Daniel Weintraub: State is in a fine mess over peanut butter and jelly

(Published July 17, 2001)

The state of California has declared a peanut butter and jelly emergency. An imminent shortage of the children's classic threatens violence in the prisons, where inmates consume thousands of pounds of peanut butter and jelly every year.

The danger of riots, according to the state, justifies a disputed $1 million, no-bid contract for a six-month supply of the stuff.

This is a true story. But it's about more than peanut butter and jelly. It's about a determined state bureaucracy that stretches the rules -- and credulity -- to get its way, at a significant cost to the taxpayers and the rights of a small-business man.

It all started when Adam Clingerman messed up his bid for the peanut-butter-and-jelly contract. A veteran of 41 years in the food service business, Clingerman is a self-employed distributor who works out of his San Ramon home as a middleman between food manufacturers and government buyers.

He had the contract to deliver peanut-butter-and-jelly "squeezers" -- little 1-ounce tubes that go into sack lunches for inmates whose prison jobs take them away from where lunch is served. The convicts squeeze their peanut butter out of one tube and the jelly out of another onto bread that the kitchen puts dry in their lunch bags.

Clingerman's contract was about to expire. When the state asked for bids for another 12 months' supply, he was the lowest bidder once again. His $1.9 million proposal was $185,000 less than his closest competitor. But he did not get the job.

A few days before the bids were opened, a buyer in the state Department of General Services asked for samples of the products the bidders were selling. And after years of buying the peanut butter and jelly in squeezers that came in connected pairs, the state wanted the combo packs perforated. That way, if an inmate wanted to eat the peanut butter in the morning and the jelly in the afternoon, he could tear the packets down the middle and use one, while keeping the other for later.

Clingerman sent word to his supplier in Georgia. The supplier sent the samples directly to the state. But the supplier made a mistake. It sent the old, fully connected tubes instead of the new, perforated ones. Clingerman lost the bid.

When the state told Clingerman that he was the low bidder but wasn't going to get the job, he was upset. He sent the correct samples the next day and told the state he would challenge the decision to award the contract to a higher bidder.

The state's buyers were not happy. According to Clingerman, a woman in the Department of General Services told him he was making a big mistake. If he persisted, she said, she would declare his protest frivolous. And if that label stuck, Clingerman would not only lose the peanut-butter-and-jelly contract, he would be suspended from doing any other business with the state.

"I felt threatened," Clingerman said.

But he still believed he deserved to win the peanut-butter contract. So he hired a lawyer. The lawyer determined that the law the state's buyer was using to declare the challenge frivolous was no longer on the books. Clingerman and his lawyer told the state's buyers that they would have to deal with the substance of his protest. They would have to give Clingerman a chance to make his case.

Now the state really started playing hardball. The buyers simply tore up the request for bids and the contract that went with it. You have nothing to protest, Clingerman was told, because you didn't lose the contract. There is no contract.

But the state still needed peanut butter and jelly, now more than ever. Thomas Jovero, who runs the food operation at Vacaville prison, provided a written declaration describing the dire situation. Inmates have rioted, Jovero noted, over uneven cake slices and after being served hamburger when they expected steak. Peanut butter could be the next flash point.

"Many inmates are heavily invested emotionally in the routine availability of certain types of food," Jovero wrote. "Prominent among these foods is peanut butter and jelly for religious and vegetarian inmates."

So the idea that religious and vegetarian inmates would riot if they weren't served peanut butter and jelly for lunch became the grounds for a declaration of emergency. The state decided it needed a six-month supply of peanut-butter-and-jelly squeezers -- now.

In an emergency, the state can buy things without seeking competitive bids. The state, in fact, could have bought the squeezers from Clingerman, since by then he'd shown that he could provide the perforated packets at the lowest price. But the state did not buy from Clingerman.

The six-month, $1 million contract went to Clingerman's competitor, the company that the state's buyers had wanted to give the contract to all along.

Clingerman has taken his case to court, and he won a tentative victory Monday. But no matter what the ultimate outcome, he already has learned the hard way that the state does not like to be told it is wrong.

http://www.sacbee.com/voices/news/voices05_20010717.html

-- Martin Thompson (mthom1927@aol.com), July 17, 2001