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Table 1: Information in
Contract Files Appendix I: Detailed Audit Objectives Appendix II: Contract Information Summary Appendix III: DCPS's Statement Describing Noteworthy Accomplishments Appendix IV: DCPS Comments Appendix V: Written Representations Not Provided by the DCPS Chief Executive Officer Appendix VI: Written Representations Not Provided by the DCPS Chief Operating Officer Appendix VII: Written Representations Not Provided by the DCPS General Counsel Appendix VIII: Written Representations Not Provided by the DCPS Chief Financial Officer Appendix IX: Written Representations Not Provided by the DCPS Chief of Capital Projects Appendix X: Written Representations Not Provided by the DCPS Former Chief of Contract Administration Table 1: Information in Contract Files
Back to place in audit – Back to top of page Appendix I: Detailed Audit ObjectivesOur contract with the District of Columbia Financial Responsibility Management Assistance Authority requested an assessment of the following procurement process elements. Planning Assess whether DCPS's CIP workload for Fiscal Year 1997 was accurately projected and that sufficient emphasis was given to enhancing competition. Staffing Assess whether DCPS contracting staff responsible for awarding CIP contracts possessed a suitable skill mix (experience, education level, training, etc.) to handle requirements. Policies and Procedures Assess whether DCPS (1) provided effective policies and procedural guidance to those involved in CIP contracts; and (2) required its contracting officers to document contract actions and provide specific guidance and direction to project officers to help them carry out their responsibilities. Specifications Assess whether (1) DCPS had a formal and effective method for defining its minimum needs with realistic delivery dates and budgeting for the systems, supplies, and services needed to carry out the CIP; (2) specifications and statements of work were complete and accurate and contained only what was needed to meet DCPS's mission; (3) the statements of work and specifications unnecessarily restricted competition; and (4) prior to issuing solicitations, adverse market conditions, time constraints, and personnel resource constraints were properly considered. Procurement Requests Assess whether (1) procurement requests contained the specifications, approvals, and other information essential for effective procurement of required construction needs; and (2) certification of funding availability was obtained prior to solicitation and/or contract award. Solicitation Process Assess whether (1) proposed CIP requirements were advertised as required; (2) a standardized solicitation format was consistently used to procure CIP requirements; (3) realistic delivery schedules were used and sufficient bid preparation times were allowed; and (4) evaluation criteria were limited to those essential to evaluate proposals. Evaluation/Source Selection Assess whether (1) DCPS used an effective evaluation and source selection process that ensured that the bids/offers of awardees selected were most advantageous to the District of Columbia, and that DCPS gave fair and equitable treatment to all potential bidders/offerors; (2) for negotiated procurements, DCPS established and properly followed policies and procedures for:
(3) for sealed bidding, DCPS established policies and properly followed procedures for:
Pricing Assess whether DCPS (1) provided for adequate cost and price analysis to determine the reasonableness and fairness of the price to be paid; (2) used independent cost estimates of, or most probable cost to the District of Columbia, in its analysis for major procurements and whether the assumptions used in its cost evaluation process were reasonable; and (3) paid consistently comparable prices for similar type work. Negotiations Assess whether negotiations were carried out in accordance with applicable regulations and policies so as to provide fair and reasonable treatment to offerors and to arrive at equitable terms and conditions. Award. Review. and Approval Assess whether (1) the DCPS's procurement policies and procedures ensured that awards were made in the best interest of the District of Columbia and whether they complied with applicable laws, regulations, and policies; (2) letter contracts or notices to proceed were properly used and definitized within required timeframes; (3) unsuccessful bidders were notified and that bid guarantees were promptly returned; (4) DCPS provided an appropriate and timely response to protests; and (5) noncompetitive contracts were reviewed as required and the reason(s) for the lack of competition were determined and documented. Performance Monitoring/Measurement Assess whether (1) DCPS had a process which effectively monitored and measured contractor performance against the terms of the contract and ensured that the contractor performed in accordance with all terms and conditions of the contract; (2) DCPS performed periodic evaluation and documentation of contractor performance; (3) DCPS had a system for inspection and acceptance of contract deliverables and other contractual documents; (4) DCPS ensured that the contractors were applying adequate skills and resources to the contract for successful performance; (5) adequate and appropriate resources and management attention were assigned to the contract administration function; (6) DCPS staff obtained adequate (or any) consideration when contractors failed without proper cause to meet delivery schedules; (7) DCPS had a process to ensure that the District was receiving products and services which met contract specifications; (8) claims and disputes were processed in a timely manner; and (9) guaranties/warranties for the quality of work required were employed, offered, and were the standard for the industry. Contract Modification Assess whether (1) the DCPS procurement system provided for the proper use, control, documentation, pricing, negotiation, and award of contract modifications and change orders and that change orders/contract modifications were not employed as a methodology to avoid competitive procurement; (2) change orders and modifications contained cost limitations as appropriate and were definitized as promptly as possible; (3) change orders and modifications violated the basic integrity of the contract type, risk allocation, or performance requirements; (4) each contract modification was properly documented including (a) a determination that the modification was the proper instrument, (b) a cost or price analysis was performed, (c) funds were determined to be available, and (d) negotiations were conducted and documented; (5) modifications for work were supported by (a) justifications for other than full and open competition, (b) a statement of work, appropriate approvals, and (d) a synopsis, when appropriate; and (6) DCPS documented the reasonableness of any requests for contract modifications which were approved. Construction Contracts Assess whether, overall, (1) DCPS had an effective program to ensure that construction projects and contracts were properly planned, designed, specified, estimated, solicited, awarded, and monitored; (2) construction contracts were planned and scheduled to consider contingencies; (3) pre-solicitation notices, where required, were properly issued; (4) data from preliminary studies of conditions were used in preparing government cost estimates and obtaining bids; (5) specifications were accompanied by relevant background studies and reports to provide full knowledge and disclosure to contractors; (6) specifications and drawings were reviewed thoroughly to ensure proper mix of all technologies and to avoid claims resulting from ambiguities; (7) construction projects were provided with appropriate on-site technical and administrative support to avoid delay and cost escalation; (8) all contractors complied with Davis- Bacon Act and other applicable laws and regulations; (9) reports of progress, inspections, performance, Davis-Bacon Act compliance, etc., were timely; (10) changes and modifications were pre-priced to the maximum extent possible; and (11) statutory cost limits were strictly adhered to. Appendix II: Contract Information Summary
Appendix III: DCPS'S Statement Describing Noteworthy AccomplishmentsFor the first time in the history of the D. C. Public Schools, a major capital improvement plan was funded and implemented which ensures a safe and conducive environment for children s learning. In less than six months, DCPS repaired or replaced roofs on 61 schools. Ten (10) mechanical/boiler projects have been completed. These capital projects totaled approximately $40 million. This work was accomplished with a minimal staff of twelve people. All work will be fully warranted for contractor workmanship and manufacturer materials, guaranteeing a substantially improved school facility. This accomplishment cannot be understated given that previous school capital projects annually numbered ten (10), at a cost of $12 million with a full compliment of 40 or more staff. Additionally. this work was completed during the Court matter involving Parents United. The Court's involvement required emergency actions which precluded the implementation of a normal capital improvement programs (sic). In a nutshell, the mandates of the Superior Court inflamed the already emergency situation. All available staff worked seven days a week supporting and documenting this effort. Appendix IV: DCPS CommentsSet forth below is the response of D.C. Public Schools (DCPS) to the Cotton draft audit results, dated December 12, 1997. The comments address the emergency that faced the school system as well as specific responses to particular statements or findings found in the report. A. General CommentsDCPS concurs with the findings of the draft audit results that refer to the need for additional documentation and which are critical to the maintenance of contract files. Steps have already been taken to resolve these problems. These actions are described in the report. There are serious problems with the remaining findings and recommendations of the draft audit results. Many of the findings are not based on the facts and/or a thorough understanding of applicable laws, regulations, and/or Authority orders. The report is fundamentally flawed because it: (a) is factually inaccurate; (b) is premature, in that it was conducted prior to the closing out of the projects and the contract files; (c) does not reflect the emergency, especially the impact of Parents United, et al. v. Barry, et al., the fire code case; (d) does not take into consideration the relationship between the Financial Responsibility and Management Assistance Authority (Authority) and the Emergency Transitional Education Board of Trustees (Trustees); and, (e) misunderstands and ultimately rejects the emergency procurement procedures that were followed as a process. In addition, assumptions; that have been conclusively rebutted by senior managers' statements were excluded from the report, while statements attributed to these managers. but which were not made, were included. Further, a critical finding of law (i.e., that the FAR was a statutory requirement for these procurements) is in error. Another significant problem with the audit is its failure to consider DCPS as an instrumentality of the Authority as well as the broad authority granted to the Trustees as agents of the Authority. In order to complete the roofing projects as expeditiously as possible, emergency procurement procedures were required and utilized. These procedures were clearly authorized by the Order of November 15, 1996, that created the Trustees and which provided relief from existing procurement requirements. However, when presented with the use of the Board of Education Procurement Rules and the DCPS Procurement Manual as the basis of the process utilized in this emergency, the audit concludes that no procurement process was followed. This is erroneous and simply not true. Instead, Cotton makes the erroneous conclusion of law that the FAR was a legal requirement. The audit is premature in that it reviews contract files for projects that remain open. It was begun in October – prior to the close out of projects (most of which were completed in September) and the contract files. It must be remembered that, out of necessity, the same staff that would have been available to respond and assist the auditors with materials and explanations concerning this matter were occupied with extensive court documentation and preparation for court hearings. It is a departure from commonly accepted audit practices to audit contract files which are still open. As a result of the contract files remaining open in order to be fully documented, Cotton asserts that the contract files lack documentation. Clearly, a finding that there is insufficient documentation at this time is inevitable if documents remain to be placed in the file. The impact of this is evidenced by the comment of Cotton's auditor, Mr. Ed Fritz, who stated in a briefing held Wednesday, December 10, 1997, that never in his professional experience had he audited open contract files. 1. Emergency CircumstancesOn November 15, 1996, the Authority declared DCPS to be in a state of emergency and issued an order that established a nine member Emergency Transitional Education Board of Trustees (Trustees) and named Julius W. Becton, Jr, as Trustee and Chief Executive Officer-Superintendent (CEO). The authority of the existing Board of Education was limited to charter schools and advising the Trustees. The incumbent Superintendent was removed. As noted in the draft report, the Trustees assumed responsibility for a school system that had about 150 facilities. Most were old (some dating from the 1800's) and in a worsening state of deterioration and disrepair. Conditions had reached the point where many buildings were unsafe. Preventative and routine maintenance had been neglected for years. Further, capital funds were needed to respond to the repairs required by the Parents United. et al. v Barry. et al. litigation. Fifty-two (52) roofs were replaced or repaired during a seven (7) week period. (An additional eight (8) roofs, including West and Tyler, were replaced by GSA.) The significance of this unprecedented achievement cannot be ignored. No more than ten (10) roofs had been replaced in prior years. The 1997 work was permanent and protected through warranties. The November Order included broad procurement authority exempting the Trustees from the D.C. Code procurement requirements and those of the D.C. Municipal Regulations (which include the Board of Education regulations). The CEO was granted broad authority to enter into such contracts which he deemed "necessary or appropriate." As the Authority is aware, DCPS had to repair/replace roofs on 61 school buildings. The roof projects were completed in a seven-week period because of the restraints placed on the school system by the Court in the Parents United case, particularly the requirement that the buildings be evacuated during any roof repair or replacement. An understanding of the unusual and extreme crisis situation faced by DCPS during the summer of 1997 is the essential starting point for any competent audit; however, this audit fails to appropriately assess the impact of the emergency. The emergency produced a planning period that was extremely short. During the period from January through April of 1997, several activities were underway simultaneously: the Long Range Facilities Master Plan was developed and the proposal for school closings was developed. The initial capital staff was built during the time frame of April through July, 1997. Full funding for FY 1997 was made available during that same period. The impact of the Parents United lawsuit cannot be overstimulated: it was as a direct result of this litigation that the emergency conditions existed that affected the procurement actions that are the subject of this audit. The Parents United lawsuit began in 1994 in the D.C. Superior Court as an action to require the Fire Department to inspect school facilities on a regular basis and the Mayor and Council of the District of Columbia to adequately fund the DCPS capital budget to eliminate fire code violations. When the lawsuit began, there were in excess of 18,000 fire code violations found in the schools. Some were minor, others (if not abated) could have resulted in closure of the building. This litigation eventually became the entire focus of, and budget related to, facilities. Court orders in Parents United totally disrupted the planning and procurement processes. Twice yearly inspections and Court review became daily and unplanned inspections resulting from Court orders arid Fire Department responses to (sometimes anonymous) citizen complaints. Over a four-month period from July, 1997 through October, 1997, the Court issued forty-two (42) orders, most of which dealt with efforts by DCPS to get school buildings opened which had been closed by the Court or Fire Department. This effect of Parents United was most evident when the Court held on July 11, 1997, that no work could be done on a school roof while the building was occupied. This action could nut have been anticipated. There was no way that the planning and procurement processes could continue as planned. This situation was further exacerbated when the Fire Department and Court began to close individual schools that were not included in the roof replacement plan. Not only did work cease as a result of the July 11 order, but the major roof replacements could not begin until the buildings that housed summer school and other programs were evacuated. In addition, the Court directed new completion dates for roof repairs and, in fact, imposed fines where DCPS was unable to meet these Court ordered completion dates. For the first time in DCPS history, the school system opened three weeks late. This was a direct result of the extraordinary actions taken by the Court. The opening of school did not end the emergency. Schools began to be closed on an almost daily basis. There was no way to predict which school would be targeted next. The closures, in most instances, were not as a result of fire code violations. However, with each, several emergency actions were required: (1) the relocation of students, staff, and program, (2) the preparation of buildings (such as Douglass JHS and the University of the District of Columbia) to receive the dislocated program, and (3) the repair of the vacated buildings as quickly as possible to return the students and staff. None of this was planned and could not have been planned. Each was a new emergency that required immediate emergency action. Contracts had to be put in place immediately. The school system was in a deeper state of emergency. DCPS did not take its actions in a vacuum. The Authority recognized the severity of the situation when it directed the Trustees to take whatever steps were necessary to correct the fire code violations and to open the buildings as boon as possible. The Authority was beefed on several occasions regarding the status of the fire code repairs, the replacement roofs, the Court action and the steps being taken to get the buildings open. In several meetings, the Authority repeatedly stated its support for the actions of the Trustees during this period and literally exhorted the Trustees to do whatever was necessary to get the job done and to open schools Authority staff aided the school system to resolve issues related to the emergency, particularly the procurement actions that were necessary. (An example, as noted in the report, authorization of post-contract review.) 2. Unavailability of Full Funding.The lack of funding affected the reestablishment capital improvements office which had been substantially reduced by the previous administration. The report states on page 6 [Final report: page 16] of the Results that "[w]e were unable to gain access to records needed to assess accurately when funds became available to DCPS and the Authority; consequently, we cannot conclude that this factor was the underlying cause of the emergency mode of operation " DCPS challenges this since the funding (or lack thereof) history was provided to the auditors in the document entitled "Frequently Asked Questions." As described in that document, full funding was not available until mid-July 1997. This, coupled with the rebuilding of the capital projects office, were the reasons that the procurement process could not begin any earlier. II. Comments on Specific Report LanguageA. Results in Brief1. Paragraph 4 (page 1) - The audit concludes that "the procurement system did not meet the statutory and regulatory needs of DCPS."
2. Paragraph 5 (page 1) - "The emergency procedures followed did not comply with any established procurement policies, rules, or regulations."
3. Paragraph 1 (page 2) [Final report: paragraph 4 (page 2)] -- "Because DCPS did not adopt or consistently follow generally recognized procurement policies and procedures, we concluded that management controls were not adequate to protect against misappropriation of assets, errors, waste, or abuse."
B. BACKGROUND1. Paragraph 1 (page 2) [Final report: paragraph 1 (page 3)] -
2. Paragraph 1 (page 3) [Final report: paragraph 4 (page3)] - "A 'Long Range Facilities Master Plan' was drafted by February 1997...."
3. Paragraph 2 (page 3) [Final report: paragraph 5 (page 3)] - "By February, the window for executing a normal and sound contracting process had begun to close....[b]y this time, the window of opportunity to conduct procurement and contracting following normal and sound contracting practices was essentially shut."
4. Paragraph 3 (page 3) [Final report: paragraph 1 (page 4)] - "The contracts
awarded by DCPS during 1997 were, for the most part, awarded under emergency or 'fast
track' procurement procedures, which are
D. AUDIT RESULTS [There is no paragraph C in the response] 1. Paragraph 5 (page 6) [Final report: paragraph 5 (page 8)] - "We found no evidence that the Board of Trustees (1) formulated its own policies, procedures, rules and regulations as the Authority's Order directed, (2) adopted the Board of Education's policies, procedures, rules and regulations, or (3) was aware of the Public Law 104-194 requirement to follow or intended to follow Federal procurement rules. . . . In our opinion, however, Public Law 104-196 required Federal procurement rules and regulations to be used until the Authority prescribed new rules and regulations."
2. Paragraph 1 (page 11) [Final report: paragraph l (page 14)] - ". . . DCPS reissued the IFB on July 11....
3. Paragraph 4 (page 13) [Final report: paragraph 5 (page 16)] - "Although we found no direct evidence of fraud...."
4. Paragraph 5 (page 13) [Final report: paragraph 1 (page 17)] - "For these procurements, Capital. Projects Office (CPO) personnel performed essential functions such as preparing work specifications, developing estimates, soliciting potential contractors, opening responses to price requests, negotiating with potential contractors. and selecting contractors."
5. Paragraph 4 (page 14) [Final report: paragraph 4 (page 18)] - "Most (if not all) of the 31 DCPS-managed contracts were finalized after notices to proceed had been issued to the contractors and work had begun "
6. Paragraph 4 (page 14) [Final report: paragraph 4 (page 18)] - "For these 28 contracts, the delay from notice to proceed date to the contract award date ranged from one to 76 days and averaged 35.5 days." (Emphasis added.)
7. Paragraph 4 (page 14) [Final report: paragraph 4 (page 18)] - "Not only was this risky for DCPS, but the rush to get contractors started quickly caused confusion about contract terms".
8. Paragraph 5 (page 14) [Final report: paragraph 3 (page 19)] - "In addition to the fact that in some instances individual project managers selected potential bidders, received their bids, and determined the winning bidders, these same project managers may also have prepared at least some of the cost estimates."
9. Paragraph 6 (pages 14-15) [Final report: paragraph 5 (page 19)] - "We noted 17 instances (out of 24 contracts requiring bonds) in which, according to documentation in the contract files, bids were accepted without bid bonds and 21 instances (out of 24 contracts requiring bonds) in which contractors were instructed to proceed with work before they had obtained the required performance and payment bonds, potentially placing DCPS at considerable financial risk."
10. Paragraphs 1 and 2 (page 15) [Final report: paragraphs 3 and 4 (page 20)] - The auditors cite in these paragraphs memoranda regarding two proposed change order requests as the bases for the conclusion that these change orders were not executed.
11. Paragraph 3 (page 15) [Final report: paragraph 5 (page 21)] - "[The] lack of management control and accountability creates the possibility for DCPS to commit more funds than it has available. The resulting confusion about availability of funds may also contribute to DCPS's [sic] reported history of slow payments to contractors."
12. Paragraph 8 (page 15) [Final report: paragraph 7 (page 22)] - "Sound contracting management procedures dictate that projects be closed as expeditiously as possible. Delays in closing contracts and making final contract payments may result in DCPS prolonged disputes with contractor and may make it more difficult for DCPS to contract with qualified contractors at reasonable prices in the future."
13. Paragraph 1 (page 16) [Final report: paragraph 3 (page 21)] - ". . . [W]e [noted noted a consistent pattern of contractors being instructed to proceed with the basic contract work prior to DCPS obtaining a certification that funds were available."
14. Paragraph 3 (page 17) [Final report: paragraph 4 (page 23)] - According to Cotton, contractors were required to comply with a number of laws. Further, the audit states that "[c]ontract files lack evidence that DCPS assured that these compliance requirements have been met."
15. Paragraph 2 (page 18) [Final report: paragraph 1 (page 25)] -- "Because DCPS did not adhere to a single set of established procurement policies and procedures in carrying out the Fiscal Year 1997 CIP procurements, no system of management controls was placed in operation. Consequently, we concluded that controls were inadequate to protest assets and prevent errors and irregularities."
16. Paragraph 3 (page 18) [Final report: paragraph 2 (page 25)] - "As described elsewhere in this report, DCPS did not follow any established procurement policies and procedures in carrying out the Fiscal Year 1997 CIP procurements, and DCPS did not monitor (during contract performance) contractor compliance with applicable laws, rules, and regulations that were incorporated into the contracts."
17. Paragraph 4 (page 18) [Final report: paragraph 3 (page 25)] -- "Because of our audit, we concluded that DCPS did not have an effective procurement system in place during Fiscal Year 1997 for the CIP projects, and the procurement system did not meet the statutory or regulatory needs of DCPS."
18. Paragraph 5 (page 18) [Final report: paragraph 4 (page 25)] - Matters that the auditors were "unable to fully evaluate and resolve . that were noted during the audit" have been conveyed to the Authority via a separate communication.
For an explanation of what appendices V through X represent, see the audit. Appendix V: Written Representations Not Provided by the DCPS Chief Executive OfficerDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's Chief Executive Officer-Superintendent, I was responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts. 2. DCPS has made available to you all –
3. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our general counsel or outside counsel have advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency, or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees of CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate ..." To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. In view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997) –
12. Prior to closing contracts and making final contract payments, I plan to ensure that punch lists are complete, contractor and manufacturer warranties are obtained, all contract compliance requirements are met, any required price adjustments are made, and contract files are complete. 13. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 14. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 15. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 16. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 17. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Julius W. Becton, Jr. Appendix VI: Written Representations Not Provided by the DCPS Chief Operating OfficerDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's Chief Operating Officer, I was responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts. 2. DCPS has made available to you all –
3. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our general counsel or outside counsel have advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency, or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees or CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate ... " To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. In view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997) –
12. Prior to closing contracts and making final contract payments, I plan to ensure that punch lists are complete, contractor and manufacturer warranties are obtained, all contract compliance requirements are met, any required price adjustments are made, and contract files are complete. 13. I had anticipated that operating under emergency conditions and procedures would increase costs by about 30 percent. 14. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 15. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 16. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 17. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 18. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Charles E. Williams Appendix VII: Written Representations Not Provided by the DCPS General CounselDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's General Counsel, I was not directly responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts, but I was involved in some of these decision-making processes and am knowledgeable about the Fiscal Year 1997 CIP procurement and contracting process. 2. DCPS has made available to you all –
3. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our outside counsel has advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency, or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees or CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate ..." To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. In view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997 –
12. Prior to closing contracts and making final contract payments, I plan to ensure that punch lists are complete, contractor and manufacturer warranties are obtained, all contract compliance requirements are met, any required price adjustments are made, and contract files are complete. 13. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 14. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 15. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 16. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 17. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Cecilia Wirtz, Esquire Appendix VIII: Written Representations Not Provided by the DCPS Chief Financial OfficerDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's Chief Financial Officer, I was not directly responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts, but I am knowledgeable about the Fiscal Year 1997 CIP procurement and contracting process. Since October 1, 1997, I have been responsible for administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts. 2. DCPS has made available to you all –
4. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our general counsel or our outside counsel has advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency, or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees or CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate " To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. In view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997 –
12. Prior to closing contracts and making final contract payments, I plan to ensure that punch lists are complete, contractor and manufacturer warranties are obtained, all contract compliance requirements are met, any required price adjustments are made, and contract files are complete. 13. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 14. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 15. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 16. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 17. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Edward Stephenson Appendix IX: Written Representations Not Provided by the DCPS Chief of Capital ProjectsDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's Chief of Capital Projects, I was responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts. 2. DCPS has made available to you all –
3. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our general counsel or outside counsel have advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency, or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees or CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate ..." To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. On view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997 –
12. Prior to closing contracts and making final contract payments, I plan to ensure that punch lists are complete, contractor and manufacturer warranties are obtained, all contract compliance requirements are met, any required price adjustments are made, and contract files are complete. 13. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 14. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 15. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 16. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 17. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Terry Hernson Appendix X: Written Representations Not Provided by the DCPS Former Chief of Contract AdministrationDCPS LETTERHEAD December 15, 1997 Cotton & Company, LLP In connection with your performance audit of the District of Columbia Public Schools (DCPS) Fiscal Year 1997 Capital Improvement Program (CIP) contracts for the purpose of evaluating the economy, efficiency, and results of the contracting and procurement process, I confirm, to the best of my knowledge and belief, the following representations made to you during your audit. 1. As DCPS's Chief of Contract Administration during Fiscal Year 1997, I was responsible for the planning, management, and administration of the contracting and procurement process related to the Fiscal Year 1997 CIP contracts. 2. DCPS has made available to you all –
3. There have been no –
4. There are no –
5. There are no actual or alleged procurement or contracting improprieties, irregularities, conflicts of interest, or evidence of fraud that our general counsel or outside counsel have advised us of in connection with the Fiscal Year 1997 CIP projects. 6. There are no material transactions related to the Fiscal Year 1997 CIP projects that have not been properly recorded in DCPS's accounting records. 7. DCPS has complied with all aspects of Congressional and Financial Responsibility and Management Assistance Authority mandates, orders, resolutions, and directives related to the Fiscal Year 1997 CIP projects that would have a material effect on the economy, efficiency or results of the procurement and contracting process in the event of noncompliance. 8. The November 1996 Control Board Order states that provisions of the DC Code and Municipal Regulations governing procurement "shall not apply" to the Board of Trustees or CEO. The Order states that the Board "shall adopt" policies, procedures, rules and regulations with regard to carrying out the Order; and that the Board of Trustees "may incorporate in its policies, procedures, rules and regulations of the Board of Education as it considers necessary or appropriate ..." To date, the Board of Trustees has not adopted, in writing, any policies, procedures, rules and regulations as the Order stipulated. In lieu of written procurement policies, procedures, rules, and regulations and in view of the emergency nature of the Fiscal Year 1997 CIP projects, we generally followed what we considered to be emergency procedures. Emergency procurement practices were followed ensuring competition and the award of contracts in the best interests of the school system. 9. In view of the emergency nature of the Fiscal Year 1997 CIP projects, DCPS decided to use a negotiated procurement process (wherein contracts were awarded to the most responsive offeror) rather than an advertised procurement process (wherein contracts would be awarded to the lowest responsive, responsible bidder). 10. DCPS did not require contractors under the Fiscal Year 1997 CIP projects to seek advance approval of subcontractors and we did not require contractors to identify all subcontractors they planned to use or did use in carrying out the contracts. 11. Regarding the indictment of two former DCPS officials and a DCPS contractor (in or about June 1997 –
12. I estimated that operating under emergency conditions and procedures would increase costs by about 25 to 30 percent. 13. All work on the Fiscal Year 1997 CIP contracts was substantially complete by September 18, 1997. 14. Some change orders on the Fiscal Year 1997 CIP contracts are still being negotiated and change order requests will be processed as negotiations are completed. 15. There were no bid protests on any of the Fiscal Year 1997 CIP procurements. 16. The only dispute to date on any of the Fiscal Year 1997 CIP procurements was the situation involving Davis-Bacon Act compliance on the Built-Up Roofing contract for work at West Elementary School. 17. No events have occurred and not been documented for inclusion in the files made available to you that would have a material effect on the economy, efficiency, or results of the procurement and contracting process. I will inform you immediately of any matters coming to my attention that would materially alter or affect any of the above representations. Christopher Lipscombe |
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