Rupp’s bluffs

On Tuesday the Trib’s Education reporter, Sarah Horner, talked to the attorney representing the School District and Craig Hunter who represents the taxpayers. The School Board’s lawyer, Kevin Rupp, sounded confident Sarah told me as did our attorney. I pointed out to her that this is posturing. No attorney wants to suggest defeat before heading into court especially when the public is paying close attention. If, for instance, Mr. Rupp sounded insecure dozens of contractors, and six school board members could lose heart.

Let’s take a close look at some of the things Mr. Rupp said in Sarah’s story.

“The notable thing is that [the plaintiffs] have not alleged the school district violated any law,” lawyer Kevin Rupp said.”They have only alleged the school district violated a policy. You can’t sue for violation of a policy.”

OK. So just for the sake of argument let’s assume that a School Board can ignore its own policies. We’ll look at the applicable state law about bidding out contracts. BTW, You can read the entire statute here but to keep this post short I’ve only copied its beginning and bolded the critical words.

123B.52 CONTRACTS.

Subdivision 1.Contracts.A contract for work or labor, or for the purchase of furniture, fixtures, or other property, except books registered under the copyright laws, or for the construction or repair of school houses, the estimated cost or value of which shall exceed that specified in section 471.345, subdivision 3, must not be made by the school board without first advertising for bids or proposals by two weeks’ published notice in the official newspaper. This notice must state the time and place of receiving bids and contain a brief description of the subject matter.

Additional publication in the official newspaper or elsewhere may be made as the board shall deem necessary.

After taking into consideration conformity with the specifications, terms of delivery, and other conditions imposed in the call for bids, every such contract for which a call for bids has been issued must be awarded to the lowest responsible bidder, be duly executed in writing, and be otherwise conditioned as required by law.

This is not the only state statute that governs contracts for school boards but note that it is a state law and not a School Board policy.

Mr. Rupp also split hairs about the difference between a “bid” and a “proposal” saying that what JCI and ISD 709 did was enter into negotiations for a proposal:

Rupp said he reads the policy differently.

“The complaint repeatedly says ‘bids,’ but the policy talks about proposals, and those are two significantly different things in the eyes of the law,” Rupp said. “On bids, you have to accept the lowest responsible bidder. But on proposals, you sit down and negotiate. It looks to me that the entire project was put out for proposals, and anyone interested could submit one if they wanted to perform the services.”

OK, so, again for the sake of argument let’s say the District and JCI had a proposal going not a “bid.” When was this “proposal” to construct the Red Plan put out for a competitive proposal?
To emphasize the importance of this question let me pull out one phrase from the statute:

“Contracts . . . must not be made by the school board without first advertising for bids or proposals

When did the District advertise for a “proposal” on the construction of the Red Plan? It didn’t. It only advertised for work on the preceeding assessment of facilities. How do we know this? We know it because that’s what the District said when it asked for proposals on the assessment phase.

One of the companies interested in making a proposal on both Phase 1, the assessment and phase II, its implementation, asked about submitting a bid on Phase II. In reply the District sent the question and their answer out to all the competitors:

Q. “Just clarification that you are only asking for a fee for Part I [the assessment] of the project, and not Part II [its construction] at this time for this submittal?”

A “Yes, the District is only asking for a fee for Part I at this time.

So, the only time the District put out a request for a proposal for the Long Term Facilities Plan was for the assessment phase not the implementation [construction] phase. The District never put out a request for proposals on the second phase, ultimately worth $300 millions. at all as required by State law.

You can read the taxpayer’s entire complaint here.

Maybe Mr. Rupp’s argument was a feint and he’s still saving his best stuff for the Judge. Or maybe not.

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