preliminary report to the leon county school board
TRANSCRIPT
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Preliminary Report the Leon County
School BoardNovember 10, 2014
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Henry M. Coxe, III
Brian T. Coughlin
Bedell Firm101 E. Adams St.
Jacksonville, FL 32202
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Background and
Scope
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Scope of engagement
Initially, to advise Leon County School District employeesduring law enforcement investigation to the extentnecessary, and to coordinate with government authorities
Broadened into an investigation, for the benefit of theLeon County School Board, focused primarily on theDepartment of Construction and Facilities
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The Notebook
Scope includes allegations in the notebook relatedto construction activities within the District
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Resources available
We have had cooperation from the Office of theSuperintendent and the Department of Construction andFacilities
Also from some former employees and independent
witnesses
No authority to compel information from non-Districtemployees
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Majority of investigation complet
40+ interviews
Thousands of documents,both internal and external
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Construction Contracts
Awarded based on improper considerations?
Political contributions
Personal relationships
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Division of construction projects
Why were projects divided?
Was it lawful to divide projects?
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Applicable law
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Construction Contracts
Governed by Section 287.055, Florida Statutes, alsoknown as the Consultants Competitive Negotiation Act(CCNA)
Section 255.103, Florida Statutes, provides that the
District may enter into continuing contracts, pursuantto the process required by the CCNA, for contracts that donot exceed $2 million
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Continuing Contracts
A contract for professional services between an agencyand a firm whereby the firm provides professional services
to the agency for projects in which the estimated
construction cost of each project under the contract does
not exceed $2 million or for work of a specified nature
as outlined in the contract required by the agency.
287.055(2)(g), Florida Statutes
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CCNA
Designed to provide clear procedures for governmentalagencies to follow to:
-make contracting for professional services morecompetitive
-require employment of the most qualified andcompetent individuals and firms at fair,competitive, and reasonable compensation
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CCNA
1. Public announcement
2. Competitive Selection
-only certified/prequalified individuals or firms
3. Competitive Negotiation
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Public Announcement
The government agency shall publicly announce, in auniform and consistent manner, each occasion whenprofessional services must be purchased for a constructionproject
287.055(3)(a)1., Florida Statutes
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Competitive SelectionIn determining whether a firm is qualified, the agency shall
consider such factors as:
-the ability of professional personnel
-whether a firm is a certified minority businessenterprise
-past performance
-willingness to meet time and budget requirements-location
-workloads of the firms
-volume of work previously awarded to the firms by theagency
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Competitive Selection
with the object of effecting an equitable distribution ofcontracts among qualified firms, provided suchdistribution does not violate the principle of selection ofthe most highly qualified firms.
287.055(4)(b), Florida Statutes
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Competitive Negotiation
The agency shall negotiate a contract with the mostqualified firm for professional services at compensationwhich the agency determines is fair, competitive, andreasonable.
287.055(5)(a), Florida Statutes
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Competitive Negotiation
If unable to negotiate a satisfactory contract with the mostqualified firm at a price the agency determines to be fair,competitive, and reasonable, negotiations with that firmmust be formally terminated. The agency shall thenundertake negotiations with the second most qualified
firm. (Then third, fourth, etc.)287.055(5)(b), Florida Statutes
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Preliminary Finding
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Awarding of contracts
We have not identified evidence that constructioncontracts were selected or assigned with criminalor fraudulent intent
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Political contributions andconstruction projects
Allegation in the notebook:
The appearance that the Superintendent and AssistantSuperintendent are actively lobbied and influenced bypotential contractors and consultants
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The appearance
Those involved in the compilation of the notebook told usthat they had no direct proof
No one within or connected to the Department of
Construction and Facilities has offered proof
No bid protests by contractors
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Contributions to Pons campaigns(2006 to present)
0
2
4
6
8
10
12
$Thousands
Contractor
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Assigned contracts(January 2007 to January 2014)
0
2
4
6
8
10
12
14
$Millions
Contractor
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Political Contributions
$80,849 , 9%
$776,188 , 91%
Contractors
Other
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Division of projects
Intended to divide large projects so they could be assignedto multiple firms pursuant to continuing contracts
Examples:
Griffin Middle School (2)
Killearn Lakes Elementary School (2)
Gilchrist Elementary School (2)
Kate Sullivan Elementary School (3)
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Griffin Middle School
Has drawn much attention
First divided project
Selection committee interviews nearly halted
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Last minute change
February 24, 2009:
Closing of Belle Vue Middle Schoolapproved
March 9, 2009 to April 9, 2014:
Rezoning meetings
April 14, 2009:
Selection Committee interviews
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Presentation to LCSB
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Presentation to LCSB
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Why divide?
Local economy
-recession began in late 2007, businesses hurting
-spread projects among a broad group of localcontractors
-maintain viable base for the districts future work
Timeline issues
-finite periods of time to spend and build
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Control
Stated motivation is altruistic
Superintendent is a hands-on leader
Division of projects allowed maintenance of control
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Audit recommendation
State Auditor General critical of the practice:
District records did not evidence the basis upon which the Districtseparated the CME construction and upfit services into two differentprojects. In these circumstances, the District effectively circumvented theprovisions of Section 287.055, Florida Statutes
Practice continued for a small number of projects that hadalready been approved, then was stopped
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Efforts to avoid competitive select
Gilchrist Elementary
Consent agenda
$1,999,782
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Efforts to avoid competitive select
Ghazvini CenterGym
$1,999,999
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Assignment of contractors
Talent to the task
Documentation extensive, but lacking in reasoning behindassignments
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Assignment of contractors
When asked for further insight:
A committee was not used for selection, howeverthe following factors were evaluated: pastexperience of the contractor, current workload of thecontractor, and ability to complete project on time
and within budget.
Allows criticism and skepticism to thrive
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Continuing Contracts
The continuing contract provision of 287.055, FloridaStatutes, represents an exception to the generalcompetitive bidding provisions of the act and should beread narrowly and utilized sparingly in order to avoid anappearance of circumventing the requirements of the
statute.Florida Op.Atty.Gen., 2013-28 (2013)
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Recommendations
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Selection projects
Stay true to the statutory intent of CCNA
Consider providing guidelines for who should sit on theselection committees
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Assigned projectsProcess considerations
How should the decisions get made?
By whom?
Thoroughly document analysis and factors behindassignments
Create standard documents for use
Consider threshold $ amount for assignment
($1.5 million?)
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Other issues
Explore best term length for continuing contracts
Disclosure cap for dollars spent under continuing contract
Create specific guidelines for when amendments orchange orders are appropriate, especially with GMPcontracts
Be sure to prequalify on annual basis, pursuant to SREF4.1
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Maintain public confidenceA candidate may not, in the furtherance of his or her
candidacy for nomination or election to public office in anyelection, use the services of any state, county, municipal,or district officer or employee during working hours.
106.15(3), Florida Statutes
A step further, consider keeping employees involved inelection efforts completely separate from selection andassignment of contracts
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Maintain public confidence
Consider requiring disclosure when political contributionscame from those attempting to do business with theDistrict
Designate a person or entity available to district employeeto address concerns or answer questions
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Summary
No evidence of criminal or fraudulent intent
Projects divided
Need for better documentation as to reasoning
Stay true to applicable statutes
Emphasis on transparency
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Questions?