Two bidders who sought Charlottesville’s Robert E. Lee monument have filed a protest letter, charging that the bid process to rid the city of Lee’s statue was “disastrously arbitrary” and that it resulted in a “capricious, illegal award.”
Trevilian Station Battlefield Foundation and the Ratcliffe Foundation, on behalf of its subsidiary Ellenbrook Museum, filed the letter Dec. 14. The foundations are represented by attorney Ralph Main, who also represented various Charlottesville area residents in a previous Monument Fund-backed lawsuit against the city over votes to remove the Lee and Jackson statues.
“Instead of transparent: opaque. Instead of regular and managed: improvised and lawless. Instead of careful and fair consideration: a cursory midnight discussion and preconcerted effort to flout the legislative limit on City Council’s authority,” Main wrote in the letter to the city.
The protest letter comes in response to the city council vote on Dec. 7 to accept a bid from the Jefferson School American Heritage Center to melt down the Lee statue and then commission a new piece of community art. Many hailed the council decision as visionary and the Jefferson School plan as hopeful, a way for the city to move beyond the violence and divisiveness that the Lee statue has engendered over the years.
The initial decision to remove the statue sparked the deadly white supremacist Unite The Right rally in August 2017, where anti-racism protester Heather Heyer was killed and dozens of other counter-protesters were seriously injured.
Thanks to changes to the state code and a victorious Supreme Court of Virginia appeal, Charlottesville officials in July were able to remove the Lee statue as well as a statue of Gen. Thomas “Stonewall” Jackson and statue of Meriwether Lewis, William Clark and Sacagawea.
The City Council made a historic vote just minutes after midnight on Dec. 7, unanimously granting a proposal to donate the Lee to the Jefferson School African American Heritage Center, a local Black history museum.
The statue has been in a city storage facility since its removal on July 10. The city called for proposals on what to do with the Lee statue in July and again in September. The Jefferson School submitted a proposal for the statue to be melted into ingots and transformed into a work of art that reflects the community’s values. The statue will then be given back to the city for public display. The process will include a comprehensive six-month community engagement process.
According to the bid protest letter, the award to the Jefferson School was illegal and the award/voting process violated various state and local procedures.
Main also argues that the city does not have the authority to destroy a statue, directly or indirectly, based on unsuccessful attempts in 2020 to amend the state code to allow localities to alter or destroy monuments. It remains unclear whether donating a monument to a group that wishes to destroy or alter it does indeed violate the updated state code.
“Instead of winning, that offer should have been rejected,” Main writes in reference to the Jefferson School’s proposal. “The award fails, and the Lee procurement must be re-competed with only lawful offers made.”
Additionally, Main argues on behalf of the complainants that the city did not give proper notice of the resolution, thus rendering the vote “null and void.” Main also argues that the city did not follow its own policy of offering three “working days’” notice, posting the agenda item on the Friday before the Monday meeting.
Main also argues that the city council acted unlawfully due to a lack of a city manager, interim city manager or designated manager for the solicitation.
“Without executive leadership authorized to act, the city council should have postponed or canceled the orphaned solicitation,” Main wrote. “Instead it fumbled along by inertia.”
The two bidders request that the award be vacated and that the city re-open the statue up for bids.
Andrea Douglas, director of the Jefferson School, said the organization had no comment at this time.
City attorney Lisa Robertson and a spokesman for the city did not respond to a request for comment.
However, a 2014 document authored by Robertson does shed some light on what is likely to happen next. In the document, titled “The Virginia Public Procurement Act: A Guide for Public Officials,” Robertson outlines various procurements processes, including protests of contract awards.
Citing the Virginia Public Procurement Act, or VPPA, Robertson wrote that a disappointed contractor may protest a contract awarded to another bidder via written protest submitted to the public body within 10 days of the award or announcement of the decision to award.
Within 10 days of the receipt of a protest, a public body must render its written decision, Robertson wrote, and thereafter a protester has 10 days to initiate an appeal.
“VPPA does not require a public body to delay a contract award for the period allowed to a bidder to protest,” Robertson wrote. “However, in the event that a timely protest is received, or if legal action is timely filed, no further action to award the contract may be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest, or the bid or offer would expire.”
Based on the language of the VPPA, it appears Charlottesville will need to respond to the bid protest letter within 10 days, placing the deadline right around Christmas.