it had listed a certain minority firm for the project, that minority firm confirmed that it had never been contacted about and had no knowledge whatsoever of being included on the Art Museum project. In other words, it was being falsely represented that he was included in the project. This is why a verification and monitoring process is essential for true minority inclusion.

This verification and monitoring has clearly not been the case with the Art Museum Project. The numbers provided by the general contractor are at best bogus and, frankly, an insult to the good intentions of the Art Museum.

I won't get into or even entertain an argument about whether the Art Museum is bound to the City's inclusion laws, because if the Art Museum will not recognize and abide by the City's laws, then the only conclusion that can be drawn is that the Art Museum finds its general contractor's current misrepresentation of its MBE/WBE inclusion acceptable.

Accordingly, what must first be directed by the Art Museum is that the general contractor strictly follow the City's law respecting minority and women inclusion - i.e. the Mayor's Executive Order. As far as we are concerned, unless this first point is agreed to, then there is no basis to believe the Art Museum's inclusion on this project is credible. And no point in discussing any other issues, such as workforce diversity.

Because time is of the essence, we need a response soon from the Art Museum on this.

Sincerely yours,

Eric E. Vickers

cc: Dr. Donald Suggs
Steven Cousins, Esq.
Home