2013 april boe response

7/28/2019 2013 April Boe Response

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BEFORE THE MARYLAND STATE BOARD OF EDUCATIONJANIS SARTUCCI, ET AL. *

Appellants *v. *

MONTGOMERY COUNTY *BOARD OF EDUCATION*Respondent*

* * * * * * * * * * * * *

COUNTY BOARD MEMORANDUM REPLYTO APPELLANTS' OPPOSITION TO MOTION TO DISMISSOR, IN THE ALTERNATIVE, MOTION FOR SUMMARY AFFIRMANCEAs requested by letter dated March 18,2013, the Board of Education of Montgomery

County ("County Board") submits the following in reply to Appellants' Opposition to theCounty Board's Motion to Dismiss' or, alternatively, Motion for Summary Affirmance.Appellants contend that the County Board has "offered nothing to show that the MEEC 2012-14contract covers the Local Board's December 11, 2012, resolution to purchase 2,000promethean brand interactive white boards." Opposition, p. 1.

First, Appellants have the burden of production; that is, Appellants bear the burden ofproducing factual evidence to support their conclusion that the MEEC 2012-14 contract doesnot cover Promethean boards. The burden is not on the Appellee to prove that the MEECcontract covers the purchase authorized by the County Board on December 11,2012. "It is ageneral rule that in the absence of evidence to the contrary, administrative officers will bepresumed to have properly performed their duties and to have acted regularly and in a lawful

'Based on lack of standing and failure to provide any facts in support of their conc1usory allegations that theMEEC contract does not cover the purchase of bulk quantities of Promethean products or is otherwise illegaland/or unenforceable.


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manner." J ohnstown Coal & Coke Co. v.Dishong, 198Md. 467, 474,84 A.2d 847 (1951).Appellants' January 10,2013, letter of appeal contained no evidence to support their

conclusion that theMEEC contract does not cover Promethean boards, much less evidencesufficient to overcome the presumption that the action of the County Board in approving thepurchase was a lawful one. In their March 13,2013, Opposition, Appellants seem to recognizetheir utter lack of any factual support for their appeal and attempt to remedy that critical failingwith astatement they attribute to theUniversity of Baltimore's Director of Procurement. Thestatement is not under oath and, in fact, is not even signed by the alleged author of the

statement. There is no evidence, other than Appellants' unsupported assertion, that such astatement was made or the specific query or queries to which the Director was responding. Theassertion, on such acritical point, iswholly insufficient to overcome the presumption that theaction of the County Board was alawful one.

Second, Appellants are simply wrong as a factual matter. One or more representativesfromMontgomery County Public Schools ("MCPS") were members of the committee thatdeveloped the specifications for the RFP. Exhibit A, attached hereto. One of the stipulations inthe RFP was that the resulting contract would be an indefinite quantity contract. Id. One ormore representatives from MCPS were on the committee that evaluated the 41 proposalsreceived in response to the solicitation. Exhibit A, p. 2 of Attachment B. Contrary toAppellants' unsupported assertions that "Promethean products were not included in the MEEC2012-14 contract.= the response to the RFP specifically includes "Promethean" as one of the

2Contained in their January 10, 2013, letter of appeal on page 1("Promethean products were not specificallyincluded in the MEEC 2012-14 contract") and repeated in their March 13,2013, Opposition on page 2("Promethean products were not included in the MEEC 2012-14 contract").2


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peripherals offered to MEEC participants in Group 6. Exhibit B, p. 127, attached hereto.Appellants' snide comment that the "Local Board imagines that the public can be fooled intobelieving that acontract exists, when in fact, none exists," is unwarranted and, again, factuallyincorrect. Opposition, p. 2.

Appellants say that "[a] contract is a legally binding document that can beproduced,read and signed by the parties" and that, "[i]n this case, aLocal Board contract [cannot] be readand reviewed by the public .... " Id. Appellants' statements completely ignore the statute.'that explicitly authorizes county boards of education in Maryland to purchase off contractsawarded by other public agencies or by intergovernmental purchasing organizations, such as

theMEEC contract. As noted in the County Board's memorandum submitted in response tothis appeal and in support of the County Board's Motion to Dismiss or, in the alternative,Motion for Summary Affirmance, at page 4, the contract was awarded by the UniversitySystem of Maryland Board of Regents. The contract that Appellants contend does not exist isattached hereto as Exhibit C.

In conclusion, assuming arguendo, that either there is no contract, as Appellantscontend, or there is no MEEC contract fromwhich the authorized Promethean board purchasecan bemade, as Appellants contend, then staff would be forced to return the County Board withan amendment so that the resolution authorizes the purchase from aviable contract, as it didwhen the school system was unable to complete the purchase under Maryland contract050B7800023 before it expired. See, County Board Memorandum, Exhibit 1, submittedpreviously. Such acircumstance perhaps would make the County Board's action an ineffective

3This provision of law, 5-112(a)(3) of the Education Article, was noted in the County Board's memorandum inresponse to the letter of appeal and in support of the County Board's Motion to Dismiss or, In the Alternative,Motion for Summary AffIrmance. Memorandum, p. 4. 3


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one because the purchase could not bemade, but it still would not make the County Board'saction an illegal one.

This appeal should bedismissed for lack of standing and failure to allege facts tosupport the conclusory allegations in the appeal andlor failure to allege facts upon which therequested relief could or should be granted. In the alternative, the County Board's decisionshould be summarily affirmed.

/~(__.__-1Wiifh S. Bresler/'/Carney, Kelehan, Bresler, Bennett, &Scherr, LLP10715 Charter Drive, Suite 200Columbia, Maryland 20144Attorneys for the Board of Education ofMontgomery County

CERTIFICATE OF SERVICE

~~ dith S. Bresler

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2013 april boe response

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