The Utah Attorney General’s office is investigating Weber State University’s request for proposals (RFP) for a lecture capture system in a case that raises important questions about competitive-bidding practices in higher education.
Lynn Packer, who had hoped to submit a bid for a lecture capture system he helped design, filed with the state attorney general’s office after discovering what he believed to be a bid specification rigging scheme.
Packer believed that lecture capture giant Sonic Foundry was working with university employees to ensure that the RFP could be fulfilled only by Sonic Foundry’s Mediasite platform through the use of “kill points.”
Kill points are requirements in an RFP that very few products have, thereby destroying competitors’ chances to make a bid.
“I guess any company who is selling something would like to have some kind of an edge, because the more competitors you have, the less chance you have of getting the bid. And the lower price you have to bid, the less profit you make—so if there’s any way to reduce the number of competitors and improve your profit, [all] the better,” he said.
Packer said there were several items on the RFP that he termed “fishy.” For instance, he said, the RFP stated that the lecture capture hardware and the video management system should be purchased together, which eliminated a large number of competitors who don’t offer a video management system. He also took issue with the lack of prices listed.
“When the review committee first looked at it and narrowed the choices, they wouldn’t even know what the price of the system was, and that is just laughable,” said Packer. “That is heavily weighted and biased towards Mediasite and just a couple of other really expensive products.”
Sonic Foundry declined to comment for this story, noting that it hasn’t been formally implicated in any wrongdoing.
However, John Kowalewski, a Weber State University spokesman, said Packer went to the state attorney general’s office before Weber State had a chance to re-examine the RFP.
“Recognizing that there was an issue that he was concerned about, the university actually took the step of canceling the RFP to review his concerns,” said Kowalewski. “Prior to us even being able to conduct an internal review, [Packer] then filed a complaint with the attorney general’s office.”
Packer defended his actions, saying: “In my view, it’s crystal clear that at least unethical and unfair behavior has occurred. If you can find someone on the inside and convince them to write specifications that favor your product, then that’s when this anti-competitive [behavior] starts to rear its ugly head.”
He believes that’s what occurred between Sonic Foundry and information technology staff at Weber State.
Packer claims he encountered a former Sonic Foundry staff member at a trade show who told him that his past employer frequently used kill points in order to wipe out competing products.
“I suspect that some IT people … may fall into this hardly understanding that they’re violating the law. I would suspect most of them know damn well what they’re doing,” Packer said.
But Kowalewski stressed that Packer never gave the university a chance to conduct an internal investigation.
“Mr. Packer took his issue to the attorney general’s office so quickly [that] we were never in a position to review his concerns at the university level,” he said, noting that the university did take action.
“As a result of canceling the RFP, we wound up not purchasing a product and, in fact, at the time the cancellation occurred, we had not even received a single bid for the lecture capture product that we were putting out a request for proposals on,” Kowalewski said.
Packer also said the investigation has been delayed by Weber State’s unwillingness to produce documents, but Kowalewski said the university has been fully compliant with all orders.
“We’ve complied fully with the attorney general’s investigation, and we’ve provided them with upwards of 5,000 documents that they requested,” Kowalewski said. Attempts to contact the attorney general’s office directly were unsuccessful.
Attorneys for Weber State had applied for a secrecy order and had argued that the case should not be made public, as it “poses a threat of irreversible damage to the reputations of the public employees … and the private individuals and firms.” However, that order was reversed after Packer filed a brief requesting a review of how the secrecy order was drawn.