By Adam Pagnucco.
In January, Superintendent Thomas Taylor moved to partially terminate MCPS’s problem-plagued electric bus contract. The contract, originally signed by one of Taylor’s predecessors (Jack Smith), was the subject of an inspector general report and multiple lawsuits. It never delivered its expected benefits and MCPS was forced to acquire more diesel buses as a result. After MCPS revealed to the county council that the vendor, Highland Electric Trucking (HET), had racked up $1.5 million in performance fees, Taylor stopped delivery of new buses but kept the district’s maintenance arrangement with HET to service its existing fleet of 285 electric buses.
That arrangement may now be endangered because the State Board of Education has ruled that the original contract was illegally awarded.
The impetus of the state board’s decision was a contract protest filed by AutoFlex Fleet, Inc., a competitor that lost the bid to HET. That protest has been moving through the board and the courts in various forms for four years. Eventually, the proceedings began to include references to the fact that two of the four officials who scored the bids for MCPS (MCPS Department of Transportation Director Todd Watkins and Assistant Director Charles Ewald) later admitted to and were convicted of felony theft and misdemeanor misconduct of office stemming from financial exploitation of an HET affiliate (ATB). State’s Attorney John McCarthy called the theft by Ewald “one of the worst financial crimes to ever victimize Montgomery County Public Schools.” AutoFlex alleged that this created bias in the process that affected the award of the contract.
In a decision issued on November 5, the state board agreed.
The board’s decision contains a lengthy description of the bidding process and the role of the two admitted criminals in it. Also mentioned are two other bid scorers, Shela Plank, an Energy Management Engineer, and David Ramsay, Director of Transportation for the Howard County Public School System, who were not involved in the criminal case and were untainted by it. Pay attention to the contrast in the scoring by Watkins and Ewald (the criminals) and Plank and Ramsay (who had nothing to do with the crimes) in this account by the board.
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Here, two out of four members of the RFP evaluation committee were local board employees who were convicted for actions involving violations of local board procurement and financial protocols, in a scheme that involved ATB, a named subcontractor/partner/integral team member to HET with which HET shared business offices through at least January 31, 2025 (i.e., the date of the local board letter partially terminating the HET contract for convenience). At a minimum, the participation of these individuals in the electric bus procurement process created an appearance of impropriety regarding the recommendation of award to an entity that proposed as an integral team member the very bus contractor they were exploiting and had exploited for years. This would have necessarily affected the ability of Mr. Ewald and Mr. Watkins to act with integrity, impartiality, without favoritism, and without a conflict of interest.
The participation of these individuals tainted the bus procurement evaluation process, such that no one can know what the outcome of the evaluation process would have been. In other words, no one can know the “real” scores and real winner of the competition had this taint not existed. See Yellow Transportation, MSBCA Docket Nos. 2374, 2380, 2381, 2382, & 2389 at p.29 (Apr. 9, 2004) (noting that the taint of two out of six evaluation committee members made it impossible to know what the outcome of the evaluation process would have been had the taint not existed). However, the scores of Mr. Ramsay and Ms. Plank, who have been accused of no wrongdoing whatsoever, are instructive – if their scores alone had been used, HET did not win the competition. The award to HET was unreasonable, arbitrary, and in violation of the local board’s own Procurement Manual.
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The state board concluded, “For all of these reasons, we find that the local board’s decision was arbitrary, unreasonable, and illegal. Accordingly, we reverse the decision upholding the award of the contract to HET.”
The decision was signed by nine board members. Three were listed as absent.
MCPS has thirty days to appeal the decision to the county’s circuit court.
Superintendent Thomas Taylor bears no responsibility for signing the contract, which originated under one of his predecessors. He has tried to minimize MCPS’s financial exposure to it. However, he has retained HET to maintain the existing buses, possibly because they have proprietary technology that would be challenging or impossible for another company to service. If the board’s ruling requires him to terminate the district’s maintenance relationship with HET, that’s a significant problem.
Consider the fact that MCPS uses more than 1,300 buses to transport 103,000 students. That means roughly 20% of MCPS’s fleet is accounted for by its electric buses. If MCPS has to replace those buses with purchases, leases or contracting, that’s a huge lift and not something that can be done quickly.
It’s another big headache for MCPS, and another one originating from past decisions. Let’s see how this one winds up getting resolved.
The state board’s decision can be downloaded below.