Ausley Construction is no stranger to government bid controversy

File photo: Ausley Construction was contracted to build a new elementary school at Winding Oaks Farm in Ocala, Fla. on Wednesday, June 5, 2024. [Bruce Ackerman/Ocala Gazette] 2024.

Ausley Construction has informed the Marion County School District it will not submit a new bid for the $120 million high school project, the largest construction contract in school district history.

The decision follows a May 27 investigative report by the law firm GrayRobinson that substantiated claims that Ausley had violated the district’s “cone of silence” procurement policy by communicating with the superintendent, district employees, committee members, and school board members during the bid evaluation period.

In the May 31 five-page letter, Kenneth C. Ausley, CEO of Ausley Construction, denied his company violated the policy and alleged the investigative report is flawed in that it does not address his concerns about how the district scores bids from construction companies.

Ausley’s letter frames the company’s goodwill, citing a “stellar reputation” in the community with over 50 projects for the Marion County School System (going back to the 1960s).”

“We are huge fans of the Marion County School System as evidenced by the myriad ways we have served, volunteered, invested in, and supported the district through the years,’’ the letter continued. “We solely objected to the process because of the manner in which the scoring was conducted.”

As previously reported, Ausley currently chairs the Independent Citizens Referendum Oversight Committee and Todd Duffy, the chief operating officer for Ausley Construction, serves on the Public Education Foundation board, along with family members of the company’s other principal, Dustin Magamoll.

According to the investigator’s report, the committee members who interviewed the top three most qualified construction companies–Ausley Construction, Wharton-Smith and Charles Perry Partners–scored Wharton-Smith the highest because it had already successfully built the same prototype high school six times in other communities.

Ausley Construction came in second in the scoring. In the May 31 letter, however, Ausley said an undisclosed “experience penalty” was put in place by the district in 2023, giving Wharton-Smith an edge in getting the contract.

The “Gazette” is unable to substantiate that claim. Ausley has declined to respond to requests for an interview.

According to public records considered by the investigator, Ausley understood the scoring was not meant to preclude local contractors but instead distribute work evenly as required by Florida Statute § 287.055 (4)(b). This statute requires government agencies not only to identify the most qualified entity to perform services but encourages consideration of “the volume of work previously awarded to each firm by the agency, with the object of effecting equitable distribution of contracts among qualified firms.”

Barbara Dobbins, the district’s senior executive director of Operations, said the scoring process was changed in 2022 to “implement an objective criteria for meeting Florida State Statute 287.055 (4)(b) and lower the risk of statutory violation.” One or two points are now added to those contractors who have done the least amount of work for the district “to ensure equitable distribution.”

If a contractor has previously contracted less than $10 million, for example, it has two points added to its score; if it has done $10 million to $15 million, it receives one point. No extra points are awarded if the contractor has done more than $15 million in work for the district.

Ausley said in his letter that this change penalizes the most experienced local contractors and that he was unaware of it until recently. However, the investigator noted records that indicate otherwise.

Dobbins explained to the “Gazette” that just last year, “Ausley Construction submitted their application for the Osceola Middle School (OMS) gym project and received an interview time for Oct. 12, 2023. On Oct. 10, 2023, Ken Ausley contacted me by phone. During the call, Mr. Ausley wanted to confirm the scoring criteria for the project and directly asked if we (MCPS) were still going to weight in the scoring the amount of MCPS work awarded. I informed him that we will continue to weight that criteria because it protects the district in regards to what the Florida Statutes clearly states as the requirements for selection.”

That’s when Ausley prioritized which bids meant the most to him, Dobbins said.

“He stated that due to this criteria, his company had withdrawn from the OMS project and that he would not be applying for the upcoming Liberty Middle School project. He went on to state that he wanted to ensure that he did not jeopardize his chance of receiving the new high school project,” she explained.

Dobbins provided telephone call records that indicate her conversation with Ausley took place on that day over 11 minutes.

Robert Batsel, of the law firm of Gooding & Batsel wrote the school district attorney Jeremy Powers in an email on May 1, that application of 278.055, Florida Statutes in regards to equitable distribution of contracts should not be applied “at the expense of choosing the most qualified firm.”

This was not Ausley’s first controversial high school bid.

A March 18, 2002 Florida Auditor General audit report challenged the Marion school district’s informal process for awarding the Forest High School contract to ACA Construction Group, LLC. The principals of ACA were Ken Ausley, his brother James Ausley, and Ausley’s Chief Operating Officer Todd Duffy. Barry Mansfield, current City Council Chair and CEO of Cullison & Wright, was also a principal of ACA.

Ausley Construction’s portfolio includes multiple schools built under ACA Construction, which dissolved in 2018, according to Division of Corporation records with the State of Florida.

The auditor’s report criticized MCPS for “an informal point rating system” that seemingly came “by consensus.”

After reviewing the procurement process related to ACA for the Forest High School contract, the auditor said, “We observed penciled-in numerical ratings for each proposer in total, without any identification of the specific values assigned to each of the criteria listed” by the nine-member committee. The auditors determined the process was not compliant with the statute.

Now, the MCPS tallies scores using individual committee member’s scoresheets.

The auditor general directed the district to develop a formal procedure in compliance with the statute. The district created the procedure under the direction of Robert Knight, who had been hired as district supervisor of facilities just a few days before the auditor issued its report.

Dobbins said those procedures were vetted and approved by the auditor. Audits every three years since then have shown the auditors have had no subsequent findings that the district has done anything wrong with its scoring system.

The attorney for ACA was Ausley’s brother, Jimmy Gooding, whose firm has been influential over three decades as the city’s attorney law firm.

The investigator’s report noted Ausley’s vast experience with local government procurement processes that are similar to the district’s. According to Ausley Construction’s website, the company has received numerous contracts with local government for millions in construction contracts paid for with public funds. These include the Ocala International Airport and the Marion County Sheriff’s Office’s new evidence building.

Ausley also has significant public construction contracts outside of Marion County. According to their website, they are building facilities in Pennsylvania and Kentucky. The company completed a $14 million project for the College of Central Florida in Levy County in 2017, and is building the $20 million nursing facility at CFC’s central Ocala campus.

The college is represented by Gooding & Batsel, the same law firm that represents Ausley Construction.

Rule 4-1.7 of the Florida Bar Rules & Standards, related to professional conduct of lawyers, states that a lawyer must not represent a client if 1. The representation of one client will be directly adverse to another client; or 2. There is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.

The exception to that rule is if the lawyer “reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client” and “each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.”

Rob Batsel, Jr. said he and his law partner, Gooding, disclosed the conflict of interest to the college in 2018, including Gooding’s familial relationship to Ausley. CF President James Henningsen waived the conflict, Batsel said.

Henningsen told the “Gazette,” that he had no independent recollection of that conversation with Batsel and since it was not the college’s practice to make a log of such conversations he could neither admit nor deny Batsel’s account of granting a waiver.

In 2019, Ausley Construction filed a formal bid dispute with the city of Ocala against another out-of-town company whose bid came in lower on the Mary Sue Rich Community Center. Bid disputes don’t happen regularly, according to public records provided by the city, only nine have been served on the city in the last ten years.

Ausley’s brother, Jimmy Gooding, served as one of city’s attorneys at the time. Ausley eventually withdrew the protest during the administrative process and abandoned efforts to obtain that bid.

In that dispute, the city’s law firm told city staff they would need to obtain an outside firm due to a conflict of interest between the firm and Ausley. Despite identifying the conflict of interest, public records show that the firm still drafted memos and advised city staff on the dispute while criticizing the city’s conflict counsel.

In a seven-page memo during the 2019 dispute, Gooding states the Mary Sue Rich contract was “awarded in a manner that exposes the city to litigation and serious problems” and that if the firm had “not had a conflict [of interest] to start out with, I do not think that the City would [be] in this situation.”

Gooding expressed concern about how city staff would take his advice.

“I also do not know if city staff will agree that my advice is not colored by my brother’s involvement,’’ he wrote. “I would hope that you would know better but [I] recognize that there is a potential for suspicion.”