MPDP battles EBO complaint

Promises: kept or broken? — Part 2
The man who drafted the Equal Business Opportunity agreement between Community Maritime Park Associates and Maritime Park Development Partners says that Scott Davison has never followed through with the agreement or the commitments that he made in his 2008 presentation to the CMPA Board of Trustees.

“I patterned the EBO agreement after the Covenant with the Community and tried to put teeth into it” says George Hawthorne. CEO of Diversity Program Advisors, Inc.  “I was brought in at the last minute. All the guidelines and policies that you see on the MPDP website I drafted.”

Hawthorne says that he did put in a bid to be the project manager for the EBO, but Davison didn’t want to pay what Hawthorne thought as a fair price. Sam Horton was offered the position, but he later turned it down.

“Sam told me that he really wasn’t qualified and wasn’t being paid enough to take on all the EBO responsibilities,” Hawthorne says.

The EBO project management position was then given to Tony McCray and the Escambia-Pensacola Human Relations Commission, but Hawthorne claims that MPDP hasn’t let them to the job properly.

“Tony doesn’t have access to construction documents,” says Hawthorne. “They are keeping him on the outside.”

Hawthorne filed an official complaint against MPDP on Aug. 31 for “consistently and with willful intent and gross negligence violated the ‘spirit,’ intent and factual terms and conditions of the EBO Agreement and other affiliated documents.” He requested that MPDP be terminated as project coordinator.

Though CMPA attorney Ed Fleming reported after an investigation that he believed a material breach by MPDP of its obligations under the various EBO agreements, the EBO Committee of the CMPA chose not to forward the complaint to the full board.

Hawthorne says that he has reviewed the video of Davison’s June 2008 presentation to the CMPA board. “Nothing is true, not one thing,” says Hawthorne.

“Land Capital ceases to exist. Bruce Cutright (whom Davison described as the project manager and who be the CMPA contact for the day-to-day) is long gone. Joe Williams (Target Group) told me that wouldn’t let Scott ruin his reputation.”

In his complaint Hawthorne asserted:
1. Davison has tried to eliminate the materials in its outcome reporting.
2. He has not made any requirements for the mentor-protégé relationships and should have.
3. He has not made any requirements for joint ventures and should have.
4. He has not executed the items as stated in his outreach plan and should have.

MPDP response to Hawthorne Complaint, dated Sept. 22

1. The Minority and Local Participation reports include the required calculation of minority participation as a percentage of total contract amounts. For informational purposes a supplemental calculation is provided which reports the minority participation as a percentage of the services and materials which are available by minority contractors to provide. (i.e.–steel from overseas is not included in this supplemental calculation).
2. The requirement for mentor-protégé relationships are only applicable …”where economically feasible…” To require that mentor-protégé relationships be submitted simultaneously with the bid is not economically feasible. The project is faced with a greatly reduced number of bidders due to the additional requirements of the EBO program and stated preference for local contractors. Requiring the mentor-protégé relationships be placed at the time of bid submittal would place additional hurdles for perspective bidders resulting in still fewer bids and less competitive pricing. The project’s economics mandate that the bidding process should not be cumbersome so as to discourage bidders from participating. However, once the contractor is selected, elective mentor-protégé relationships are being developed with MPDP and EBO Program Managers as the facilitators.

3. As to joint ventures the response is similar as above – just insert “joint ventures” for “mentor-protégé relationships.”

4. Items 1-10 listed in Section 10 are all elective in nature. Each begins with the words “The Developer may…” However MPDP has implemented many of the program elements listed in the section, although none are necessary to be in compliance with the EBO Agreement.

Findings of Ed Fleming regarding Hawthorne complaint

Fleming writes that Land Capital Group/MPDP was awarded the development contract over the objections of the CMPA consultant “in large measure, due to the unique EBO promises made by the Developer, and the heart and soul of those promises centered around the ‘Contractor’s Academy.’” Their proposal contained an policy statement and inclusion plan commitment in which Davison stated: ”At the end of the project, our success will be measure by what we say (Our Policy) and what we do (Our Plan).”

Fleming says that the intent of the Contractor’s Academy was to increase the supply of minority contractors who could bid on the CMP work. MPDP claimed the increased competition would “promote lower prices, reduces cost and stretches taxpayer dollars.”

According to Fleming, the MPDP plan was to conduct seminars, assist in creating joint ventures and that Bruce Cutright would be the ”key person” for the Development Team. Fleming writes, “Mr. Cutright has been conspicuously absent from the project since its inception.”

Davison also stated that the MPDP would provide financial assistant to minority contractors. He represented that it had “financial capacity through the resources of its financial partners, JP Morgan and Land Capital Group, had more than $2 billion.” Fleming writes that Davison later conceded that JP Morgan never agreed to be a partner.

Fleming also writes that MPDP has controlled the Contractor’s Academy Committee and it is non-functioning. The Developer has failed to produce EBO documents upon request and not met its promise of transparency of its minority inclusion efforts.

In his summary of findings, Fleming states, “There has been a material breach by the Developer of its obligations under the various EBO agreements made as an inducement to obtain this project.”

There is no evidence that MPDP held a single seminar or class to train or instruction potential minority contractors or workers. The Developer doesn’t have the staff to do so.

Land Capital Group can’t help minority contractors with financing because of the many judgments and liens against it. It can’t help them get bonding, because MPDP could get bonding for itself.

Fleming offered three remedies:

1. Withholding funds until the Developer complies.
2. Deducting amounts otherwise due to the Developer to cove damages caused. This could include deducting from Developer fees the $250,000 that the Developer promised to spend on the Contractor’s Academy.
3. Termination of the CMPA-MPDP agreement.

I will post MPDP’s response to the Fleming report tomorrow.  Read Fleming report contains copy of complaint and MPDP letter: