Job Order Contracts Require Owner Direct Management and Leadership

JOC Programs can delivery 90%+ of repair, renovation, and minor new construction projects on-time, on-budget, and to everyone’s satisfaction.  That said Job Order Contracts require owner direct management and leadership.

This appears to be an example of what can happen if appropriate JOC Program oversight is not provided?


Source:  http://www.latimes.com/local/lanow/la-me-edu-lausd-overbilling-lawsuits-20180222-story.html

L.A. Unified rushed to rebuild cafeterias, then fought for years to recoup excess costs

L.A. Unified rushed to rebuild cafeterias, then fought for years to recoup excess costs
L.A. Unified was pleased that revamped cafeterias, including this one at Bravo Medical Magnet, have time-saving features, such as grab-and-go cabinets with hot or cold food. But the district sued contractors, alleging they overcharged for their work. (Christina House / Los Angeles Times)


For the Los Angeles Unified School District, the $37-million Cafe L.A. project at first seemed like a stunning success. In about 18 months, 64 school cafeterias had been gutted and transformed so that students could be served faster — with more time to eat and more healthy options to choose from.

Then the district’s auditors took a look at the books and concluded that the construction had come at too high a cost.

The three companies that had done the work, the auditors told school officials, had violated their contracts by overcharging for equipment and services, charging for unnecessary equipment that was never purchased and using different, less expensive materials than they had said they would.

The school district sued, launching nearly six years of litigation. So far, it has won almost $11 million in settlements and judgments, though that number could go up or down. Some rulings are still pending and there’s an upcoming trial, the latest of several.

Going after the money was a high-risk move for the nation’s second-largest school system, which faces financial challenges so serious that some officials question its future solvency. The targeted contractors — and their insurance companies — had resources to dig in and fight back. They also had motivation, since adverse decisions could make it hard for them to get other California public works contracts.

The district’s legal costs in the cases exceed $1 million, although officials hope to get most of it back. Overall, judges and juries to date have sided with the school system.

This month, a Los Angeles Superior Court jury awarded L.A. Unified $855,000 from Chicago-based F.H. Paschen — though the company’s attorney claimed partial victory because the district failed to get its legal fees paid or win damages for 43% of its claims.

For the most part, F.H. Paschen has not fared well, with the district winning judgments, including interest, totaling $5.04 million.

In a 2014 decision that guided future awards, Los Angeles Superior Court Judge Richard L. Fruin Jr. ruled that F.H. Paschen not only had earned more profit than its contract allowed but also had charged for more equipment than it installed. In some instances, the firm charged for fractions of items — such as one-fourth of a cabinet for keeping food warm — that could be sold or used only as complete units, the court ruled.

“The district sought and was awarded the difference between what it paid … and what it should have paid had the proposals been properly priced,” said David M. Huff, who was part of the legal team representing the school system.

The district also has won judgments, including interest, totaling $5.03 million from Torres Construction, while MTM Construction paid it $900,000 in a settlement.

MTM, which is based in the City of Industry, admitted no wrongdoing in the settlement, and the other two companies are still fighting in court. Lawyers for F.H. Paschen have argued in part that a series of L.A. Unified managers not only approved their proposals but also ordered the company to write them in the way that they did.

“At no point did F.H. Paschen overcharge the district for its work,” said attorney Marion T. Hack, who represents that contractor. “Any insinuation or statement otherwise would be false.”

“There was never any criticism of Torres during the time the work was being performed, either in terms of the pricing or the quality of work,” said attorney Andrew Harris, who represents the Los Angeles company.

The construction that led to the litigation came about when L.A. Unified set out to speedily solve one of its long-standing problems. For decades, many school cafeterias hadn’t been able to meet demand efficiently. Students waited in long lunch lines and ended up without enough time to eat. Many were skipping lunch altogether, relying on fast food or unhealthy snacks.

Addressing the cafeteria crunch became part of a broader healthy eating campaign that included banning the sale of sodas, hiring a master chef to develop healthier menus and serving breakfast in the classroom.

Students such as Brandon Sanchez, a ninth-grader, can make use of multiple lines and "grab-and-go" choices to get food faster at Maywood Center for Enriched Studies, which opened this school year.
Students such as Brandon Sanchez, a ninth-grader, can make use of multiple lines and “grab-and-go” choices to get food faster at Maywood Center for Enriched Studies, which opened this school year. (Brian van der Brug / Los Angeles Times)


The new cafeterias allowed for multiple lines in which students could quickly grab prepackaged offerings from cabinets that kept food hot or cold. They were not set up for cooking; food was prepared and packaged in central kitchens and then trucked to campuses.

To get the cafeterias ready quickly — and to try to save money — the district used what is known as job order contracting. It was a first for California school districts, though it is not uncommon for government projects.

To be eligible for the cafeteria work, contractors competed to be included in a group of available companies. They had to agree to follow a catalog that set prices and and a set amount of markup or profit.

Job order contracting has been known to work well when a project includes many similar jobs with small or midrange costs. In L.A. Unified the maximum for a single job was set at $1 million.

The project launched in March 2008. Construction began within six months and all 64 cafeterias were finished by September 2009.

When the project began, the three contractors already were getting a lot of work in a $20-billion districtwide effort to build, repair and modernize campuses, which had begun in 1997. F.H. Paschen and Torres, a company founded in 2001, each won about $120 million in contracts for projects across the school system, according to L.A. Unified. The contracts for MTM totaled $22.3 million.

In this 2014 photo, cafeteria worker Andrea Jimenez, left, keeps a food cabinet stocked as a student grabs items prepared in a central kitchen and then trucked to Bravo Medical Magnet High School in Los Angeles.
In this 2014 photo, cafeteria worker Andrea Jimenez, left, keeps a food cabinet stocked as a student grabs items prepared in a central kitchen and then trucked to Bravo Medical Magnet High School in Los Angeles. (Christina House / For The Times)

 

The Cafe L.A. project seemed likely to open the door to more opportunities for these companies, including future cafeteria makeovers at hundreds of other schools — until the series of audits by the district’s inspector general. The audits examined job-order contracts for cafeteria work as well as for other projects, by these companies and others.

“Some of the job orders were overpriced and unreasonably priced, but still approved,” auditors wrote in a 2011 report. Twelve of 17 sample projects exceeded proper costs by 77% on average, they concluded.

District officials made significant changes to the contracting program and decided to sue the three companies over the cafeteria work.

In his 2014 ruling for the district, Judge Fruin made note of school officials’ shortcomings in oversight.

F.H. Paschen, Fruin wrote, “has plenty of ammunition for its arguments” that the district bore responsibility.

In reconstructing events, Fruin noted that an L.A. Unified representative had instructed F.H. Paschen to prepare a proposal that would “mirror” one made by Torres for its share of the work. F.H. Paschen, its attorneys argued, took this to mean that it should charge L.A. Unified what Torres was charging — which led to more expensive proposals.

In his ruling, Fruin quoted a company attorney, who said, “We manipulated the contract…. We freely admit that, to match what we were supposed to do. That is exactly what we were instructed to do [by L.A. Unified] and we did it.”

L.A. Unified managers then approved these proposals, as they were doing with Torres and MTM. District managers also signed off on the completed work, and the district has not challenged its quality.

Still, Fruin concluded that the district had the right to seek remedies after the audit findings. He quoted the testimony of Tim Stone, an F.H. Paschen senior contract manager, that he was surprised at the prices L.A. Unified was willing to accept: “I felt that they would see that and from there, if that wasn’t what they wanted, I was reasonably sure, based on their track record, that they would more than likely reject it. But I don’t know what they do over there. I don’t have any control over what they do.”

The inspector general for L.A. Unified, which oversaw the audits, also evaluated the possibility of collusion between the companies and wrongdoing or negligence by L.A. Unified employees. But these investigations were either inconclusive or dropped. The auditors reached their conclusions as the major school construction program was winding down.

“By the time this was discovered, most if not all of the district employees and consultants involved had moved on,” said Mark Miller, an L.A. Unified attorney. “I believe there was a reduction in force and there was no one left to discipline.”

“Some district employees and consultants could have done a better job,” said Huff, the L.A. Unified legal team member. But “just because a district employee or consultant misses something … that doesn’t mean that the contractor gets to get away with it.”