The recently-concluded Nurnberg Roofing LLC vs. Cordell Public Schools lawsuit has opened up additional questions about the school district’s contracting procedures and the board of education’s oversight of Superintendent Brad Overton.
A Washita County jury ruled Jan. 8, 2020, holding Cordell Public Schools in breach of contract and ordering the district to pay $31,700 to fulfill the contract. The jury also awarded Nurnberg their attorney’s fees, which have yet to be approved by the judge.
The suit stems back to a 2016 contract in which the school district hired Nurnberg Roofing to replace the roof on the south side of the school’s gymnasium. The district claimed Nurnberg was in default of the contract because the roof didn’t, in their opinion, provide proper drainage, which meant the roof didn’t meet the manufacturer’s specifications as required by the contract.
Lee Nurnberg argued that the roof was built to the specifications given to him by Overton, and in accordance with the guidelines of Carlisle, the manufacturer. After the roof was installed, a Carlisle representative inspected the roof and issued the 20-year warranty, certifying the roof was up to the manufacturer’s specifications. Both Harry Coates, the expert witness hired by Nurnberg, and Ed Owen, the expert witness hired by Cordell Public Schools, testified that the roof met Carlisle specifications. Both parties testified to the fact that no leaks or other flaws with the roof had been reported since it was installed in 2016.
The jury agreed with Nurnberg, and rendered their verdict in their favor for $31,700 plus legal expenses.
CONTRACTING ISSUES
During his testimony, Overton mentioned the school district had issued two contracts to Nurnberg Roofing for roof replacements for the school gymnasium. In his testimony, Overton said he knew he did not have sufficient funding to redo the entire roof, so he had it bid in four sections.
The school board, on March 7, 2016, approved one contract to Nurnberg Roofing LLC for repairs to the south and east sides of the gymnasium roof for $61,400.
But the contracting was not handled in the manner approved by the board. Two days later, on March 9, 2016, Overton signed two separate contracts with Nurnberg Roofing. The first, for $29,700, was for the east side and the second, for $31,700, for the south. Two separate purchase orders for those projects were issued on that same date.
Oklahoma law requires any public construction contract in excess of $50,000 to be handled in accordance with the Public Competitive Bidding Act of 1974. That bidding process requires the school district to advertise the project as available for bid, ensure the project documentation is provided to the bidders, and accept only sealed bids for the project. Once the bid deadline has been reached, the school district is required to hold a public bid opening and award the contract to the lowest responsible bidder within 30 days of the opening. The act also requires a five percent bid bond, performance, statutory, and defect bonds for the full amount of the contract, as well as various other affidavits. None of this was performed, as the contracts were, in contravention of the board’s approval, split into two separate purchases.
The law further specifically precludes a contracting agency or officer from splitting contracts in order to avoid the public competitive bid process.
Title 61 O.S. Section 131 reads: “No contract shall be split into partial contracts for the purpose of avoiding the requirements of this act. All such partial contracts shall be void. Any person who knowingly violates the provisions of this section shall, upon conviction, be guilty of a misdemeanor punishable by imprisonment in the county jail for not more than one (1) year, or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.”
DESIGN ISSUES
During his testimony, Overton also told the court he made the decision not to engage an architect or roof consultant on the project in order to “pinch pennies.” He indicated that a dollar figure threshold existed in law that would trigger the necessity of hiring an architect for the job.
According to “An Administrator’s Guide To School Construction Projects” published by the Oklahoma State Department of Education, an architect is required if the cost of the project is more than $158,000. The same publication also indicates a legal requirement to engage an architect if, “The occupancy is Assembly (A-1), (A-4), or (A-5). Assembly (A-1) includes areas for the production or viewing of performance arts, typically with fixed seating. Assembly (A-4) includes areas for viewing indoor sporting events and activities with spectator seating.”
But no architect was engaged to design the new roof.
THE AFTERMATH
To date, Cordell Public Schools is legally responsible to pay Nurnberg Roofing the full $31,700 of the original contract for the south roof. The amount of Nurnberg’s legal fees for which the district will be responsible has yet to be determined by the judge. Additionally, through Dec. 31, 2019, the school district had paid more than $43,000 in their own legal expenses, which does not include the final accounting for January, the month of the trial, or any work the district’s attorneys will do in the hearings to determine reasonable fees for Nurnberg’s attorney. The judgment amount, including Nurnberg’s fees when determined, will be added to the Washita County tax rolls and result in a tax increase for everyone owning property in the Cordell School District for a period of three years.
Last year Overton signed a three-year contract extension with the Cordell Public Schools Board of Education, meaning he has two years remaining after the end of the current school year. The board, currently comprised of Ronnie McKee, Dale Selman, David Thain, and Mike Reimer, is charged with overseeing Overton’s actions. Nocona Cook has been appointed to the board, but has yet to be sworn in.