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The Fix Is In 

At least that's what Janet Campbell claimed about construction bids at UCSF, where she soon found herself out of a job

Wednesday, Feb 26 2003
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The California Attorney General's Office in 2001 handed Campbell's allegations off to the U.S. Attorney's Office in San Francisco, since they seemed to be national in scope. A state investigator who pored over Campbell's paperwork for several years said her charges "stretched further [across the country] than we had the resources to look at."

But federal prosecutors declined to take up the case a second time, saying that "it failed to show anti-trust violations." (Campbell says her case is not about federal antitrust issues, which would involve collusion between materials suppliers; her charges concern public contract fraud covered by state law.) A spokesman for state Auditor Elaine Howle refuses to confirm or deny that Howle's office is looking into Campbell's allegations. But Campbell says she supplied Howle's investigators with UCSF documents as recently as last June and that "the investigation is not dead." In addition, the FBI recently reinterviewed Campbell, apparently as part of its broad probe of the nuclear labs.

Her wrongful-termination suit, however, has foundered. After a federal judge ruled in 2000 that her case was not a federal matter, it was remanded to San Francisco Superior Court. Campbell got a new attorney, Martin F. Jennings, who's working on a contingency basis. (Campbell lives hand-to-mouth doing small architectural jobs.) Jennings appealed this month to the California Supreme Court after a state appellate court ruled that Campbell can't sue UC because she "did not exhaust her administrative remedies." The fatal Catch-22 occurred because Campbell filed her grievance under what turned out to be the wrong university personnel policy before she filed her whistle-blower suit; therefore, lower courts have ruled, she is not entitled to protections in state law for whistle-blowers.


The library of Campbell's sunlit apartment near Golden Gate Park is stuffed with boxes full of UCSF memoranda, specifications, contracts, and telephone logs: potential evidence of wrongdoing that Campbell often shares with law enforcement agencies and regularly combs through in preparation for her day in court.

But it's unlikely that her mountain of paper will ever see the light of a courtroom if the California Supreme Court rules against her. Although Campbell's suit does not name Tremco, it is clear from her documentation and from FBI agent Graham's deposition that she's targeting the Ohio firm. (The bulk of her court filings relates to whether or not she exhausted her administrative remedies, and she says Tremco is to be named when and if her lawsuit is allowed to proceed.) Tremco spokesman Carl Zeitz says Campbell's claims about his company "have no merit."

The writing of a highly technical specification favoring the products of a single manufacturer is not as easy as scrawling, "Use Tremco product here," or something to that effect. The state Legislature, recognizing that proprietary specs are a problem in public contracting, wrote into law that brand names may only be used in building specifications when there are "no known equals." And even then, descriptive details must be written in such a way that competition to supply the product is not limited by unreasonable technical restrictions.

For example, Campbell says she was ordered to write a series of specs that included such highly specific items as "TREMCO Burmastic [a roof glue] or approved equal." Since Tremco reps at UCSF helped write the specifications, the requirements for becoming an "approved equal" often meant that no other materials could qualify.

Campbell kept meticulous files on her allegations. On Aug. 18, 1992, for instance, she protested in a memo that her supervisors would only discuss creating specs that eliminated all but Tremco products from consideration. In early 1996, Campbell herself wrote specs that favored Tremco for roofing work at UCSF's Woods Building and Buchanan Dental Clinic Building. In February 1996, Campbell e-mailed her boss, Gary Nelson, that these specifications were "written by Tremco to exclude all other manufacturers." Nelson e-mailed her back not to change the criteria.

Even a layman can see that these specs bear a remarkable similarity to those suggested by Tremco's internal guidelines for spec writing. For instance, both the UCSF documents and the Tremco rules say that roofing-material suppliers must have been in existence more than five years; must possess a certain net worth; and must own the factories in which the materials are manufactured. These are onerous restrictions that automatically eliminate many small- and medium-size roofing suppliers. According to Midwest Roofer, the use of Tremco guidelines in spec writing usually results in "literally pages of specification requirements that verge on the ludicrous because they are so blatant in their effort to eliminate competition."

After acknowledging that "We as a company are sometimes accused of writing tight specifications designed to eliminate competition," the Tremco guidelines advise the firm's sale force to get chummy with business managers and maintenance superintendents at public school districts. Convince them to let you write the specs, the guidelines urge, and then "write items into the specs which our competition does not have."

Once the competition has been squeezed out, the sole-source contractor can jack up his prices. The Dayton Daily News concluded that in Ohio, Tremco was able to charge substantially more for proprietary-spec jobs than for those where it had to bid competitively. Campbell obtained a comparison between Tremco products in use at UCSF projects and equivalent products of a competitor, Henry Co. The chart showed Tremco was charging two and three times Henry's price for comparable materials.

In April 1997, Campbell wrote a memo to her boss about proprietary specs for a roof at the UCSF dental school. She noted that the building manager had ordered the use of Tremco boilerplate specs. She said that Andrew Smith, the Tremco sales rep for UCSF, "was [improperly] paid [by UCSF] to do the specs." She also claimed that "safeguards appear to have been deleted ... [the safeguards are] necessary for Code Requirements, for accurate and lower bidding, and to be able to avoid change orders [i.e., cost overruns] and provide constructibility." She also listed 50 specs that were unnecessarily restrictive and costly.

About The Author

Peter Byrne

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