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Whistleblower Is Anything Being Done? BY BRE’fT CAMPBELL AFTER A TRAVIS County jury upheld George Green’s accusation that the Department of Human Ser vices had retaliated against him for revealing unsafe and possibly illegal construction and contract practices, it seemed logical that the state would pursue some of Green’s charges. After all, if the allegations are true, contractors are ripping off Texas taxpayers to the tune of millions of dollars a year. “The construction industry or development industry in Texas looks at the state as an easy mark,” says Green. “And the reason is that, historically, we do not look at our responsibility as bureaucrats as managing hard assets. The taxpayets fund it if we fail to get contract compliance.” Furthermore, once it was determined that DHS had retaliated against Green, it seemed reasonable that the officials responsible for the retaliation.would be disciplined. The timing for reform of contracting policy and agency culture was perfect: The retaliation against Green took place under a Republican administration in Austin, and a new Governor, Attorney General, DHS chairman and director, and General Services director had all taken office since then. Unburdened by past involvement in shady contracts or retaliation, these officials could use Green’s case as a spur to clean up corruption and waste. It didn’t happen. Even though, over the past four years, Green has written \(and in half-dozen state officials [and the Observer reported on the case in “Killing the Messenger,” 7/12/91, and “Whistling While He Waits,” 6/3/94] only one state official appears to have taken his charges seriously. Green, who has followed those agencies assiduously since his firing, says he knows of no one at DHS who was disciplined for retaliating against him. \(The agency’s press office did not return Observer phone calls also says he never received a response from any of the state executive branch officials he contacted after their initial meetings. The attitude of the stateas evidenced by the hardball tactics used by the AG in prosecuting Greenhas been to attack the Brett Campbell is a former Observer editor now living in Eugene, Oregon. bearer of bad news, and then to deny or ignore the abuses he tried to reveal. One state official, however, did pay attention. “One of the jurors on the case wrote me a letter after they had rendered their judgment, and I called them back and we spoke about it at length on the phone,” says John Pouland. He chairs the state General Services Commission, the agency that oversees purchasing for state government and manages construction of many state buildings. Some of Green’s charges involved misor malfeasance on the part of General Services personnel. Pouland reviewed the files on the Green case, and found instances in which his agency had fallen short in managing state building projects instituted before he arrived at General Services two years ago. “Nothing of a criminal nature, but poor management and mismanagement,” he admitted. As a result, some employees were reassigned, others asked to leave, still others were scrutinized more closely by upper management. Pouland wouldn’t name names or go into more detail, but he did back up Green’s assertion that several state buildings were rip-offs. “His allegations about Winters [the DHS headquarters complex in Austin, in which Green says taxpayers received poor value] are correct,” Pouland says. “It’s the worst building in our inventory… it’s very poorly constructed.” Nor is Winters an aberration. According to Green, “The state of Texas has a target on its back, and every astute contractor and landlord knows that.” They’re able to target leases and contracts and say, ‘It’s a $2 million job, all we’ve got to do to get the bid is to allocate $1 million plus for it, and if we get caught we’ll probably be able to get a change order to cover the cost overrun.” Does Pouland think Texas has a target on its back? “I agree. A lot of contractors that did quality work wouldn’t deal with state because they felt they wouldn’t get its business. They thought the bids would go to a low bidder who’d use substandard labor, lots of change orders. Well, you get what you pay for.” Pouland said he has instituted some policy changes as a result of Green’s allegations, including reining in change orders, the practice in which contractors underestimate costs on a project, then charge high prices to modify the original proposal. Under Pouland’ s new policy, GSC \(which provides management services for some review any change orders above a specified percentage of the total project cost. Pouland has also made the agency’ s inspectors more independent, reporting to him and other high GSC officers instead of to the managers whose projects they’re evaluating. “The problem in this state is that we don’t do constructions, we just supervise them. But there are no checks and balances. The inspectors work with the project managers as partners. The benefit of that arrangement is that they work together, but the loss is they can cover each other. Our inspectors are inspecting our jobs, and that means if we’re screwing up, our guys can cover our guys. I think you can be partners without having to report to the same person. I’ve made the inspectors more independent; they’ve got direct access to me.” What about banning bidders with a history of abuses such as excessive change orders or faulty work? Pouland wants to do that, but warns that it will mean lawsuits. “When I was in the private sector, we almost automatically threw out the lowest bid on a project if it was way below the others, because you knew they were probably underbidding and would make up for it in the change order,” he explained. “Now, we operate on the premise that lowest isn’t necessarily best. We look at the institutional history, the percentage of change orders a contractor asks for. I look at that personally in some cases now. If we’re not happy with the job they’ve done, we’ve got to document that. But when we make a decision to award to someone other than low bidder, we’ve got to have something we can stand on in court.” Pouland is ready to defend his policy in court. “The law never said we have to take just the lowest bid, but the lowest and best bid. I have told [Gov. Richards] to be preparedwe’re going to test that theory. If we win the first one, then people realize it’s not in their best interest to sue, then maybe they’ll knock off the suits.” In fact, several contractors have already challenged GSC Continued on pg. 21 THE TEXAS OBSERVER 5