Whitehouse, Harris Press Pruitt on EPA Political Appointees Steering No-Bid Contract to GOP Firm

Washington, DC – Senators Sheldon Whitehouse (D-RI) and Kamala Harris (D-CA) asked Environmental Protection Agency (EPA) head Scott Pruitt to explain why political appointees apparently initiated a no-bid, federal contract with Definers Public Affairs, a company that shares leadership, staff, and an address with America Rising, a political action committee that funded a campaign to confirm Pruitt as EPA Administrator.

The Senators point to EPA documents and Senate investigators’ interviews with EPA staff that show it was President Trump’s EPA beachhead team that canceled the contract with the previous media-monitoring vendor, and that it was EPA’s public affairs team – many of them political appointees – that pointed career staff toward contracting with Definers.  The Senators also note that the EPA’s main justification for awarding the contract—that “Definers offers unique services”—appears to be based on information Definers itself provided to the EPA, and that a range of other vendors offer substantially similar services.  The EPA’s justification appears to be a pretext for avoiding competitive bidding for this contract, as well as the suggestion that career staff were told by political staff to hire Definers, it would appear that this contract may be a quid pro quo for America Rising’s support of Pruitt’s confirmation.  Such a quid pro quo would violate federal contracting rules.

These issues demand answers, the Senators write.

“You recently gave an interview in which you stated that you ‘care so much about taxpayer money,’” the Senators write.  “EPA’s decision to award a no-bid contract to a politically connected firm suggests precisely the opposite, and your slow and incomplete response to our inquiries in this matter further suggests that  you continue to waste taxpayer money and are not being ethically compliant based on your numerous questionable agency expenditures.” 

Following revelations about the Definers contract and questions from Whitehouse and Harris, EPA canceled the $120,000 contract in December. 

America Rising and its affiliates have a long record of providing political support to Pruitt and his work at the EPA.  Documents show America Rising, led by the same opposition research experts at Definers, has been combing EPA records for communications between EPA staff and the news media and Democratic members of Congress.  The group coordinated a campaign to ease Scott Pruitt’s confirmation as Administrator that included ads urging Senators to vote for his confirmation and a website, www.ConfirmPruitt.com (now defunct).  America Rising also runs a website called the Need to Know Network that provides favorable coverage to Pruitt’s work at the EPA.

Full text of the Senators’ letter is below.  A PDF copy is available here.

Dear Administrator Pruitt:

We again write to you regarding the Environmental Protection Agency’s decision to award a no-bid contract to Definers, a consulting firm that shares leadership staff, and office space with America Rising, a political action committee (PAC) which was active in supporting your confirmation as Environmental Protection Agency (EPA) Administrator.  This contract is deeply concerning because it suggests a quid pro quo and would seem to violate the law, as outlined below.

On December 19, 2017, we first wrote to you inquiring about this contract with Definers for media clipping services.  On April 27, 2018, EPA responded and your response included documents related to the now-cancelled Definers no-bid contract.  On May 11, 2018, EPA staff attempted to answer questions from our staff in a phone call regarding the documents provided in EPA’s April 27 response.  Despite these disclosures and discussions, key facts about this how this contract was awarded remain unknown.

I.  How was Definers identified as the contractor of choice?

EPA provided one email chain related to the Definers contract; the first of these emails is dated November 2, 2017.  While parts of these emails have been redacted, the first email in this chain mentions a “JOFOC” or Justification for Other than Full and Open Competition, indicating that EPA had already chosen a contractor.  A November 13, 2017 email in the chain identifies Definers as the contractor.

Government contracts are not awarded without prior discussion and thorough deliberation, so we find it hard to believe that the first email mention of Definers at EPA occurred after Definers had already been chosen.  “Definers” is a rarely used word, so it should be straightforward for your staff to obtain all emails in which Definers the company is mentioned.

During our May 11, 2018 phone call with EPA career staff, we were told that EPA’s contract with Bulletin Intelligence was cancelled in early 2017 at the direction of President Trump’s EPA beachhead team because it “wasn’t meeting their needs.”  EPA career staff further advised us that your public affairs team first “made [them] aware” of Definers and its media clipping services.  Career staff stated they were be unable to recall who on your team told them about Definers and what specific instructions they were given.

Documents provided (and not provided) by EPA and statements by career staff seem to indicate that the decision to hire Definers was driven by political appointees.  Given the fact that Definers shares executives and leadership with America Rising, which bankrolled a campaign supporting your confirmation as EPA Administrator, a decision to steer a contract outside the typical contracting process to Definers would seem to violate Subpart 3.101-1 of the Federal Acquisition Regulation (“The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships”) and Title 5 of the Code of Federal Regulations Section 2635.101(b)(8) (“Employees shall act impartially and not give preferential treatment to any private organization or individual”).

II. Does Definers offer unique services that would justify EPA’s decision to forego competitive bidding for this contract?

In our December 19 letter, we asked you to explain what “provision of the Federal Acquisition Regulation (FAR) authorized a no-bid contract for the type of services EPA procured from Definers.”  In EPA’s April 27 response, Liz Bowman, your former Associate Administrator for the Office of Public Affairs, attempted to justify the no-bid nature of the Definers contract by writing that “Definers offers unique services” and “[EPA] was not aware of any other company that provided or had available this feature of real-time coverage for specific events.”

Among the documents provided with EPA’s April 27 response is a JOFOC dated November 29, 2017 (Attachment II).  In this document, EPA lists the following “unique qualifications” that “require” the use of the only one responsible source exception to competitive bidding practices:

• Proprietary advanced search functions
• Standalone media clip database including perpetual retention so that information is always available regardless of email retention policies or other limitations of email platforms
• Ability to pre-load a customized Console with the issues, public figures, and news data relevant to customers, populated in real time
• Specially trained and experienced researchers to provide relevant and actionable analysis
• Digital and human analytics coverage throughout the day
• Media tags that are tailored to the customer’s areas of interests, which allow for quick sorting and tracking of customized data streams
• Delivered through a proprietary web interface, which allows for email distribution as well.

Additionally, the JOFOC states that “[l]eading providers Cision […], Bulletin Intelligence […], and Critical Mention […] do not provide the combined services sought by EPA’s Office of Public Affairs.” During the May 11 call between our staffs, EPA career staff indicated they conducted a search to see if other companies offered media clipping services similar to Definers’ services, particularly its claimed ability to provide clips in “near live-time,” but determined they did not.

Our staff subsequently spoke with a representative from Cision, who explained that Cision gives clients the option of receiving email alerts every hour containing the latest stories of interest.  Cision’s clients may also log into their “my coverage” portal at any time to see the latest stories of interest; the portal is updated in close to real time.  Cision’s representative confirmed that it offers all of the functionalities listed in the JOFOC as “unique” to Definers.

Another company allegedly researched by EPA staff, Bulletin Intelligence, also appears to offer “near live-time” capabilities.  According to its website, its dashboard provides links to “24/7 breaking news” of interest to its clients.^[1]  Bulletin Intelligence’s description of its services also seems to match most of the functionalities listed in the JOFOC as “unique” to Definers.

A third company allegedly researched by EPA staff, Critical Mention, claims that its clients can see coverage “one minute after it appears – more than 8 times faster than the industry standard” on an “all-in-one platform” that offers “real-time media monitoring.”^[2]  Its description of its services also seems to match most of the functionalities listed in the JOFOC as “unique” to Definers. 

Moreover, a simple internet search identified several other similar companies that offer the services that the JOFOC claimed to be “unique” to Definers.  These companies include Metro Monitor (“[r]eceive reports of your media coverage as it happens”^[3]) and Universal Information Services (“[r]eceive scheduled or near real-time e-mail notifications when your stories air”^[4]).

The JOFOC and the email chain suggest that EPA staff did little independent vetting of this contract, and instead relied upon Definers’ own representations about its services.  The JOFOC description of Definer’s “unique qualifications” appears to have been copied almost verbatim from Definers’ promotional materials.  It is replete with words such as “proprietary” and “customers” that one would not expect to see in a description written by EPA staff.  Under the section of the JOFOC titled “[o]ther facts supporting the use of other than full and open competition,” EPA staff wrote:

“Definers Corp. states that no other service gives their clients the high level and

comprehensive search functions that it offers through its customized Console.  Clients have the ability to tailor their tags and tailor who from their teams sees those tags. The storage and search functions of the Console are something no other clip service provides because they do not have the Definers proprietary Console.”

EPA staff also relied on Definers’ representations with respect to the reasonableness of the services’ cost.  The JOFOC states that “the C[ontracting] O[fficer] has determined the cost to be fair and reasonable based on information received from the contractor” (emphasis added).  An email dated November 13, 2017 further states that staff are “still waiting for a bit of information from Definers to complete the JOFOC” (emphasis added). 

The availability of similar services from multiple companies and the acceptance at face value by EPA contracting staff of representations made by Definers in order to complete the JOFOC lead us to believe that EPA’s proffered reasons for the no-bid contract with Definers were pretextual. 

As such, we renew our request for answers to questions 1, 3, 4, 7, 9, and 10 from our December 19, 2017 letter as they have yet to be fully answered.  While we appreciate EPA’s willingness to have staff speak directly, we respectfully request that all EPA staff with full knowledge of the genesis of the Definers contract be made available to speak with our offices.  We also renew our various requests for responsive documents.  If there are no additional documents responsive to our original letter, we request that the appropriate official at EPA confirm that to us in writing and describe what search parameters have been used to make that determination.

Based upon the documents already provided and our May 11, 2018 discussion with career staff, we also request responses to the following additional questions:  

1. Who on your team made career staff “aware” of Definers?
2. What was said to career staff in relation to Definers?  Were they directed to hire Definers?  If so, by whom? 
3. Who made the decision to hire Definers under a no-bid contract?  Please provide copies of any and all intra-agency communications relating to the decision not to use competitive bidding procedures for this contract.
4. Please explain how it is possible that the only emails we have been provided were written after Definers had already been chosen for the contract.  Do no other emails mentioning Definers exist?  If so, why were initial intra-agency discussions of this contract not memorialized in writing?  Did anyone instruct career staff not to email about Definers?  If other emails do exist, why have we not been provided them?
5. If it is your position that no one on your team instructed career staff to hire Definers, then what explains how the justification they provided for avoiding competitive bidding procedures does not appear to have any foundation in fact?

You recently gave an interview in which you stated that you “care so much about taxpayer money.”^[5]  EPA’s decision to award a no-bid contract to a politically connected firm suggests precisely the opposite, and your slow and incomplete response to our inquiries in this matter further suggests that  you continue to waste taxpayer money and are not being ethically compliant based on your numerous questionable agency expenditures.  So that we may get to the bottom of this matter, we request that you respond by June 29, 2018 to our renewed questions on this matter. 

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