How the McDonnell Administration revived a dead road

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[Editor’s Note: This article was published originally on November 3 in the Bacon’s Rebellion blog and has been updated slightly for publication in C-VILLE. The blog covers a broad range of public policy issues such as transportation, land use, education, health care, economic development, the state budget and the wealth gap. Reporting and writing about transportation and land use issues, including this article, is sponsored by the Piedmont Environmental Council, an organization that has opposed the construction of the Charlottesville Bypass.]

On July 20 James Utterback, the Culpeper District administrator for the Virginia Department of Transportation, had the job of briefing the Commonwealth Transportation Board about the controversial Charlottesville Bypass. Flashing PowerPoint slides on an overhead screen, he walked board members through the complexities of a project that had languished on the books for most of 20 years until the McDonnell administration had assigned it a top priority.

Governor Bob McDonnell (pictured) and his transportation team deemed the Charlottesville Bypass a top transportation priority for the economic vitality of the Route 29 corridor.

Utterback summarized the long, tortured history of the project. He described how the six-mile bypass would fit into the state’s long-range plans for U.S. 29 as a major highway for the movement of freight. He delved into a chart showing that the project would require $197.4 million to complete, including $118 million for construction plus millions for right-of-way acquisition and engineering, bringing the total cost to $244 million. And he displayed a rendering of the U.S. 29 corridor north of Charlottesville in which the bypass tied into U.S. 29 and U.S. 250 with interchange ramps.

After a lengthy public hearing during which dozens of Charlottesville residents and even a few from Lynchburg had driven to Richmond to let the board know what they thought, the CTB overwhelmingly approved the project.

As it turns out, there were some very important things that Utterback did not mention in his scripted presentation. He did not tell the CTB, for instance, that central office engineers inside the Virginia Department of Transportation thought that construction could cost $100 million or more than the official estimate. He neglected to say that VDOT engineers were considering significant changes to the highway design to bring the cost down. Finally, he failed to mention that VDOT would not build the project using a “design-bid-build” process, doing the final design in-house as was customary, but as a “design-build,” which meant contracting out the final design to the winning construction team.

In other words, the McDonnell administration omitted highly germane information––that the design and cost estimates of the project were uncertain and in flux––when it asked the CTB to approve the $197 million allocation.

Would it have changed the outcome if VDOT had told the complete story about the cost and design uncertainties? One can only speculate. But it certainly would have strengthened the case of the bypass skeptics. At the very least, asks Dennis Rooker, an Albemarle County supervisor who played a leading role in opposing the bypass, “Wouldn’t it have been more honest to go to the CTB and say, ‘Here are our internal cost estimates, and we’re going to try to bring it in at a lower cost?’”

James E. Rich, Culpeper district representative to the CTB, had even stronger words. “Deliberately providing incomplete information would prevent the board from fulfilling its statutory responsibilities to the commonwealth and to taxpayers.” If the omissions were shown to be deliberate, he said, “there should be consequences.”

VDOT’s internal discussions were laid bare in documents obtained through a Freedom of Information Act request filed by the Charlottesville Albemarle Transportation Coalition, a self-described “local citizens group.” The organization works closely with, but is not formally affiliated with, the Piedmont Environmental Council and the Southern Environmental Law Center, which have actively opposed the bypass. The treasure trove of e-mails and other documents sheds light on project uncertainties and risks that Governor Bob McDonnell’s transportation team did not discuss publicly until after the project was a done deal.

In the early stages of compiling this article, this reporter submitted a list of detailed questions to VDOT seeking to clarify or confirm points arising from the documents and to solicit any additional information that would place the department’s actions in context. Lou Hatter, public affairs manager for the Culpeper district, replied that Commissioner Gregory A. Whirley had already addressed those questions when he spoke about the Charlottesville Bypass at the Commonwealth Transportation Board meeting on September 21 and when this reporter interviewed him shortly afterwards. Said Hatter: “The information Mr. Whirley provided stands as the Department’s response to your questions.”

Shortly before publication, this reporter submitted relevant passages of this article to show the case made in the article and the documentation behind it, offering VDOT one more chance to respond. Hatter declined to comment.

At various times and places, Whirley and Transportation Secretary Sean Connaughton have expressed at least three reasons why, despite the bypass’ design challenges, they think VDOT can bring in the project on budget: (1) their conviction that the original highway design can be simplified without greatly sacrificing functionality; (2) their hope that a private firm building the project under a design-build contract might find some creative design trick that VDOT engineers have overlooked; and (3) the fact that construction bids have been coming in significantly below cost estimate––17 percent below estimates in calendar 2010.

But the first two of those assumptions were not laid bare to the CTB or other government bodies when VDOT sought their approval. Information came dribbling out over subsequent months, mostly in response to the release of FOIA documents. The lack of openness on the part of McDonnell administration does not augur well for transparency in future transportation expenditures. The Charlottesville bypass is only one of several complex mega-projects VDOT plans to build, including the Norfolk-Portsmouth mid-town tunnel, the U.S. 460 upgrade, Interstate 95 HOT lanes and the Coalfield Expressway, or to study, such as a proposed north-south highway connector in Northern Virginia. These projects often entail complex trade-offs and extensive negotiation with public-private partnerships involving giant corporate consortia. Literally billions of state dollars are at stake.

A Project Reborn

Last year, the Charlottesville Bypass was looking like road kill. VDOT had no money to build the highway, which had been designed to circumvent a congested, stoplight-laden stretch north of Charlottesville, and even if it had, the project would have had to run a gauntlet of approvals: the regional Metropolitan Planning Organization, which was on the record against the project; the Albemarle County Board of Supervisors, whose O.K. was needed to reverse the MPO decision; and the Commonwealth Transportation Board, which had the job of allocating scarce funds between competing projects around the state. Should those approvals not be forthcoming, rights of way acquired in 1992 would begin to reach the 20-year limit at which point VDOT would have to sell it.

But the bypass got a new lease on life in February this year when the General Assembly approved legislation that would accelerate the sale of $3 billion in previously approved state bonds and would issue another $1 billion in federally backed bonds. At last, Governor Bob McDonnell had the money to “get Virginia moving again.”

One of the governor’s priorities was the Charlottesville Bypass. Business and civic leaders in Danville and Lynchburg regarded U.S. 29, already designated a federal highway and a “corridor of statewide significance,” as a transportation lifeline for their manufacturing-based economies. They wanted badly to see it built.

U.S. 29 is a road that “functions in place of an interstate,” says Sen. Steve Newman, R-Forest, who represents the Lynchburg area in the General Assembly. Two decades ago, he says, Danville, Lynchburg, Charlottesville, Culpeper and Warrenton all agreed to build bypasses to keep traffic flowing freely along the highway. “Everyone kept their word except for Charlottesville.”

Many citizens in Charlottesville and Albemarle County opposed the bypass, first on the grounds that it was a Band-Aid that would not reduce congestion and, second, that it would divert funds from projects that could make a difference. An alternative, the Places29 plan, called for a multi-faceted approach: making spot improvements to U.S. 29, zoning for pedestrian-friendly development, imposing tighter access-management controls to restrict local traffic from using the artery, and building parallel roads to provide local travelers alternative routes. But downstate communities were not impressed. Says Newman: “A small group of environmentalists and a few elites have decided to stop the project, and they have done everything in their power to do it.”

Newman says he met with Bob McDonnell before he was elected governor to make the case for funding the bypass. Then, during this year’s General Assembly session, he met with the transportation secretary and his staff to press again for the project. “To Sean Connaughton’s credit, he recognized that you can’t have one locality along a U.S. highway decide they can stop the flow of traffic through that area,” says Newman. The alternative, he adds, is “transportation anarchy.”

According to an April e-mail between VDOT officials, Transportation Secretary Sean Connaughton expressed his desire to see the Charlottesville Bypass “accomplished through ‘design build’” and sent to bid for $200 million during the summer. Months later, a worst-case scenario cost of more than $400 million emerged.

It is not clear exactly when the McDonnell administration made the decision to pursue the bypass, but the subject began popping up in VDOT e-mails as early as November 2010. In a November 10 communication, district engineer John A. Giometti noted that Utterback, the Culpeper district chief, was “looking for information on the bypass that was readily available.” Referring to a three-year-old PowerPoint document that had pegged the construction cost at $115 million plus several millions more for engineering and right-of-way acquisition, the engineer warned that “the cost data is old and would need to be updated.”

In January, Culpeper transportation district engineers began digging into the details. Under the subject line of “Charlottesville Bypass—The Resurrection?”, Chris Collins raised the issue of Federal Highway Administration involvement with the project and requirements it might impose. Other e-mails alluded to efforts by VDOT staff to pull together information on traffic forecasts and costs.

During this time, bypass foes had no inkling that the project was back in play. They assumed that the project was dead. Indeed, in February the Albemarle County Board of Supervisors approved in a six-zero vote the Places29 master plan that had been devised as an alternative to the bypass.

By early April, however, the thinking within the McDonnell administration had solidified to the point where Connaughton could broach the subject in a meeting with Albemarle Supervisors Duane Snow and Rodney Thomas. The two supervisors were planning to discuss funding for transportation projects related to Places29, but Connaughton asked them if they would be interested in reviving the bypass. According to Snow’s brief account several days later at an April 6 board of supervisors meeting, he and Thomas responded that their top concern was funding a widening of U.S. 29 north of the South Fork of the Rivanna River and a bridge for the Berkmar Extension in the same area, both of which were integral to the Places29 plan.

Snow’s account to his fellow supervisors was somewhat abbreviated. According to a subsequent interview Thomas gave this reporter, the two supervisors also pushed for funding of other projects, two of which were also tied to the Places29 plan, and one a bridge of importance to the City of Charlottesville. Connaughton gave assurances that he could help them with the Places29 projects and fund the bypass as well if they got the Albemarle board to reverse its opposition.

Connaughton may have played hardball with the two local politicians. Later, in a September meeting of the regional MPO, Snow revealed important details of the discussion that he had not made public earlier. “If you don’t move forward with the bypass, all the other things (Places29 projects) are off the table,” he quoted Connaughton as telling them.

Although Connaughton had tipped his hand to the two Albemarle supervisors, he tried to keep the project under wraps. Late in the afternoon of April 6 Marsha Fiol, VDOT’s transportation and mobility planning director in Richmond, sent an e-mail to Reta Busher, chief of programming and planning. Fiol said she had received a call from Utterback, the Culpeper district chief, who told her that “the Secretary” had asked him questions about what it took to move the project forward.

“The Secretary wants this project accomplished through ‘design build’ and wants it to go out this Summer for $200 million,” wrote Fiol. “The intent is to begin construction in 2012 and complete construction in 2016 or 2017.”

At that stage Connaughton was not willing to have the information go public, she continued. Utterback was sharing information “as necessary” only with Connaughton and other senior VDOT executives. “Jim [Utterback] cautioned that this is very confidential,” she closed.

“Thanks very much,” Busher responded. “Let’s limit the e-mail traffic on this.”

“Yes,” replied Fiol. “Jim called and expressed the same request.”

On June 1, Rodney Thomas formally broached the topic with the Albemarle board, moving to reverse a 1997 resolution instructing the county’s representatives on the regional Metropolitan Planning Organization to oppose the bypass. That motion failed by a vote of three to three.

But Connaughton did not accept defeat. He called Supervisor Lindsay Dorrier to persuade him to change his vote. “I assured him that if the MPO did move forward…that the state would end up altering or revising the six-year program to provide full funding for the project,” Connaughton told Charlottesville Tomorrow.

“Connaughton said his assurance was based on the existing alignment and design, and not some other alternative,” wrote reporter Sean Tubbs. He also quoted Connaughton as saying that the bypass would be tied to a separate project to widen U.S. 29 north of the South Fork of the Rivanna River and that a new cost estimate was needed for both.

On June 8, the Albemarle supervisors met again. Dorrier expressed his wish to change his vote. In a controversial series of parliamentary maneuvers that infuriated bypass foes, the board voted to reverse its previous opposition and to direct its two representatives to the MPO, Thomas and Snow, to remove language blocking the state from allocating money to the bypass.

The Albemarle board’s decision to reverse its previous opposition bulldozed aside the major obstacle to the bypass. Getting the MPO’s approval was a mere formality. The five-person MPO board included not only Thomas and Snow––Thomas even chaired the organization––but Jim Utterback, a VDOT employee. The three of them constituted a majority of the five-person board. The bigger challenge would be persuading the Commonwealth Transportation Board to allocate $197 million to a project that a large, vocal segment of its intended beneficiaries did not even want.

The Central Office starts asking questions

It’s not clear from the FOIA documents when the central VDOT office in Richmond got involved with the project, but word began circulating as early as May. On the 4th of that month, Reta Busher, chief of programming and planning, inquired of Deputy Commissioner Charlie Kilpatrick, “Did you talk to the Secretary about Rt. 29?” Not yet, came the reply.

By early June, the central office staff started digging into the project, discussing where the money might come from and passing around draft scenarios for the regulatory path forward. In a June 14 e-mail, B.A. Thrasher, a location and design engineer, described being called to the chief engineer’s office the previous evening to discuss the “resurrected project” and the “expedited schedule” to which the Secretary’s office was holding VDOT.

Around that time central office location and design engineers went into over-drive, scrambling to pull together various threads of the project. Among other tasks, they had to locate the documentation behind the original engineering and cost estimates, convert the older design plans from metric into standard American measurements, update the right-of-way acquisition plans and develop a credible cost estimate for construction.

By June 20, VDOT engineers in Richmond were expressing concern with the Culpeper numbers. Back in April, district engineer Giometti had used VDOT’s Project Cost Estimating System (PCES) to estimate that construction would cost $118,275,045, not including $16.7 million for project engineering and $100.2 million for right-of-way acquisition, some of which had already been spent. Various iterations of this spreadsheet were circulated inside VDOT over the next several weeks.

Thrasher wrote in an e-mail to one of his colleagues that he had communicated with Giometti, who had averred that his $118 million estimate was “generic in nature and does not account for anything [out] of the ordinary.” In a separate e-mail, Thrasher noted, “The estimate we have now is a shot in the dark. … I love it.”

Later that same day, Mohammed Mirshahi, deputy chief engineer for location and design in the central office, sent out an e-mail saying, “I do not feel comfortable with the district estimate…. there is no backup information to support it.”

Central office engineers quickly honed in on the necessity of blasting through an enormous amount of rock where the proposed bypass passed over Stillhouse Mountain. The next day, Jeffrey C. Cutright, project development program administrator, wrote a memo describing how another engineer had verified some of the key assumptions such as the volume of rock that would be needed to be removed and what a contractor would charge for controlled blasting, blast mats, removal by excavator and removal by truck. “With this in mind,” he wrote, “the construction estimate total is approximately $350,00,000.”

The engineers focused for several days on the rock conditions that a contractor would face on Stillhouse Mountain. Responding to a question of whether the rock was “more like granite or weathered rock,” Kyle R. Ott e-mailed that it wasn’t like granite. “The ground as described in the memo is a metamorphosed sandstone and shale … and decomposed rock/saprolite (very weathered rock).” Excavation methods would vary.

Engineers circulated a bewildering number of estimates and updates as they incorporated new information. On June 30 Bates e-mailed an update of the central office’s estimate of what a design-bid-build project would cost, creating a potential exposure of $413.9 million in the worst-case scenario. “Please note,” he added, “that [the scheduling and contract division] did not do an in-depth engineering estimate for this project given time constraints.”

The Secretary goes all in

Even though Governor McDonnell had appointed a majority of the 17 board members on the CTB, there were no guarantees going into the July 20 meeting that a majority would vote for the bypass. Jim Rich, a McDonnell appointee who represented the Culpeper district, had e-mailed impassioned pleas to fellow board members to deny the funding. As the representative of the district impacted by the bypass, his view carried some weight. Plus, appealing to the self interest of the other board members, he suggested that funneling $197 million into the bypass would leave less money for projects in other districts.

Sean Connaughton left nothing to chance. When he walked into the Commonwealth Transportation Board meeting July 20, he had lined up near-unanimous support for the bypass. Following a public hearing in which 50 to 60 Charlottesville-area residents came to Richmond to plead their case during the public hearing––most of them opposing the bypass––Rich renewed his plea. In the desultory discussion that followed, a handful of board members expressed support for the project, most notably Mark Peake representing the Lynchburg district. But for an issue so contentious and involving so much money, board members had remarkably little to say and they were remarkably incurious as to details. Sitting sphynx-like at the head of the board table, Connaughton said almost nothing at all. He didn’t need to.

“I think everyone reached a consensus beforehand,” Hollis D. Ellis, an at-large urban representative from Virginia Beach, said in an interview. In the lead-up to the CTB meeting, he had chatted by phone with other board members as well as the secretary himself. “It was the secretary’s opinion, and everyone else’s opinion, that we had to get moving on it.”

“There was a consensus going into the CTB meeting, a realization that the bypass actually could happen,” said J. Douglas Koelemay, who represents the Northern Virginia transportation district. “We did have some one-on-one conversations with each other, particularly when Jim Rich raised the prospect that this would siphon money from other districts.” Concerns about the project evaporated, however, “once we were assured that wasn’t the case.” (VDOT found money in funds that had been set aside for mega-projects and public-private partnership initiatives, so no one’s district would lose projects paid for through the Six Year Improvement Program.)

Connaughton didn’t need to twist arms, Koelemay says. “Sean’s a low-key guy. ‘I can use your help on this one,’ [he said]. I asked the questions I had, he had good answers. So I was fine.”

Questions remain

While the CTB proved compliant, VDOT’s central office engineers still had a few things to say internally about the project. More than a week after the board meeting, on July 29, Chief Engineer Malcolm T. Kerley wrote a memo to Commissioner Whirley, stating, “As we have discussed, the project has a very aggressive schedule and there are associated engineering challenges and financial risks.”

The same day Jeffrey Cutright, project development program administrator, issued a memorandum which provided an estimated $280,000 construction cost. In a matrix of low/medium/high likelihood and low/medium/high impact, he listed several risks. Among the more significant:

• The geotechnical data was insufficient to determine the amount and integrity of rock excavation. Cutright listed this as “high likelihood” and “high impact.”

• The southern interchange at Route 250 was originally designed to accommodate 2020 traffic volumes. New traffic projections could overload the current design. High likelihood and high impact.

• Utility adjustment/coordination requirements for power transmission lines and two gas lines were undefined. High likelihood and high impact.

• A severely compressed schedule increased chances of contract errors and compromised VDOT’s negotiating strength with the design-build contract winner. “VDOT,” he warned, “has only used this type of contract on small, relatively simple projects.”

By this point a disconnect had surfaced between the central office and the Culpeper district office. (The disconnect may have originated before the July 20 CTB hearing, but this was the first indication of it in the FOIA documents.) In an e-mail dated July 29, District Chief Utterback wrote: “I was under the impression that we were definitely going to downscale these interchanges and look at a way to reduce the rock cut on Stillhouse mtn so I did not engage on the estimate numbers…I am not trying to challenge the Chief Engineer, but we as an organization need to have some consistency and consensus on these estimates and we as owners need to have agreement on what we think should be built. I agree with the need to get other [Parsons Brinckerhoff consulting firm] folks involved…in addition to the original designers. We will be pressed to address the recent public comments about the cost of the project along with our intent on the interchanges in the very near future.”

E-mails flew back and forth between senior VDOT executives as they tried to nail down the project’s costs. At the end of the day, a Friday, Chief Engineer Kerley blasted out an e-mail to Whirley and others, reiterating, “As we have discussed, this project has a very aggressive schedule and there are associated engineering challenges and financial risks.”

Ironically, the same day that VDOT engineers were sorting through the cost issues, the Southern Environmental Law Center issued a consultant’s report that raised an issue not mentioned in any of the FOIA documents: Design considerations for the project would be more complex than originally envisioned because the bypass would have to pass through the same choke point as the Berkmar extension, one of the ancillary projects that Connaughton had promised to expedite. Both had to cross the South Fork of the Rivanna River at roughly the same point, threading between U.S. 29, a water treatment plan and a major subdivision.

“The three main options … face significant cost, engineering, and other challenges due to the number and length of bridges and under or overpasses needed,” wrote the consultant. “These challenges underscore the need for careful consideration of the costs and impacts of the proposed Bypass on the planned Berkmar Drive Extended.”

Never alluding to the SELC paper, Whirley wrote back to the central office engineers the following Monday: “I understand that there is a significant difference in the estimated project cost between the central office staff and the District staff. I am authorizing you to move forward and advertise the project as a design build project in September. The response to this advertisement will give me better data from which to determine project cost. While I am hopeful that the project bids will reflect that of the District’s estimate, we must create a procurement document that provides the contractor with flexibility to design and build a project that is cost efficient and addresses stakeholder’s needs. I am hopeful that the flexibility provided in the design build process and the continuation of a trend of very favorable bids (approximately 15% below the internal project estimates) will provide for project delivery within the current planning estimate.”
By September 17, word had reached the public that VDOT was proposing to issue a design-build contract, and some Albemarle County officials wanted to know what that meant for the construction of the Charlottesville Bypass. In particular, they wanted to know whether there would be time to incorporate meaningful public input on such issues as sound walls and the effect of air pollution from the highway on adjacent schools.

As VDOT officials later explained it to the Commonwealth Transportation Board, the department traditionally had used the design-bid-build process, in which VDOT staff designed the project and issued an RFP based on the detailed design and specifications. That approach had the advantage of taking a lot of the guesswork out of the bidding for contractors, but the process moved sequentially, making it slow and inflexible. With design-build, VDOT provides performance guidelines but the contractor executes the design. That approach shifts risk to the contractors but also gives them more flexibility in devising solutions. An advantage of the process is the ability to run design and construction phases concurrently. Construction could be underway on one section of the project even while engineers are designing another section. In theory, completing projects more quickly cuts construction costs. But theory was one thing and practice was another. While VDOT has conducted minor design-bid projects, it has never managed one on the scale of the Charlottesville Bypass.

Several days later, CATCO made public the correspondence it had received in response to its FOIA request. Charlottesville Tomorrow broke the story September 20, detailing how central office engineers feared that the project would be far more expensive than advertised.

The next day, Highway Commissioner Whirley felt compelled to give an explanation to the board at its regularly scheduled September meeting. Contrary to the impression created in the article, he said, VDOT had not withheld information. “We asked the Culpeper staff to develop an estimate for the bypass. We did not give them a target. It was a planning estimate,” he said. The central office engineers had based their estimate upon on the old, preliminary design, not the new thinking. “That was not a project we planned to build. That was not an official estimate…I felt that the Culpeper district engineer estimate was closer to the project we planned to build.”

Why the disconnect? The Richmond engineers had not been aware of the “evolution in thinking” in how the Culpeper engineers were planning to bring down the cost of the project, Whirley explained. The “sophisticated interchanges” at the north and south ends of the bypass could be “substantially simplified,” he added, and elevating the highway would eliminate the need to remove so much rock and dirt in the Stillhouse Mountain cut-through. Whirley said he met with the central office staff and “hashed out” the issues. Furthermore, he added, contract bidders are free to improve upon VDOT’s conceptual design. The hope is that an outside bidder can “bring his creativity to the table and just maybe find a better way” to lower the cost.

Connaughton backed up the VDOT commissioner before the CTB, describing events this way: “We asked internally how much this cost. No money has been spent. The bids will come back, and we’ll see how much they cost. They should be dramatically less.”

Jim Rich, the Culpeper representative, was the only CTB representative who expressed any skepticism. “I don’t know how this project will be designed––it’s just floating out there….I feel left out of the process. I don’t want to have to FOIA my own agency.”

VDOT’s thinking about the bypass design continued to evolve even after Whirley offered his explanation. In a task-force meeting organized by Albemarle County supervisor Kenneth Boyd, VDOT engineers presented two conceptual sketches of what the northern tie-in might look like. Both had a much smaller footprint than the original design. One eliminated the flyovers over U.S. 29 in favor of tightly curving on and off ramps. The other abruptly terminated the bypass at a stop-lighted intersection with U.S. 29. Although Boyd had voted in favor of the bypass, he opposed the idea of adding a stop light, which would cause delays on the main highway. “They had two designs,” he said in an interview. “We favored the one with no traffic lights.”

Did he think VDOT had pulled a bait-and-switch, selling the project on the basis of one design and approving a very different one? No, said Boyd. “I knew from the beginning that the terminus was going to change. They were very up front about that.” VDOT has been very open to input, he added. “They allowed me to put together a task force of 12 people” and submit recommendations.

But the final decision on the design won’t be VDOT’s. It will rest with the contractor who submits the winning bid to the RFP. VDOT expects to formally solicit public input on the project in the first quarter of 2012, and to select a contractor by April. Citizen input will be submitted to the winning contractor but the engineers will be under no legal obligation to incorporate it into the final design. As Connaughton said during the September CTB meeting, citing cost overruns associated with consulting the public on the design of the Springfield Bypass, “The public shouldn’t be involved in designing roads.”

While Connaughton and Whirley express confidence publicly that the design-bid contractor will find as-yet-unidentified savings, the RFP gives every appearance of having been rushed. Referring to a supplemental information package that is provided for purposes of background information, the RFP states, “The Department does not represent or warrant that the information contained in the Supplemental Information Package is reliable or accurate, or suitable for designing the Project. In fact, the Department is aware of multiple inaccuracies and inadequacies in the components of the package, and that the details contained therein are incomplete, not cohesive, and do not fully represent the Project.”

Connecting the dots

Stepping back and looking at the big picture, what does it all mean?

Once a decision was made to build the bypass—presumably Governor McDonnell was involved but we don’t know the details —Connaughton worked energetically to make it happen. As the Marsha Fiol communique makes clear, he laid down important markers early on: “The Secretary wants this project accomplished through ‘design build’ and wants it to go out this Summer for $200 Million.” Those priorities became the lodestar that guided all subsequent actions. To put the plan into effect, Connaughton made an unsolicited offer to Thomas and Snow, the Albemarle supervisors, to build the bypass. Sweetening the pot for them, he promised assistance in funding other U.S. 29 corridor road projects. When the Albemarle board initially blocked his plan, he picked up the phone to call Lindsay Dorrier and persuade him to change his vote. Similarly, in June, he contacted CTB members personally to develop a consensus ahead of the board meeting and public hearing.

It is impossible to know Connaughton’s state of mind going into the CTB meeting. But given the vehement opposition to the bypass, it would not have made his job any easier had CTB members known (a) that no one had a firm grasp on what the project would cost, (b) that the engineers, seeking to reduce the cost, were re-thinking the conceptual design but had reached no firm conclusions yet and (c) that VDOT was planning to enter into a design-build contract of a size and scope it had never managed before. Such information undoubtedly would have roiled the crowd of speakers who had come to oppose the project, it would have emboldened Jim Rich, the lone hold-out on the board, and it might even have provoked probing questions by other board members.

Jim Utterback, the Culpeper district chief, glossed over those issues in his presentation. Whirley and Connaughton looked on while he spoke, and neither one saw fit to fill the gaps in his narrative. The question, then, boils down to this: Did they deliberately withhold that information from the board or did they simply believe it to be not pertinent?

Two months after the July 20 CTB meeting, Whirley argued, in effect, that the information left out of Utterback’s presentation was not relevant. The thinking about the project design had changed at the district level, he explained, and Central Office engineers were basing their concerns on an outdated plan. In effect, the internal flap over the construction costs was all a misunderstanding. There was nothing substantive to reveal to the board.

But that explanation raises new questions. There was no clue in Utterback’s presentation to the CTB that thinking about the design had changed. The Culpeper chief stated that bypass construction would cost $118,275,045 to build. It stretches credulity to suggest that his district engineers had gone back to the drawing boards, developed new design concepts and come up with a new estimate that was the exact same number, down to the dollar, that the Culpeper office had come up with in its preliminary estimate back in April. If Culpeper office engineers had re-thought the project, why would the Culpeper district chief recycle the old project numbers without a word of explanation?

Further, there was no sign in the schematics that Utterback displayed on the overhead screen––with long ramps, high elevations and flyovers––that the design had been “simplified” in any way. He did describe the design for the northern terminus as “incomplete,” presumably a reference to the fact that the 1997 design had never been finished. But he never suggested that the schematics he flashed on the screen might no longer reflect current thinking. Furthermore, Utterback uttered not one word about another major design change––the elevation of the bypass at Stillhouse Mountain that Whirley later said would reduce the cost of rock excavation. It is difficult to argue that such a fact was not germane. Board members legitimately might have queried how much it would cost to raise the highway, and whether a higher elevation and steeper slope would affect travel speeds and highway capacity.

Finally, the FOIA documents show that the internal VDOT controversy, far from being resolved, simmered long after the CTB approved the funding. Differences between the Culpeper office and the central office were not settled until well after the CTB meeting. As Utterback said in a July 29
e-mail, “We as an organization need to have some consistency and consensus on these estimates and we as owners need to have agreement on what we think should be built.” And as Whirley confirmed three days later: “There is a significant difference in the estimated project cost between the central office staff and the District staff.” The commissioner was looking forward to seeing the bids, which would give him “better data from which to determine project cost.”

In sum, the McDonnell administration wanted to expedite the Charlottesville Bypass but disagreements erupted inside VDOT over the costs. When seeking the CTB’s approval, VDOT’s point man, with the administration’s approval, omitted important material from his presentation that might have cast the project in a negative light. CTB members have every right to demand a clearer explanation not only of how much money the bypass will cost, but why the McDonnell administration kept them in the dark.

Richmond-based James A. Bacon Jr. publishes the Bacon’s Rebellion public policy blog at www.baconsrebellion.com. A University of Virginia grad, life-long Virginia journalist and former Charlottesville resident, he rose to the rank of Publisher and Editor-in-Chief of Virginia Business magazine before launching Bacon’s Rebellion in 2002. He worked briefly as Vice President of Publishing for the Richmond-based Boomer Project, and then wrote a book, “Boomergeddon,” before resuming publication of the blog.

 

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