Second review upholds school district’s procurement policies in high school construction bid

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.

After the selection process by which a construction company was chosen to build a high school in southwest Marion County, a separate investigation into the district’s overall procurement policies has found no fault in the district’s selection criteria while recommending several policy adjustments.

As previously reported, an investigation by the GrayRobinson law firm substantiated allegations of tampering with the procurement process against School Board Member Sarah James and members of Ausley Construction for misconduct involving threats James and Ausley Construction made toward school district employees, another school board member and superintendent Diane Gullett.

Both James and Ausley Construction have denied wrongdoing and have maintained that the school district’s procurement policies are flawed.

After the GrayRobinson report was made public, attorney Brian Williams and Jaime Torrens from Miami-Dade Public Schools were brought in to conduct an external review of Marion County Public Schools’ overall construction procurement policies, assessing the district’s compliance with state statutes on procurement, and compared the district’s procurement policies with those of other school districts and local governments in Florida.

The review found MCPS’s policy complied with Florida statutes; however, they also found MCPS deviated from its policy when it allowed James to serve on a selection committee for the high school project, to review bids, to score submittals and to conduct interviews.

The findings are set to be presented to the school board at its Tuesday meeting. School Board Chair Nancy Thrower said at a previous meeting that the board will decide whether to send the findings of the GrayRobinson investigation to the governor’s office for further review, as it has done in the past with similar investigations, after the board members reviewed the findings of the second review.

The policy analysis backed up the findings of the GrayRobinson investigation into claims regarding violations of the district’s “cone of silence policy” during the procurement process for awarding the bid for the high school project. As for the policies on scoring for the procurement process, the analysis found no fault in MCPS’ criteria.

“The procurement selection criteria developed by MCPS is consistent with processes utilized throughout the State of Florida by others who procure similar services,” according to the analysis. “At the time of our review, there was nothing to indicate that MCPS’ processes were arbitrary, capricious, clearly erroneous, or contrary to competition.”

The review, however, suggested several changes for the school district.

Based on MCPS policies and the language included in the invitation for bid, the selection committee was advertised to include six members and include a facilities department supervisor, facilities department design or construction coordinator, depending on the type of firm being selected; a district office administrator; a curriculum administrator, maintenance administrator or foreman (depending on project scope); and a member of the business community.

The report indicated that having a member of the school board on the selection committee was a stray in policy and could cause complications in the selection process.

“Noticeably absent from both the Facilities Department Policies and Procedures Manual and the language contained in (the invitation to bid) is any mention of a School Board member being part of the selection committee for the procurement of professional services for a construction project and more specifically, New High School CCC,” according to the analysis.

The report recommended MCPS prohibit school board members from serving on any procurement selection or evaluation committees, intervening with the activities of those committees or intervening on any school district staff members from performing duties related to selection.

And if MCPS were to deviate from that policy, it was recommended the district seek an attorney’s advice and an advisory opinion from the Florida Commission on Ethics before the commencement of a solicitation process.

The analysis also gave an opinion on the claims made by attorney Robert Batsel, who wrote to School Board Attorney Jeremy Powers on behalf of Ausley Construction. Batsel urged MCPS to reject all bids due to the “defective and improper application of the evaluation criteria” and begin re-procurement, according to the investigation.

“Facilities staff were neither arbitrary or capricious (that is, an abuse of discretion), clearly erroneous, or contrary to competition as stated in the correspondence (from Batsel to Powers),” according to the analysis.

Batsel has not responded to a request for comment from the “Gazette.”

Williams and Torrens also recommended the district implement a procedure to bar vendors who violate federal, state or school board policy from entering into future contracts with MCPS. If the school board decides to implement such a policy, it could prevent contractors that have violated school board policy, like Ausley did, from being awarded future contracts.

The report included additional disclosure measures for MCPS to use to prevent future bid disputes such as including specific references to the “cone of silence policy” in all invitations for bids, requests for proposals, and invitations to negotiate.

The district’s “cone of silence policy” prohibits any involved parties from discussing the selection process to protect the integrity of the procurement process and to shield it from influence before the recommendation for the contract award is given. Ausley Construction was found to have violated this policy through its contact with school district staff during the procurement process.

Additionally, the analysis recommended MCPS add language to its requests for qualifications that specifically delineates all scoring and evaluation criteria that will be used to evaluate proposals submitted.

“Creatively, counsel for Ausley attempts to argue that the language contained in (the invitation to bid) was ambiguous even though the investigation report makes it clear that Ausley was aware of the scoring criteria,” according to the analysis. “As a secondary argument, Ausley through their counsel, suggests that the criteria used by MCPS appears contrary to the process of competitive selection. However, MCPS’ procurement selection process for construction management firms is clearly supported by CCNA.”

The CCNA is the Consultant’s Competitive Negotiation Act, which was designed to provide procedures for state and local governmental agencies to follow the employment of professional service consultants to make the contracting for professional services, according to the Attorney General of the State of Florida.