E.D. Auditor Queries Contract Award to Ex-Agency Official

By Alina Tugend & James Hertling — January 22, 1986 6 min read

An Education Department contract that could bring a firm headed by the former chief of the agency’s office for civil rights as much as $250,000 annually over the next three years may be unnecessary, contrary to Congressional intent, and ''politically tainted,” an internal department memorandum charges.

The contract—to provide technical assistance to state and local agencies on procedures for complying with the Education for All Handicapped Children Act of1975, P.L. 94-142—has been requested by the department’s office of special education and rehabilitative services. Its recipient would be Martin H. Gerry, now a Washington lawyer and head of the Fund for Equal Access to Society, a nonprofit consulting firm.

Mr. Gerry also serves as counsel to the House Wednesday Group, a coalition of moderate House Republicans. He was director of the civil-rights office in the former Department of Health, Education, and Welfare during the Ford Administration.

The concerns expressed in the memorandum—and voiced last week by many in the special-education community—center not on Mr. Gerry’s ability to perform the work but on whether or not the contract itself is needed and represents a proper use of department funds.

In the Nov. 22 memo, obtained by Education Week, a department auditor who reviewed the matter told his branch chief that the contract “as presently conceptualized ... is tantamount to giving General Dynamics a contract to defend America, with support from the Army, Navy, Air Force, and Marines.”

The department’s inspector general is reviewing the proposed contract, Mr. Gerry and others said.

‘Policies and Procedures’

According to department officials, the numerous deficiencies found in 1984-86 special-education plans submitted by the states justify the assistance on “policies and procedures” for compliance that the contract would finance.

Critics claim, however, that the necessary technical assistance could be provided by the six federally funded “regional resource centers,” whose total budget was increased this year by the Congress from $6 million to $6.3 million.

But most of the additional $300,000 in appropriations is now earmarked for the proposed contract to Mr. Gerry and his consulting firm, not the regional centers.

The Fund for Equal Access to Society, which specializes in education policy for the handicapped, has been awarded almost $700,000 in grants and contracts from OSERS since 1979-all before the appointment of Madeleine C. Will as the office’s director. Ms. Will is a personal friend of Mr. Gerry.

Mr. Gerry said the regional resource centers currently do not have the capability to perform the necessary work.

“I don’t say they couldn’t develop the capability,” he added. “The point is to train them.”

Will’s Office Comments

A spokesman for Ms. Will, Joan Standlee, said there is nothing improper about the contract, which she said is undergoing a normal internal review.

Ms. Standlee, who is the deputy assistant secretary of OSERB, said the department’s office of general counsel has determined that the contract award would be legal. And, she added, the directors of the regional resource centers, in a joint letter, endorsed Mr. Gerry’s receipt of the contract.

“Whenever something new and different is proposed, people raise questions,” she said.

Several center directors noted, however, that they had endorsed the project before discovering that the money was coming out of funds earmarked for their centers.

Utah Center

The center at Utah State University, which provides technical assistance to 10 Rocky Mountain states and the federal Bureau of Indian Affairs, last year was assigned responsibility for assisting other centers on policies and procedures—the same service Mr. Gerry would provide under the proposed contract.

The Utah center was not allocated any additional money for handling the new assignment, according to Glenn Latham, its director.

“We’ve worked extensively with the states on policies and procedures,” Mr. Latham said. Giving the contract to Mr. Gerry, he said, “is a direct slap in the face.”

But according to L. Michael Herrell, director of policy and planning at OSERS, the Utah center acts as a “repository” for information on the issue and does not necessarily provide active technical assistance to the states.

“We’re not asking the [Utah) R.R.C. to go out to all 50 states and work with them,” Mr. Herrell said. “The contractors would work with each state.”

Side-by-Side Comparison

The internal memorandum gives a side-by-side comparison of the tasks Mr. Gerry’s proposal offers to perform and the “statement of work outline” provided by the Education Department to the regional centers.

“The comparison reveals that the R.R.C. processes are remarkably similar to those specified in the [Gerry I contract),” the memo states.

The memorandum was written by Kenneth Barberi, a procurement analyst in the department’s grants and contracts service, and addressed to Jacob C. Maimone, a senior contracting official.

“The specific issue or topic to which those processes apply is immaterial,” Mr. Barberi writes. ‘The point is, the [Gerry contract) calls for processes that are familiar to R .R .C. operations.”

There are indications, the memo adds, that the contract has “compromised governmental regulations and is politically tainted.”

“Finally,” it concludes, “the prospective contractor is not an R.R.C. and an award would contradict Congressional intent.”

Legislative Background

According to a Senate report accompanying P.L. 98-199, 1983 I amendments to the Education of the Handicapped Act, subcontracting I for alternative sources of expertise “will be limited to those situations where it is either more cost-beneficial than the Regional Resource Centers providing the services themselves, or clearly necessary.”

The language was included in the report as part of a bargain struck between members of the Senate Labor and Human Resources Committee, according to Christine Lord, an aide to Senator Orrin G. Hatch, Republican of Utah and chairman of the committee.

In 1981, the budget for the centers was slashed from $7.6 million to $2.8 million. But after Senator Hatch lobbied vigorously against the cut, the Congress allocated an additional $2.5 million for the centers that year.

In exchange for the additional appropriation, Senator Hatch agreed to include the report language.

“We have documentation that shows that the subcontracting doesn’t accomplish either of the objectives” of providing additional expertise or cost-effectiveness, Ms. Lord said. “We’re asking why the contract is necessary. We’re letting our feelings be known to the Education Department. Now the ball’s in their court.”

Mr. Gerry said he was not aware that the money for the contract was coming from the R.R.C. funding. He added that he believed the source of the funding, rather than duplication of efforts, was at the heart of the controversy.

“I don’t think the R.R.C.'S started the flap to kill the contract,” he said. “1 think they started it to protect their money.”

But, given the purpose of the proposed contract, it is “not unreasonable,” he said, to take the money from the centers.

William Schipper, executive director of the National Association of State Directors of Special Education, called Mr. Gerry “a qualified person” and expressed approval of the project’s design.

“The dilemma comes over the process of funding,” Mr. Schipper said. “We had no idea it would be taken out of R.R.C. money.”

A version of this article appeared in the January 22, 1986 edition of Education Week as E.D. Auditor Queries Contract Award to Ex-Agency Official