CourtListener 9488635•In the Matter of AutoFlex Fleet Inc.
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In the Matter of AutoFlex Fleet, Inc., No. 0539, September Term 2022. Opinion by Zic, J.
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS – JUDICIAL NOTICE
OF ADJUDICATIVE FACTS BY THE CIRCUIT COURT
A court reviewing an administrative decision does not abuse its discretion in taking
judicial notice, then remanding, when the adjudicative facts concern events that occurred
after the agency issues its decision. Under Md. Rule 7-208(c), a circuit court may
consider evidence outside the administrative record only in instances “permitted by law.”
The judicial notice provisions in Md. Rule 5-201 supplies permission because it allows a
court to consider adjudicative facts outside an existing record “at any stage of the
proceeding,” and a court “shall” do so when “requested” by a party and “supplied” with
the “necessary information.”
Here, the circuit court erred by not taking judicial notice after determining that the
evidence was neither relevant to the case nor “generally known.” Under Md. Rule 5-201,
judicial notice is mandatory when a requesting party supplies the court with “the
necessary information.” The circuit court should have taken judicial notice because
AutoFlex requested judicial notice of facts relevant to AutoFlex’s challenges to the
procurement process, AutoFlex provided the court with the relevant information, and the
Local Board did not dispute the request.
JUDICIAL NOTICE OF ADJUDICATIVE FACTS – COURT PROCEEDINGS
Under Dashiell v. Meeks, 396 Md. 149, 176 (2006), courts may take judicial notice of
another case’s court proceedings “in order to reach a just result[.]” This Court, therefore,
takes judicial notice of the guilty pleas and proffers that are undisputed adjudicated facts
which are prima facie relevant to the instant case.
JUDICIAL REVIEW – REMAND – MARYLAND STATE BOARD OF
EDUCATION PROCUREMENT CONTRACT
Two government officials employed by the Montgomery County Public School System
(“MCPS”) were in a position to influence the instant procurement process at issue as two
out of four evaluators. Both of these individuals deliberately circumvented MCPS
protocols, received criminal convictions related to their government positions, conducted
a long-running theft-scheme, and had an “off-the-books” relationship with an entity
undisputedly affiliated with the bidder who received the contract award at issue. Because
this evidence could impact a factfinder’s view of AutoFlex’s claims that MCPS showed
favoritism, made material mistakes, and that an appearance of impropriety existed in
evaluating the contract proposals during the procurement process, we remand to the
Maryland State Board of Education with instructions to remand to the Montgomery
County Board of Education for administrative review.
Circuit Court for Montgomery County
Case No.: 486843V
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 0539
September Term, 2022
IN THE MATTER OF AUTOFLEX FLEET,
INC.
Friedman,
Zic,
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Zic, J.
Filed: March 5, 2024
* Tang, Rosalyn, J. did not participate in the
Court’s decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.03.21
08:55:39 -04'00'
Gregory Hilton, Clerk
AutoFlex, Inc. (doing business as AutoFlex Fleet, Inc.) challenges the award to a
competing bidder of a $168 million contract (the “Contract”) to develop and implement
“a turnkey bus electrification program and all associated operational infrastructure and
requirements, at or near budget neutral to Montgomery County Public Schools (MCPS)
Department of Transportation (DOT)” over a 12-year period, beginning in 2022. After
procurement proceedings, MCPS awarded the Contract to a newly created affiliate of
Highland Electric Trucking (“HET”), which shared the address of MCPS’s existing diesel
bus vendor, American Truck & Bus (“ATB”). The Contract was affirmed, first by the
Montgomery County Board of Education (the “Local Board”), and then by the Maryland
State Board of Education (the “MSBE” or “State Board”).
In August 2021, AutoFlex petitioned for judicial review in the Circuit Court for
Montgomery County, alleging that MCPS showed favoritism toward HET throughout the
procurement proceedings and made material errors in evaluating and selecting HET from
among the four responding proposals. During that review proceeding, AutoFlex asked
the court to take judicial notice of news reports on November 16, 2021 that MCPS had
publicly announced that the Director and Assistant Director of MCPS’s Department of
Transportation, who managed the bus electrification procurement proceedings and
evaluated all proposals, had been suspended pending referrals for criminal investigation
of financial improprieties involving an unidentified MCPS vendor.
The circuit court denied AutoFlex’s request for judicial notice of the announced
suspensions and criminal investigation, then affirmed the decision to award the Contract
to HET. AutoFlex noted this timely appeal, challenging both the circuit court’s judicial
notice ruling and the underlying administrative decision.
While this appeal was pending, these suspensions and the investigation ripened
into guilty pleas to criminal charges arising from a long-term theft scheme in which DOT
Director Todd Watkins and Assistant Director Charles Ewald deliberately violated MCPS
financial and procurement protocols, which in turn enabled Mr. Ewald to steal hundreds
of thousands of dollars. See infra, Part I. AutoFlex now asks this Court to take judicial
notice that, according to the written proffer supporting Mr. Ewald’s guilty pleas (the
“Ewald Proffer”), after Mr. Watkins arranged for ATB to hold reimbursements due to
MCPS in an “off-the-books account[,]” Mr. Ewald exploited his relationship with ATB
and its president to misdirect payments from that account to himself.
Citing those adjudicated facts and undisputed evidence that Mr. Ewald and Mr.
Watkins were integrally involved in the procurement process resulting in MCPS selecting
an apparent affiliate of the exploited bus vendor as the winning bidder on the electric bus
contract, AutoFlex contends that the supplemented record supports its claims of
favoritism and material mistakes in evaluating the proposals and also establishes an
appearance of impropriety that violates MCPS contracting requirements. In light of such
evidence and errors, AutoFlex asks us to vacate the judgment, enjoin the HET Contract,
and remand to the “Local Board and MCPS for further proceedings.”
We hold that the circuit court erred in denying AutoFlex’s request for judicial
notice on the ground that, in deciding whether to remand, the court lacked authority to
consider evidence that was not in the record presented to the Local Board and MSBE.
2
See Md. Code Ann., State Gov’t (“SG”) § 10-222(h)(1); Md. Rule 5-201(d); Md. Rule 7-
208(c). In addition, the court erred in concluding there was insufficient evidence to
establish either the suspensions pending criminal investigation for financial misconduct
involving an MCPS vendor or an appearance of impropriety based on them. To the
contrary, the suspensions were undisputed, having been publicly announced by MCPS
itself. Moreover, they were prima facie relevant to AutoFlex’s claims that MCPS acted
with improper favoritism and made material mistakes in the procurement proceedings
through which HET was selected as the winning bidder.
Yet we do not rely on the circuit court’s legal error in refusing to consider
evidence of these suspensions because we will grant AutoFlex’s request for judicial
notice of Mr. Ewald’s subsequent guilty pleas and the supporting proffer filed in the
Circuit Court for Montgomery County on May 18, 2023. See Md. Rule 5-201(d)-(f).
These stipulated and finally-adjudicated facts effectively supersede the previously
proffered announcement that MCPS suspended Mr. Watkins and Mr. Ewald pending
criminal investigation into vendor-related financial misconduct. See Md. Rule 5-201(c).
In addition, under these unusual circumstances, we will take judicial notice on our own
initiative of the guilty plea subsequently entered by Mr. Watkins on June 30, 2023, and
the supporting proffer in that case (the “Watkins Proffer”). See Md. Rule 5-201(f).
As MCPS acknowledged when publicly announcing the suspensions and
investigation of its top managers in the DOT, review of such finally-adjudicated facts will
help in understanding whether and how their misconduct in office affected MCPS’s
procurement proceedings, and then to determine appropriate next steps based upon such
3
findings. Because the decision to affirm the Contract may be impacted by the
adjudicated facts establishing that two DOT officials who were integrally involved in
managing MCPS’s procurement proceedings, including evaluating and scoring all four
proposals, then recommending the Contract be awarded to an affiliate of the vendor they
were exploiting, we will remand for further administrative review of AutoFlex’s
challenges. See SG § 10-222(h)(1); Md. Code Regs. (“COMAR”) 13.A.01.05.06.C. On
remand, the MSBE and the Local Board may consider whether Mr. Ewald or Mr.
Watkins materially manipulated MCPS’s procurement proceedings, as AutoFlex
suggests, in applying selection criteria, failing to disclose or consider AutoFlex’s status as
a minority contractor, mistakenly evaluating pricing terms in the proposals, or otherwise
asserting pretextual reasons for selecting HET as the winning bidder.
BACKGROUND
To facilitate review in this Court and after remand, we summarize the proceedings
and pleadings here, then append a timeline of relevant events.
The Procurement Proceedings
MCPS’s Request for Proposal #9462.1 (the “RFP”), issued on August 31, 2020,
sought “responses from responsible companies who have the experience, capability,
equipment and services necessary to provide a turnkey budget neutral school bus
electrification program for . . . the diesel school bus fleet[,]” by October 6, 2020. The
RFP identified Mr. Ewald as “[t]he MCPS project contact[.]” On September 22, 2020,
MCPS responded in writing to 26 questions from bidders, issuing a notice and erratum
addendum to the RFP.
4
In response to the RFP, AutoFlex and three others submitted proposals for the
electrification of MCPS’s bus program. These were reviewed and scored by MCPS’s
“review committee,” which AutoFlex later discovered was comprised of four MCPS
officials, including Mr. Watkins and Mr. Ewald.1 During an informal “debrief” with
MCPS officials, AutoFlex learned that its proposal received the lowest score among the
four bidders.
Procurement Roles of Ewald and Watkins
Mr. Ewald and Mr. Watkins played significant roles in the procurement
proceedings resulting in the award to HET. The RFP identified Mr. Ewald as the Project
Contact. Mr. Ewald and Mr. Watkins served as two of the four evaluators of those
proposals.
As the Ewald and Watkins Proffers detailed below establish, both public officials
had extensive dealings with ATB, while managing the DOT’s diesel bus fleet operations
under ATB’s long-term contract with MCPS. In turn, their official misconduct in those
1
In its brief to this Court, AutoFlex proffers:
In documents provided to AutoFlex by MCPS under the
Maryland Public Information Act (MPIA), the identity of the
evaluators was initially redacted. But based on more recent
responses to a third party’s request under the MPIA, which
were not similarly redacted, AutoFlex learned that one of the
evaluators of proposals was Watkins. ...... The record
submitted to the Circuit Court demonstrated, and the Court
acknowledged, that Watkins and Ewald were two of four
evaluators. []
(Citations to the record omitted).
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dealings, ranging from deliberate disregard of MCPS procurement and financial
protocols, to theft by fraud, created incentives to favor an ATB-affiliate in the
procurement process for the electric bus program.
Both Mr. Watkins and Mr. Ewald noted with approval proposals that included
information from ATB. Both gave their highest scores to ATB-affiliate HET, with Mr.
Watkins awarding a 79 out of 100 points, which was 39 points higher than his score for
AutoFlex, based on sparse and generalized comments, including that “HET seems able to
meet the timeline of first deployment next summer,” when, according to AutoFlex,
“Watkins had no way to know whether it would, and in fact it did not[.]” For the HET
proposal, Mr. Watkins noted: “Very good proposal. Uses Thomas Built Buses.”
According to Mr. Watkins, HET’s “[r]esponse demonstrates considerable understanding
of the turn-key and budget neutral requirements” and offered a “[p]lan for vehicles,
deployment schedule, construction plan, and all-inclusive pricing” to “make this a very
feasible proposal.” Although HET had only “deployed to one small school district” and
listed “[o]nly one reference,” Mr. Watkins noted that its “[t]eam of subcontractors and
financial backers seem very qualified” and its “[s]ubcontractors and Duke Energy have
reliable references.”
Mr. Watkins gave AutoFlex a score of 30 points, in contrast to the 70 points he
scored HET, on the “Capability” factors (encompassing: “Completeness of Response,”
“Related Past Experience and Qualifications,” “Contractor’s understanding of the scope
of services as demonstrated by the response to meet MCPS’s requirements,”
“Reasonableness and feasibility of the Contractor’s proposed detailed work plan and
6
implementation schedule,” and “Availability of Contractor’s professional staff to meet
timeline for contract execution” which counted for 80% of the total score). Mr. Watkins
noted:
• AutoFlex’s “[r]esponse is incomplete.”
• AutoFlex had “[n]o experience in school bus[es,] but [s]ignificant experience
in general fleet.”
• AutoFlex’s “rollout plan” was “[c]onfusing[,]” indicating “limited
understanding of needs of district.”
• AutoFlex’s “[i]mplementation schedule, except for first year, is very hard to
follow. Plan lacks detail” and that the “[p]roposal showed adherence to year
one timeline, but not sure beyond that.”
• With respect to proposed pricing, worth 10% of the score, Mr. Watkins gave
AutoFlex a zero, noting that its “[p]ricing plan seems considerably expensive.”
In his November 12, 2020 evaluations, Mr. Ewald scored HET’s proposal an 87,
which was 16 points higher than his score for AutoFlex, basing the difference on a
slightly higher capability score but significantly higher scores for company references
and proposed pricing. In attached comments, Mr. Ewald cited HET’s “very
comprehensive response” featuring “engineering site plans,” “onsite solar design,” and
“vehicle specifications –Thomas C2.” With respect to “Contractor’s understanding of the
scope of services,” Mr. Ewald noted that “HET provided responses to each item.” He
identified the “Cost” as $38,500 for year one with “2% escalator, 12 years.” For
AutoFlex (identified as “Auto-Fleet”), Mr. Ewald noted the “[c]omprehensive response”
including “partner information from” identified suppliers including Lion Bus, Thomas
Built Buses, and American Bus. Although AutoFlex had no references from “school
districts,” Mr. Ewald noted its “MD Transit Authority” reference. For the “scope of
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services” factor, Mr. Ewald apparently copied by mistake the same note he made on
HET’s evaluation. He wrote “HET provided responses to each item.” He criticized
AutoFlex’s “5 year plan” as “[n]ot very detailed” with no “information on project team.”
He projected monthly and annual costs for Thomas and Lion buses, plus Level 3
chargers, using question marks for annual figures for the buses above $44,000 and for the
charger above $20,000.
On February 23, 2021, MCPS’s Superintendent of Schools advised that DOT
Director Watkins “report[ed] learning at several national meetings that the three major
American school bus manufacturers expect that within 5 to 10 years, all orders for new
school buses will be for electric buses” and that “this shift to electric school buses will
cause the cost of the new technology to significantly decrease over time.” According to
Superintendent Jack R. Smith,
Highland Electric Transportation, Inc., Hamilton,
Massachusetts, was the offeror selected following the Request
for Proposals evaluation process. A contract has been
negotiated and is recommended for approval with HET
MCPS, LLC, a wholly owned subsidiary created by Highland
Electric Transportation, Inc., specifically for this project.
Budget neutrality is possible over time because this vendor
will invest in the otherwise high up-front costs of purchasing
electric school buses with the plan to recoup that investment
over time through decreasing vehicle prices, less expensive
fuel (electric vs. diesel), and maintenance savings. MCPS
will continue to spend what otherwise would be spent
purchasing, operating, fueling, and maintaining equivalent
diesel school buses until the investment is recouped. Then
MCPS will spend less than what otherwise would be spent on
equivalent diesel buses. As far as MCPS and the vendor
know, this is the first budget neutral, non-grant dependent,
school bus fleet electrification plan available. This is the
8
leading edge of the trend that is expected to sweep through
the school bus industry.
In a memorandum dated February 23, 2021, accompanied by a proposed
resolution, MCPS’s Superintendent recommended that, after “[a]ll proposals were
reviewed by the Request for Proposals review committee in accordance with
Montgomery County Public Schools standard procurement procedures[,]” the Local
Board should approve the contract negotiated with HET MCPS, LLC, for “an initial four-
year contract . . . for 326 electric school buses and all associated charging infrastructure,
charge management, electric, and maintenance expenses, with a Fiscal Year 2022 cost of
$1,312,500.” Over “the total lifetime contract” of 12 years “for the 326 buses[,]” the
MCPS Superintendent advised the Local Board that the “contract cost . . . is
$168,684,990, which is projected to be recovered through funds that otherwise would
have been spent on diesel school bus purchases and operations[.]”
AutoFlex’s Appeal to the MSBE
AutoFlex noted a timely appeal from the Local Board to the MSBE. In support, it
pointed out that among the pertinent policies of the Local Board is the following written
statement in MCPS’s “Procurement Manual” regarding the appearance of impropriety:
Public purchasing embraces a fundamental obligation to the
general public to ensure the procurement is accomplished in
accordance with the intent of the laws enacted by the
appropriate legislative body. Therefore, all MCPS
procurement procedures are conducted in a fair and impartial
manner, with avoidance or appearance of impropriety.
-All qualified vendors have access to public business
-No offeror is excluded arbitrarily or capriciously
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-Competition is sought to the maximum degree feasible
-Specifications are designed to reflect procurement needs of
the purchasing body rather than to favor a particular
vendor[]
In addition, AutoFlex presented the following reasons that the Contract should not
be affirmed.
1. “CERTIFIED MFD”:2 Although AutoFlex “is a Maryland-based MDOT
certified minority business enterprise and a VA verified service-disabled
veteran-owned small business[,]” as “clearly stated in the proposal[,] . . . MCPS
ignored the fact of [AutoFlex’s] status as an MFD and awarded no points as
required.” Instead, according to “the Bid Activity Report dated February 23,
2021, the Board was incorrectly informed that no MFD bid had been received.”
2. “LOWEST BID”: AutoFlex complained that “the lack of scoring information
provided during the MCPS debrief” prompted it to file “a protest to request the
evaluation and scoring that determined the lowest-price bidder.” Based on the
Contract price for 326 buses, AutoFlex argued, the HET proposal “equals
$517,438.62 per each OEM Thomas Built bus, an amount significantly higher
than [AutoFlex] offered for the same products and services in the line items
contained in its proposal.” In support, AutoFlex pointed out that “over the past
twelve years,” ATB had the “approximately $200 Million Dollars in contracts
to purchase diesel school buses” and that “[t]he HET MCPS award is based on
performance by its designated subcontractors, (OEM Thomas-Built, American
Truck and Bus Dealer, and OEM Proterra Charging infrastructure),” which
would provide only “high-voltage Level-3 DC capable buses and equipment
which are significantly more expensive to install at all five of the MCPS School
Bus Depot Locations.” According to AutoFlex, its proposal featured line items,
pricing options, and both Thomas Built and Lion Bus alternatives, all of which
were lower priced options than HET proposed when compared on a line-item
basis over the full Contract period. To the extent that MCPS made mistakes in
comparing AutoFlex’s pricing to HET’s proposal, those errors reflect the
admitted failure of DOT officials to “seek State technical assistance” when
evaluating proposals featuring, for the first time, both fixed price and leasing
alternatives for electric vehicles. AutoFlex objected that the low scoring of
AutoFlex’s proposal was “improper” and “not in compliance with State Law.”
2
“MFD” stands for a “Minority/Female/Disabled” business proposal.
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3. “FAVORITISM”: AutoFlex objected to the award of “this contract to an
entity that did not exist on the MCPS RFP due date of October 6, 2020, did not
submit a proposal because it did not yet exist and, coincidentally, has as the
address of its registered agent, the same address as the American Truck and Bus
dealership that has been providing diesel buses to MCPS for the past twelve
years.” According to AutoFlex, “public records” show “‘that HET MCPS,
LLC’ is listed at the same address as both American Truck and Bus dealership
and Thomas Built in Annapolis[]” which held the existing diesel bus contract
with MCPS. Moreover, just one day after being awarded this Contract, HET
was awarded a State of Maryland grant of $817,000 toward new electric buses.
Citing concerns about these known links among ATB, HET, MCPS, and the
State grants, AutoFlex complained “that favoritism was given to Highland and
the HET MCPS it formed . . . on January 8, 2021.”
Additional indicia of favoritism, AutoFlex says, arises from MCPS’s acceptance
of HET’s proposal “to deploy only 86 Thomas Built Level-3 DC Electric
Buses” during the 2022 and 2023 school years, even though “MCPS has
historically deployed 120 diesel buses each fiscal year[.]” In AutoFlex’s view,
there was a significant gap between what and when HET would be required to
deliver under this Contract and what would be required to comply with the RFP
criteria that any proposal would have to become “‘Budget Neutral.’” Because
under HET’s proposal, “only 86 of the budgeted 240 diesel buses will be
replaced” with electric buses within the first years of the Contract period, that
would mean that 154 diesel buses would “not be replaced in accordance with
the MCPS DOT’s 12-year life cycle replacement policy” and “will require
additional repairs, maintenance, and the much more expensive diesel fuel.” In
comparison, AutoFlex argues that its “proposal offered a transition from 240
diesel buses to 240 electric buses over the next two fiscal years[,]” achieving
“budget neutrality . . . as well as significant savings in repair, maintenance, and
fuel costs.” Moreover, AutoFlex’s proposal “offered Level-2 AC and Level-3
DC electric buses that could have been delivered with Vehicle-to-Grid (V2G)
bidirectional capabilities in the initial two fiscal years” whereas “MCPS
negotiated” with HET “for only 86 high voltage buses – not currently available
with V2G utility experience in the Jouley Thomas Built model, as was an
MCPS RFP ‘Budget Neutral’ requirement.”
4. “PROTEST”: When AutoFlex filed a pre-Contract protest, it learned of “the
determining factors” and “concerns” that “could have been answered or
clarified if MCPS had simply called [AutoFlex] to ask[,]” but “MCPS
procurement officials never called or asked . . . any question during the RFP
evaluations and scoring process.” Moreover, during a telephone debrief
requested by AutoFlex, “Todd Watkins stated that he did not have any previous
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experience in evaluation of Line Itemed, Firm Fixed Leasing” like the proposal
submitted by AutoFlex.
5. “COMAR 11.19.02”/LION BUS COMPLIANCE: AutoFlex challenged
MCPS’s assessment that its proposal for a Lion bus model did not meet its
“burden of proving the composite exterior as strong as steel[,]” arguing that
“MCPS DOT’s evaluation and scoring of Lion bus’s composite exterior was . . .
simply incorrect as a matter of fact.” According to AutoFlex, the composite,
non-steel Lion bus model did comply with this strength requirement, as
confirmed by the Director of the United States Department of Transportation,
FMVSS Office of Vehicle Safety Compliance. Moreover, MCPS “simply
ignored” that AutoFlex included a Lion bus model “offered in . . . steel” and
that its Thomas Built bus alternative was “the same . . . as the [HET] proposal
but at a lower price.” Nor should there be any penalty against AutoFlex for
including such an option in its proposal, given that it was heeding MCPS’s
express statement that even though there was not yet “an electric version of . . .
current conventional Type A bus, used primarily for special education,” MCPS
expected such buses “to be included in this project when a suitable platform
becomes available.”
MSBE Decision
On July 28, 2021, the MSBE, unaware of the official misconduct by Mr. Ewald
and Mr. Watkins, issued its decision affirming the HET Contract. See MSBE Opinion
No. 21-40. In pertinent part, the MSBE found that among the four bidders, MCPS’s
“evaluation team ranked HET as first choice and [AutoFlex] as last choice[,]” based on
the criteria specified in the RFP, including “Completeness of Response,” “Related past
experience and qualifications,” “Contractor’s understanding of the scope of services as
demonstrated by response to meet MCPS requirements,” “feasibility of the Contractor’s
proposed detailed work plan and implementation schedule” and “Cost.”3
3
Although neither the MSBE nor the Local Board have challenged AutoFlex’s
standing to challenge the award to HET, we note that under the statutory and regulatory
framework that governs other categories of state procurements at the Maryland State
Board of Contract Appeals (“MSBCA”), a disappointed bid protestor is not an interested
(continued)
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The MSBE detailed AutoFlex’s numerous challenges following MCPS’s
announcement in December 2020 that it selected HET’s proposal. On December 14,
2020, MCPS advised AutoFlex of the following in a pre-award “debrief meeting”:
- Overall technical scoring ranked [AutoFlex] fourth out of
four responses
- Apparent experience with general fleet not school buses
- Several details not included such as details regarding bus
parking at schools
- No implementation timeline
- The infrastructure plan or bus layout not detailed for any of
the depots
- Difficult to determine how program would be budget
neutral based on proposed pricing
- Did not discuss alternate methods of charging
- Proposed a bus (Lion bus) that is not authorized in MD
party with standing to challenge such an award unless that party can establish that if the
protest were sustained, it would “be in line for [the] award.” Montgomery Park, LLC v.
Maryland Dep’t of Gen. Servs., 482 Md. 706, 731 (2023) (cleaned up). Cf. COMAR
21.10.02.01.B.(1) (defining “[i]nterested party” as “an actual or prospective bidder, . . .
that may be aggrieved by the solicitation or award of a contract”); COMAR
21.10.02.01.B.(3) (defining “[p]rotestor” as “any actual . . . bidder, . . . who is aggrieved
in connection with the solicitation or the award of a contract and who files the protest”);
COMAR 21.10.02.02.A. (“An interested party may protest . . . against the award or the
proposed award of a contract subject to this title”).
In any event, even if that heightened standard for standing that the MSBCA
applied was applied here, AutoFlex may establish standing by challenging the fairness of
the procurement proceedings on multiple grounds that undermine its last-place ranking
among the four bidders. Most notably, AutoFlex contends that its ranking was predicated
on procurement irregularities ranging from undisclosed criteria, to biased and otherwise
erroneous evaluations. These include last-place scores from the Project Contact and
DOT Director, whose adjudicated misconduct establishes actual and apparent impropriety
that taints their evaluations. Also, AutoFlex was erroneously not credited for having an
MFD certification. If AutoFlex is successful in proving its allegations that its rankings
resulted from a corrupt or otherwise defective procurement process, and that the school
bus electrification contract was awarded to a less qualified or disqualified bidder, then
AutoFlex might be able to establish that it would be next in line, as the best qualified
remaining bidder.
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On January 8, 2021, the MSBE recounted, the “Director II Dept. of Material
Management” responded to AutoFlex’s challenge by identifying specific “factors in the
non-award to” AutoFlex:
1. In your RFP response in section 2.0 Electrification
Timeline or Section 5.0 Proposed Turnkey Fleet
Implementation Program, of Volume 2, MCPS Fleet
Electrification Price List, offered no detail on a proposed
roll out plan beyond year one.
2. The proposed “MCPS Fleet Electrification Price List”
does not provide a clear indication of how the pricing
structure would be budget neutral over time for MCPS.
3. The Lion bus is not approved under COMAR and
according to results of a recent attempt for state approval,
the burden of proving the composite exterior as strong as
steel has not been met.
The MSBE next acknowledged that AutoFlex submitted an appeal letter
challenging the evaluations and comparisons of its proposal. In response, the Chief of
Engagement, Innovation and Operations denied the bid protest, citing the inadequacy of
AutoFlex’s proposal and stating that its “year one pricing is significantly higher than the
selected vendor’s pricing[,]” that its “proposal was deficient of many details required in
the RFP[,]” and that “[t]he Lion bus proposed by [AutoFlex] is not compliant with
COMAR.”
When those challenges were unsuccessful, the MSBE found, the MCPS
“Superintendent made a formal recommendation to the local board to award the contract
to HET.” Yet AutoFlex’s status as a certified disabled veteran contractor was not
14
considered by MCPS because its “bid activity report did not indicate that MCPS received
any minority bids.”
On the merits, the MSBE rejected AutoFlex’s challenges to the Contract,
concluding as follows:
Pricing: The MSBE held that MCPS reasonably concluded
that AutoFlex’s “pricing did not meet the requirements of the
RFP” because it lacked “pricing for fuel and maintenance
costs necessary to demonstrate budget neutrality[.]” In
addition “[t]he record does not support” that AutoFlex’s
pricing was lower than HET’s pricing. Specifically, the
MSBE concluded that AutoFlex “is mistaken that the contract
price awarded to HET is $129,359.65 per bus per year”
because even though “[t]he local board resolution awarding
the contract to HET is for a period of four years . . . the
overall pricing for the cost of 326 buses of $168,684,990.00 is
based on Article 4 of the RFP, which states each fleet shall be
provided ‘for a term of twelve years’, which works out to
$43,119.88 per year.”
“Technical and Best Qualified”: The MSBE ruled that the
Local Board reasonably refused to accept the Lion bus
proposal because it is “not currently approved for use in
Maryland under existing State Board regulations.” Although
“[t]he evaluation committee noted [AutoFlex’s] experience in
general fleet management,” it “also noted it had no
experience in the management of electric school buses” and
“experience is just one of the seven factors . . . used to rank
the best qualified responder.” MCPS’s “evaluation team
ranked [AutoFlex] fourth in technical scoring” because it
“found numerous deficiencies in the proposal including
missing details of . . . no infrastructure plan or bus layout for
any of the depots, no discussion of alternate methods of
charging, and difficult to understand proposal’s budget
neutrality based on the submitted pricing plan.” The MSBE
concluded that MCPS was “not required to seek” technical
assistance from the Maryland DOT or Department of the
Environment. Nor was the MSBE persuaded by AutoFlex’s
contention that “MCPS unreasonably interfere[d] with
[AutoFlex’s] access to the information about electricity usage
15
and charging needs” in a manner that prevented AutoFlex
from including pricing and planning details sought by MCPS
and provided by its competitor HET.
“Minority Status”: Although the MSBE expressly
“recognize[d] that MCPS made an error recording minority
bidders on the activity report[,]” it held that “error alone does
not equate to a violation of any MCPS’s minority business
governing policies and procedures resulting in an unfair bid
process to” AutoFlex because “[t]here is no evidence in the
record that MCPS established a minority business subcontract
goal for this contract and the local board policy does not
require one.” In the MSBE’s view, the state and local
regulations requiring an award of points for minority status do
not apply to MCPS. Nor does the RFP require such an award.
“Favoritism”: AutoFlex complained that “its proposal was
not ranked properly because the evaluation committee was
biased in favor of HET given that one of its suppliers for the
proposal includes American Truck & Bus, a supplier of
Thomas buses” that “has supplied MCPS with buses for at
least the past twelve years.” According to AutoFlex, the
“MCPS award to ‘HET MCPS LLC’ is based on a
subcontract to American Bus, the incumbent vendor of the
past 12 years[,]” which also is “the only industry member
serving on the MVA COMAR school bus advisory committee
which has excluded other electric school bus manufacturers
[than Thomas Built, including Lion Bus] from consideration
as supplier to [MCPS] on the basis that modern, composite
materials are not as strong as steel when the U.S. government
DOT, and virtually every engineer in the business, recognizes
the opposite to be true.”
Rejecting AutoFlex’s claim “that MCPS was predisposed to
use” ATB, the MSBE pointed out that AutoFlex’s own
proposal included ATB “as a supplier,” and that “all bidders
were provided with the same information, the same guidance
and the same specifications in the RFP.” The MSBE
concluded “that all bidders were competing on an equal
basis[.]”
16
Judicial Review in the Circuit Court
AutoFlex timely petitioned for judicial review in the Circuit Court for
Montgomery County. During that proceeding, AutoFlex asked the court to take judicial
notice of recent press reports that MCPS announced it had suspended Mr. Watkins and
Mr. Ewald from their positions as DOT Director and Assistant Director, respectively,
pending police investigation into financial misconduct involving an unnamed MCPS
vendor.
In support, AutoFlex proffered an article published in The Washington Post on
November 16, 2021, reporting that “[s]chool officials in Montgomery County said they
had placed the transportation department’s leaders on leave while the investigation of
alleged misconduct is underway” by Montgomery County Police. Donna St. George &
Dan Morse, “Police investigating Montgomery County schools’ transportation
department,” WASH. POST (Nov. 16, 2021), https://perma.cc/4VK7-SKD4 (hereinafter,
the “Post Article”). According to the Post Article, MCPS’s “transportation department
oversees a complex operation of more than 1,000 school buses in the sprawling district,
which enrolls more than 159,000 students and includes more than 200 schools[,]” and
MCPS “recently took steps to move toward electric school buses” and “is supposed to
receive 25 electric buses this year, officials said.” The Post reported that “Montgomery
County police confirmed they were investigating but said they did not have further
comment.” Id. See also Kevin Lewis, “2 MCPS administrators on leave as police
investigate ‘possible financial improprieties,’” WJLA/ABC (Nov. 16, 2021),
https://perma.cc/C3L3-TXGT.
17
Identifying the two suspended officials as “Todd Watkins, head of the department,
who is well-known nationally in school transportation circles, and Charles Ewald, the
assistant director[,]” the Post Article reported that “the school system” issued a public
statement that, “‘We take these allegations very seriously, and as a result, we
immediately contacted the police to investigate,’” but would not be “‘able to share
additional details while the investigation is proceeding.’” See Post Article, supra.
“School system officials said they were committed to ‘fully supporting and understanding
all aspects of this investigation’” and that “[b]ased on the findings, ‘we will determine
next steps[.]’” Id.
Citing this suspected “criminal activity by these two key officials . . . who oversaw
the evaluation and award” of the HET Contract, for “financial improprieties relating to
their official duties[,]” as new evidence supporting its complaints that MCPS unfairly
favored HET and mistakenly evaluated proposals during the procurement process,
AutoFlex asked the circuit court to “reverse or vacate and remand” to the MSBE for “a
new competition for the bus electrification program[.]”
When AutoFlex first obtained written DOT evaluations of the four proposals in
discovery, names of the four evaluators were redacted. It was not until after the Local
Board approved the Contract that AutoFlex succeeded, while in the circuit court, in
learning the identity of each evaluator.
In AutoFlex’s view, the procurement roles played by these suspended DOT
managers warranted the court taking judicial notice of their suspensions and ongoing
criminal investigation, then remanding for further administrative inquiry into the nature
18
and relevance of such information on AutoFlex’s challenges to the HET Contract.
Although counsel for AutoFlex was careful at the hearing to state that he did not yet
know whether any crimes had occurred or the identity of the vendor referenced in the
investigation, he argued that the appearance of impropriety arising from the suspensions
and criminal investigation violated MCPS’s own contracting standards.
After the hearing, the circuit court denied AutoFlex’s request for judicial notice,
ruling that it could not and would not consider anything outside the administrative record
reviewed by the Local Board and MSBE. In its written order affirming the MSBE
decision, the court rejected AutoFlex’s challenges to the Contract based on (1) the
appearance of favoritism and other improprieties arising from the suspended DOT
officials’ involvement in the RFP, evaluation of proposals, and selection of HET as the
winning bidder; (2) MCPS’s rejection of the electric bus model manufactured by Lion, as
a qualified alternative to other models proposed by AutoFlex and another bidder; (3)
determinations made by the MCPS, Local Board, and MSBE that AutoFlex’s pricing was
not competitive; and (4) MCPS’s admitted error in omitting AutoFlex’s status as a
disabled veteran, and the only minority contractor submitting a proposal, from its
recommendations to the Local Board. The court affirmed the decision to award the
Contract to HET.
The Ewald Guilty Pleas and Proffer
After noting this timely appeal challenging both the circuit court’s judicial notice
ruling and the underlying administrative decision, then filing its brief, AutoFlex filed
another request for judicial notice. On June 9, 2023, AutoFlex asked this Court to
19
consider subsequent guilty pleas that Mr. Ewald entered in the Circuit Court for
Montgomery County on May 18, as well as the State’s written proffer in support of Mr.
Ewald’s plea agreement. The Local Board opposed the motion on substantive and
procedural grounds, asking for an award of attorneys’ fees. On June 29, 2023, this Court
denied the Local Board’s fee request and ruled that AutoFlex’s request for judicial notice
would be addressed in this opinion.
The Ewald Proffer sets forth the terms of a plea agreement under which Mr. Ewald
“plead[ed] guilty to count one alleging a felony theft scheme having a value over
$100,000” and “to count two alleging the misdemeanor of misconduct in office” with “[a]
judgment of restitution . . . entered as part of the sentence, not merely as a term of
probation[,]” based on Mr. Ewald’s years-long theft scheme, featuring payments from an
“off-the-books” account funded by ATB with reimbursements due to MCPS under its
diesel bus contract. Circumventing procurement protocols, Mr. Ewald admitted that he
exploited his relationship with ATB and its president, by instructing them to make
payments that were due under ATB’s diesel bus contract with MCPS directly to him or to
a third party, for goods and services that he falsely claimed had been rendered to MCPS.
He deposited those misdirected funds into his personal bank account and used them to
pay for personal expenses. Mr. Ewald was engaged in this theft scheme throughout the
time period he was involved in the procurement for the school bus electrification RFP.
According to the Ewald Proffer:
Beginning at least as far back as 2016 and continuing
into September 2021, . . . Ewald carried out a scheme to steal
money from Montgomery County Public Schools by . . .
20
significantly inflating reimbursement requests. In addition,
[Mr. Ewald] used his school system issued purchasing card,
known as a P-Card, to make purchases for his personal
benefit and not for the benefit of Montgomery County Public
Schools (MCPS). Using his position as an employee, [Mr.
Ewald] stole over $320,000 from the public school system.
Defendant’s Duties with MCPS
At the time this scheme was uncovered, [Mr. Ewald]
was the Assistant Director of Transportation for MCPS. . . .
His duties consisted of working with the Director of the
Department of Transportation in planning, organizing, and
managing the student transportation program that included
bus operations, fleet maintenance, safety and training,
information technology, budget, and human resources. He
was suspended November 9, 2021, when this scheme came to
light and later was terminated from his position. . . .
In his role as supervisor, [Mr. Ewald] participated in
budgeting discussions and was involved in contract
negotiations with vendors to the Department of
Transportation. American Truck and Bus [C]ompany (ATB)
had been the long-time supplier of Todd Bus school bus
vehicles to MCPS. By 2017, [Mr. Ewald] was in regular
contact with Steven Leonard, the President of ATB, regarding
changes to options on new buses and delivery schedules
under the contract. Because of the relationship he had with
ATB in his role as a supervisor, [Mr. Ewald] was able to
divert money belonging to the school system.
(Emphasis added).
The Ewald Proffer details how Mr. Ewald stole money by billing ATB, which
made payments to him from an “off-the-books” account tied to the diesel bus program he
managed:
Bus Contract between MCPS and American Truck & Bus Inc.
MCPS replaces a portion of its school bus fleet every
year. For the contract beginning in 2018, ATB was selected
21
as the contractor. ATB had been providing buses for many
years to MCPS so there is a long history of interactions
between MCPS and ATB. As in past contracts, the 2018
contract contained a provision allowing MCPS to extend the
contract for four additional one-year terms. MCPS exercised
this option through 2021. The contract provided delivery
dates and had a structure for late charges if deliveries were
not met. In addition, the contract provided for changes in
pricing based on any changes in the options to be included or
reductions from manufacturers of the costs to ATB. These
provisions had been standard features of MCPS bus contracts
for many years.
The contract between MCPS and ATB provided two
methods for handling late charges. MCPS could deduct the
charges from money due to ATB or MCPS could request a
certified check from the vendor payable to the Montgomery
County Board of Education. The director of Division
Procurement, not staff of the Department of Transportation,
was to determine the payment method for late charges.
Beginning in 2017, this procedure was not followed.
(Emphasis added).
The Ewald Proffer then explains how Mr. Ewald executed his theft scheme by
exploiting his working relationship with ATB, with assistance in avoiding procurement
protocols from his supervisor, Mr. Watkins:
[Mr. Ewald’s] Theft of Money through American Truck & Bus Contract
The Director of the Department of Transportation,
Todd Watkins, explained that he arranged with Mr. Leonard,
the President of ATB, for ATB to hold onto late fees and
change fee reimbursements rather than returning that money
to MCPS. As requested by Mr. Watkins, from 2016 through
2021, ATB did not return any money to MCPS despite several
changes and adjustments that resulted in ATB owning [sic]
MCPS money. However, ATB did maintain an accounting of
funds owed to MCPS in an “off-the-books” system. ATB
kept a spreadsheet of fees due to MCPS and then made
deductions to that amount when payments were sent out.
22
Beginning in 2016, [Mr. Ewald] made [a] request to ATB to
disburse money from the “off-the-books” account to himself
and others. [Mr. Ewald] conveyed the impression that he had
authority from MCPS to direct disbursement of the “off-the-
books” funds and ATB relied on that apparent authority in
complying with the requests for use of the funds. In addition
to payments to specific individuals, at the request of [Mr.
Ewald], ATB paid invoices from third parties for services and
work allegedly performed for the Department of
Transportation. While occasionally documentation of
expenses accompanied the email request for reimbursement
from the “off-the-books” account, often no documentation
was provided.
ATB issued checks to individuals totaling $368,585.04
from the “off the books” fund. Of that amount, $352,568.68
was found to have gone into [Mr. Ewald’s] personal account
at USAA Bank. [Mr. Ewald] used email to request payments
from ATB and sometimes directed that the checks be sent to
his home address. ......The dollar amount received each year
escalates from 2016 through 2020 before dropping in 2021.
The table also shows that the payments to [Mr. Ewald] from
the “off-the-book” funds, while somewhat irregular, were
spread out over many months of most years. . . .
For some requests, [Mr. Ewald] listed in his email
what the “off-the-books” money was allegedly to be a
reimbursement for. During this investigation, records were
obtained of [Mr. Ewald’s] personal debit and credit card
purchases. [Mr. Ewald’s] personal accounts were searched to
try to find expenses of the amount or type described in the
emails from [Mr. Ewald] requesting “off-the-books”
reimbursement from ATB. Investigators were able to identify
at best, only about $28,054.10 that may have been
reimbursement of expenses made for the benefit of MCPS.
Below is an example of some of the investigative
process. ATB provided an email from [Mr. Ewald] to ATB
employee Karen Thiemeyer asking to be reimbursed for
docking stations and FASTER training in August 2020.
FASTER stands for Faculty and Administrator Safety
Training and Emergency Response, a program that provides
training in practical responses to violence in schools. There
23
were no invoices or documentation provided to ATB [to]
justify the $67,877.25 request for “off-the-books” funds. . . .
The reimbursement check for this request was sent by
ATB to [Mr. Ewald’s] attention at his work address. As
shown in the bank statement image below, [Mr. Ewald]
deposited the $67,877.25 check into his personal account . . .
on August 31, 2020. . . .
A review of all of [Mr. Ewald’s] known bank accounts
and credit card expenses found no purchases at all, let alone
any close to the $67,000 that [Mr. Ewald] claimed he incurred
for the benefit of MCPS for FASTER implementation or Dell
computer equipment. However, subsequent bank records
show how this money belonging to MCPS went to the
personal benefit of [Mr. Ewald]. The bank statement of [Mr.
Ewald’s] USAA account 7770 for the month after the deposit,
September 2020, shows three significant debits. A payment
for $8,000 is made to a USAA credit card ending in 9594 and
two days later another payment is made to the same credit
card in the amount of $1,500. The third debit is for
$57,946.89 to a USAA loan ending in 5965. . . .
Following the money further reveals that USAA loan
5965 was taken out by [Mr. Ewald] in November 2019 to
purchase a 2018 Lincoln Navigator .......The $57,946,89
payment of “off-the-books” MCPS money from ATB paid off
this loan in September 2020. Thus, rather than receiving
reimbursement for computer equipment or trainings he
purchased with his own money for MCPS, [Mr. Ewald]
actually got clear title to a $64,000 Lincoln Navigator. . . .
As to the payments to the USAA credit card ....... [i]n
August 2020, [Mr. Ewald] made two purchases from
Landscape Concepts Inc. . . . totaling $8,094. . . .
While not every check issued by ATB from the “off-
the-books” fund can be linked to specific purchases by [Mr.
Ewald] for his own benefit, there are several deposits of
stolen money that happen close to when significant payments
are made by [Mr. Ewald] on his own expenses, such as large
credit card bills and payments for his Dodge Viper sports car.
Giving [Mr. Ewald] credit for all expenses that arguably
24
could have been for the benefit of MCPS, the evidence still
shows [Mr. Ewald] stole $324,514.58 in money owed by
ATB that should have [] gone to MCPS by exploiting the
“off-the-books” funds.
(Emphasis added).
After detailing Mr. Ewald’s abuse of his MCPS-issued purchase card, or P-card,
for personal expenses and gift cards, the proffer summarizes his admission of guilt in
November 2021, when confronted by his supervisor:
[Mr. Ewald’s] Statements about His Actions
The Director of the Department of Transportation,
Todd Watkins, was made aware that P-Card use in his
Department would be audited by the MCPS Internal Audit
Unit in the fall of 2021. Mr. Watkins asked [Mr. Ewald]
about questionable expenses on [Mr. Ewald’s] P-Card. That
conversation took place on November 8, 2021. During the
conversation, [Mr. Ewald] admitted that he had been using
the P-Card issued to him to make purchases for his personal
benefit. He acknowledged that the purchase of gift cards
which had triggered the P-Card audit, was for personal use.
[Mr. Ewald] also told Mr. Watkins that he had been getting
money from the “off-the-books” account with ATB for his
personal benefit. He admitted that he falsified justifications
in the emails to ATB asking for reimbursement checks. [Mr.
Ewald] said he did not know exactly how much he had taken
but he thought it was around $200,000.
(Emphasis added).
In addition to making “$463,256 in charges between July 1, 2016, and January 5,
2022[,]” Mr. Ewald “also directed ATB to pay invoices from third parties for services
provided to the Department of Transportation” via a method that violated “established
MCPS procedures” designed as “checks and verification steps” that “MCPS uses to
ensure purchases are legitimate” and “distorted budget projections that would be based on
25
past expenditures to identify areas of need.” One example involved a payment for “pole
lighting” work, that Mr. Ewald directed ATB to make to the third party contractor.
The Watkins Guilty Plea and Proffer
Even more recently, also while this appeal has been pending, former DOT
Director Watkins pleaded guilty to one count of misdemeanor misconduct in office,
predicated on his failure “to properly manage the contract for the purchases of school
buses[,]” which enabled Mr. Ewald “to steal over $320,000” from MCPS, by exploiting
his relationship with ATB to misdirect payments made from its off-the-books account.
For reasons that we explain below, we will take judicial notice of the adjudicated facts
supporting Mr. Watkins’ conviction, as set forth in the written proffer supporting his plea
agreement. See Md. Rule 5-201(c).
As Mr. Ewald’s direct supervisor, Mr. Watkins’ “duties consisted of planning,
organizing, and managing the student transportation program that include bus operations,
fleet maintenance,” and “budget[.]” Mr. Watkins “delegated some of the [ATB] contract
change order discussions to Mr. Ewald,” but “was deeply involved in contract
negotiations with ATB” and “ultimately responsible for the management of the bus
contract.” In that capacity, he circumvented the MCPS procurement protocols and terms
in the ATB contract by “arrang[ing] with Mr. Steve Leonard, the President of ATB, for
ATB to hold onto late fees and change fee reimbursements rather than returning that
money to MCPS.” It was that deviation from procurement protocols that Mr. Ewald
exploited to misdirect payments from ATB’s off-the-books account for his personal
benefit.
26
The Watkins Proffer includes the same “long history of interactions between
MCPS and ATB” involving the school bus fleet described in the Ewald Proffer, pointing
to the contract provisions for “late charges if deliveries were not met” and “changes in
pricing based on options to be included or reductions from manufacturers of the costs to
ATB.” Consistent with the misconduct described in the Ewald Proffer, Mr. Watkins
circumvented MCPS’s procurement protocols:
The contract between MCPS and ATB provided two
methods for handling late charges. MCPS could deduct the
charges from money due to ATB or MCPS could request a
certified check from the vendor payable to the Montgomery
County Board of Education. The director of the Division of
Procurement, not [Mr. Watkins], was to determine the
payment method for late charges. Beginning in 2016, this
procedure was not followed.
In a statement to police investigators, [Mr. Watkins]
explained that he arranged with Mr. Steve Leonard, the
President of ATB, for ATB to hold onto late fees and change
fee reimbursements rather than returning that money to
MCPS. As requested by [Mr. Watkins], from 2016 through
2021, ATB did not return any money to MCPS despite several
changes and adjustments that resulted in ATB [owing] MCPS
money. However, ATB did maintain an accounting of funds
owed to MCPS in an “off-the-books” system. ATB kept a
spreadsheet of fees due to MCPS and then made deductions
to that amount when payments were sent out. [Mr. Watkins]
made at least seven requests for ATB to issue him checks
from the “off-the-books” account [which] demonstrates his
knowledge that MCPS procedures for reimbursement were
not being followed.
Beginning in 2016, . . . [Mr.] Ewald made [a] request
to ATB to disburse money from the “off-the-books” account
to himself and others. In addition to payments to specific
individuals, at the request of Mr. Ewald, ATB paid invoices
from third parties for services and work allegedly performed
for the [DOT]. While occasionally documentation of
27
expenses accompanied the email request for reimbursement
from the “off-the-books” account, often no documentation
was provided. ATB issued checks to individuals totaling
$368,585.04 from the “off-the-books” fund. Of that amount,
$352,568.68 was found to have gone into the personal
account of Charles Ewald at USAA Bank. These payments
occurred over a period of years.
[Mr. Watkins’] choice to set up the “off-the-books”
system and his failure to monitor how MCPS funds in that
system were used resulted in Mr. Ewald being able to
personally enrich himself by stealing money belonging to
MCPS. In his statement to investigators, [Mr. Watkins]
acknowledged he knew the “off-the-books” system was not
an approved procedure and suggested it was easier to seek
forgiveness than ask permission. . . .
By not following established procedures regarding P-
Card use and refunds under the bus contract, [Mr. Watkins]
avoided all the checks and verification steps MCPS uses to
ensure purchases are legitimate. His lack of oversight
resulted in distorted budget projections that were based on
past expenditures to identify areas of need. As set out above,
[Mr. Watkins’] non-feasance allowed a theft of over
$320,000 to occur. To his credit, when Mr. Ewald
acknowledged the theft scheme, [Mr. Watkins] reported the
crime to supervisors and voluntarily cooperated with internal
and criminal investigations.
(Emphasis added).
QUESTIONS PRESENTED
In its briefing to this Court, AutoFlex raises the following questions, the first two
of which we have reordered:
1. Was the Circuit Court’s refusal to take judicial notice of the facts of
the criminal investigation an error of law?
2. Was the MSBE Opinion affirming the award by the MC Local Board
and/or MCPS to HET arbitrary and capricious, or otherwise
unlawful, because the two key MCPS Department of Transportation
28
officials who oversaw the evaluation and award were later under
criminal investigation in connection with “financial improprieties”
relating to their official duties?
3. Was the MSBE Opinion and award to HET arbitrary and capricious,
or otherwise unlawful, because the MC Local Board and MCPS
excluded the electric bus manufactured by Lion Electric company,
precluding new technology in a twelve-year program, and/or because
the evaluations were based on considerations contrary to the RFP,
and/or not supported by substantial evidence?
4. Was the MSBE Opinion and award to HET arbitrary and capricious,
or otherwise unlawful, because the MSBE Opinion conclusion on
pricing is not supported by substantial evidence?
5. Was the MSBE Opinion and award to HET arbitrary and capricious,
or otherwise unlawful, because the MC Local Board and MCPS
disregarded AutoFlex’s minority-owned status?
In addition, as noted, AutoFlex asks this Court to take judicial notice that while this
appeal was pending, Mr. Ewald pleaded guilty to felony counts of theft scheme and
misconduct in office based on the facts set forth in the Ewald Proffer filed in support of
those pleas.
In response, the Local Board consolidates and restates AutoFlex’s issues as
follows:
1. Whether the circuit court erred in refusing to consider
allegations and information that came to light after the
State Board’s decision and are not part of the agency
record.
2. Whether the State Board’s decision was arbitrary, illegal or
capricious, and a reasonable mind, reviewing the relevant
evidence in the agency record, could not have reached the
decision the State Board reached in upholding the Local
Board’s award of the contract for RFP 9432.1 to HET and
not AutoFlex.
29
The Local Board opposes AutoFlex’s request for judicial notice on procedural and
substantive grounds that we detail below.
For reasons that follow, we conclude the circuit court erred in denying AutoFlex’s
request for judicial notice that MCPS suspended Mr. Ewald and Mr. Watkins pending
criminal investigation into financial misconduct involving an MCPS vendor on the
mistaken ground that the circuit court could not consider material outside the
administrative record. Moreover, we will grant AutoFlex’s request to take judicial notice
of Mr. Ewald’s pleas and proffer and take judicial notice on our own initiative of Mr.
Watkins’ plea and proffer. In turn, the adjudicated facts in the Ewald and Watkins
Proffers effectively supersede AutoFlex’s request for judicial notice of MCPS’s
announcement of Mr. Ewald’s and Mr. Watkins’ suspensions and the related criminal
investigation.
We conclude that based on this adjudicated evidence and other undisputed facts,
AutoFlex established prima facie grounds for the MSBE to reconsider its claims that the
procurement proceedings and resulting Contract are tainted by the appearance of
impropriety, MCPS’s favoritism toward HET, and material mistakes in evaluating
bidders’ proposals. In accordance with SG § 10-222(h)(1), we will vacate the judgment
and remand for further administrative proceedings to determine the significance of such
evidence to AutoFlex’s challenges to the HET Contract.
30
STANDARDS GOVERNING JUDICIAL REVIEW
Appeals from a local board of education to the MSBE may result in reversal and/or
remand of a contested case decision that “[m]isconstrues the law,” “[r]esults from an
unlawful procedure,” or “[i]s affected by any other error of law.” COMAR
13.A.01.05.06.C. The MSBE “may not substitute its judgment for that of the local board
unless the decision is arbitrary, unreasonable, or illegal.” Id. See Frederick Classical
Charter Sch., Inc. v. Frederick County Bd. of Educ., 454 Md. 330, 373 (2017). When the
MSBE reviews a local board’s decision involving “local polic[ies] or controvers[ies,]” it
treats that decision as prima facie correct. See COMAR 13.A.01.05.06.A.; see also
Frederick Classical Charter Sch., 454 Md. at 373.
As the Supreme Court of Maryland has explained, the high level of deference that
courts afford to administrative decisions by the MSBE reflects that under § 2-205 of the
Education Article,
the State Board “has very broad statutory authority over the
administration of the public school system in this State, and
that the totality of its statutory authority constitutes a
visitatorial power[4] of such comprehensive character as to
invest the State Board with the last word on any matter
concerning educational policy or the administration of the
system of public education.” We have previously explained
the scope and purpose of this “visitatorial” power:
We think it beyond question that the power of
visitation vested in the State Board is one of
general control and supervision; it authorizes
the State Board to superintend the activities of
4
“Visitatorial power” is defined as “[t]he power to inspect or make decisions
about an entity’s operations.” Visitatorial power, BLACK’S LAW DICTIONARY (11th ed.
2019).
31
the local boards of education to keep them
within the legitimate sphere of their operations,
and whenever a controversy or dispute arises
involving the educational policy or proper
administration of the public school system of
the State, the State Board’s visitatorial power
authorizes it to correct all abuses of authority
and to nullify all irregular proceedings.
“The broad statutory mandate given to the State Board
requires that special deference be given to its interpretation of
statutes that it administers.” That deference is over and above
that generally afforded to other administrative agencies;
“while administrative agencies generally may interpret
statutes, as well as rule upon other legal issues, and while an
agency’s interpretation of a statute which it administers is
entitled to weight, the paramount role of the State Board of
Education in interpreting the public education law sets it apart
from most administrative agencies.”
However, the discretion that courts afford to the State Board
“is not unlimited.” We have recognized that there are at least
four instances where judicial review may be more expansive
in its inquiry:
(1) the matter involves a purely legal question;
(2) the State Board has contravened state
statute;
(3) the State Board exercised its power in bad
faith, fraudulently, or in breach of trust; or
(4) the State Board exercised its power
arbitrarily or capriciously.
Frederick Classical Charter Sch., 454 Md. at 370-71 (cleaned up). See Bennett v.
Harford County, 485 Md. 461, 474 (2023).
Under SG § 10-222(h), a court considering a contested administrative case on
judicial review may:
(1) remand the case for further proceedings;
32
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of
the petitioner may have been prejudiced because a finding,
conclusion, or decision: . . .
(iii) results from an unlawful procedure;
(iv) is affected by any other error of law;
(v) is unsupported by competent, material, and substantial
evidence in light of the entire record as submitted; or
(vi) is arbitrary or capricious.
Appellate courts review a final administrative decision by “looking through” the
circuit court’s decision on judicial review, to evaluate the agency’s decision itself. See
Maryland Dep’t of the Env’t v. Assateague Coastal Tr., 484 Md. 399, 446 (2023);
Montgomery Park, LLC v. Maryland Dep’t of Gen. Servs., 482 Md. 706, 724 (2023);
Anne Arundel County v. 808 Bestgate Realty, LLC, 479 Md. 404, 419 (2022). Although
“we presume them to be valid[,]” we “review[] conclusions of law de novo” without
deference. See Montgomery Park, 482 Md. at 724; Frederick Classical Charter Sch., 454
Md. at 369. “When reviewing an agency’s findings of fact ‘we affirm the agency’s
decision if there is substantial evidence in the record as a whole to support the agency’s
findings and conclusions.’” Montgomery Park, 482 Md. at 724 (citation omitted). For
decisions involving a mixed question of law and fact, we also apply the substantial
evidence test. See Charles County Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 296
(2004).
33
DISCUSSION
We first address AutoFlex’s judicial notice contentions, concluding that the circuit
court erred in denying AutoFlex’s request for judicial notice on the ground that it could
consider only evidence presented to the MSBE. Ultimately, however, we need not
consider the announced suspensions of Mr. Ewald and Mr. Watkins pending criminal
investigation because this Court will take judicial notice of superseding adjudicative facts
regarding the recent convictions of both Mr. Ewald and Mr. Watkins. From there, we
turn our attention to AutoFlex’s challenges to the MSBE’s decision to affirm the HET
Contract, explaining why we are remanding to the MSBE and the Local Board for further
administrative proceedings during which AutoFlex’s challenges to the procurement
proceedings resulting in the HET Contract may be reconsidered in light of Mr. Ewald’s
and Mr. Watkins’ adjudicated misconduct.
I. JUDICIAL NOTICE
As we have discussed, there are two judicial notice questions before us. First,
AutoFlex challenges the circuit court’s refusal to take judicial notice of public statements
by MCPS, as reported in the Post Article, announcing its suspension and criminal referral
of Mr. Ewald and Mr. Watkins. Second, AutoFlex asks this Court to take judicial notice
of Mr. Ewald’s guilty pleas and supporting proffer.
After reviewing the relevant record and standards governing judicial notice, we
explain why the circuit court erred in denying AutoFlex’s request for judicial notice and
why this Court will take judicial notice of superseding adjudicative facts concerning the
recent convictions of both Mr. Ewald and Mr. Watkins.
34
A. Standards Governing Judicial Notice
Maryland Rule 5-201 governs judicial notice of adjudicative facts, providing in
pertinent part:
(a) Scope of Rule. This Rule governs only judicial notice of
adjudicative facts. Sections (d), (e), and (g) of this Rule do
not apply in the Appellate Court or the Supreme Court.
(b) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice,
whether requested or not.
(d) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary
information.
(e) Opportunity to Be Heard. Upon timely request, a party is
entitled to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. . . .
(f) Time of Taking Notice. Judicial notice may be taken at
any stage of the proceeding.
(Emphasis added).
We review a circuit court’s ruling on a request to take judicial notice under the
clearly erroneous standard, keeping in mind “‘[t]he principle that there is a legitimate
range within which notice may be taken or declined and that there is efficacy in taking it,
when appropriate[.]’” Smith v. Hearst Corp., 48 Md. App. 135, 141 (1981) (quoting
“Professor James Bradley Thayer in his Preliminary Treatise on Evidence (1898), at p.
300”). See Choudhry v. Fowlkes, 243 Md. App. 75, 98 (2019). Circuit and appellate
35
courts may take judicial notice of “matters of common knowledge or [those] capable of
certain verification.” Faya v. Almaraz, 329 Md. 435, 444 (1993) (citations omitted);
Dashiell v. Meeks, 396 Md. 149, 174-76 (2006).
Maryland Rule 5-201 governs judicial notice of adjudicative facts only. Dashiell,
396 Md. at 175. We have distinguished “adjudicative facts” from “legislative facts,”
defining the former as facts “‘about the parties and their activities, businesses and
properties. They usually answer the questions of who did what, where, when, how, why,
with what motive or intent while legislative facts do not usually concern the immediate
parties but are general facts which help the tribunal decide questions of law and policy
and discretion.’” Dashiell, 396 Md. at 175 n.6 (quoting Montgomery County v.
Woodward & Lothrop, Inc., 280 Md. 686, 711-12 (1977)). Additionally:
What unites these various classes of information is not so
much their nature as public or widely-known, but more their
nature as undisputed—as one commentator has described it,
falling into either the “everybody around here knows that”
category, or the “look it up” category. See Lynn McLain,
Maryland Evidence, State & Federal § 201:4(b)-(c), at 221,
237 (3rd ed. 2013). Put another way, “[i]f there is no reason
to waste time proving a fact, it can be ‘judicially noted.’”
Joseph Murphy, Maryland Evidence Handbook § 1000, at
489 (4th ed. 2010).
Abrishamian v. Washington Med. Grp., P.C., 216 Md. App. 386, 414 (2014) (emphasis
added).
Information that is commonly subject to judicial notice includes publicly available
records, including court documents posted on the Maryland Judiciary’s website. See Est.
of Steiner, 255 Md. App. 275, 285 n.1 (2022); MCB Woodberry Dev., LLC v. Council of
36
Owners of Millrace Condo., Inc., 253 Md. App. 279, 302 (2021); Abrishamian, 216 Md.
App. at 414. We may “take judicial notice of the record” in such cases, even when not
included as part of the record on appeal if doing so is necessary “to reach a just result”
based on “established and uncontroverted facts not formally of record in the pending
litigation.” Fletcher v. Flournoy, 198 Md. 53, 60-61 (1951) (overruled on other
grounds). See, e.g., Hanover Invs., Inc. v. Volkman, 455 Md. 1, 9 n.5 (2017) (noting that
“although an appellate court does not normally ‘travel’ outside the record, judicial notice
may be taken of filings in related cases in furtherance of a just result”); Cochran v.
Griffith Energy Servs., Inc., 426 Md. 134, 145 n.4 (2012) (taking judicial notice on
appellate review of the contents of filings in a prior lawsuit, which parties agreed at oral
argument were relevant to the appeal, where consideration supported a “just result”);
Abrishamian, 216 Md. App. at 415-16 (recognizing that “[n]oticing pleadings does not
mean accepting what they say as true, only that they exist as public records”) (emphasis
in original); Lerner v. Lerner Corp., 132 Md. App. 32, 41 (2000) (taking judicial notice
of an order and notice of judgment entered in the circuit court).
B. The Parties’ Contentions
AutoFlex first contends that “under Rule 5-201(d),” the circuit court’s denial of its
request for judicial notice that MCPS announced the suspensions of Mr. Ewald and Mr.
Watkins and the pending criminal investigation was both “legal error” and “arbitrary[]
[and] capricious[.]” In turn, the circuit court erred in affirming MCPS’s award of this
Contract without considering whether these suspensions and criminal investigation
warranted remand for further administrative inquiry into whether MCPS violated its
37
procurement standards and the RFP, by awarding the Contract under circumstances
establishing favoritism, material mistakes in the evaluations, and an appearance of
impropriety.
Second, AutoFlex asks this Court to take judicial notice of Mr. Ewald’s guilty
pleas and the supporting proffer, arguing that these newly adjudicated facts establish even
more probative links between the HET Contract and these two DOT officials. Pointing to
the key role played by Mr. Ewald throughout the procurement process for the $168
million Contract, AutoFlex contends that although “the facts concerning Watkins and
Ewald were not available in AutoFlex’s earlier administrative appeals,” this Court has
authority and good reason to exercise its discretion to take judicial notice of Mr. Ewald’s
guilty pleas and supporting proffer. Likewise, AutoFlex argues, this Court should take
judicial notice of the September 2022 Financial Management Practices Audit Report,
which was publicly filed after the circuit court entered judgment, explaining that MCPS
planned to modify “its process for purchasing buses, and developing procedures for how
it accounts for changes to bus specification[.]” See MCPS Financial Mgmt. Practices
Audit Report, Sept. 2022, https://perma.cc/GFC2-R5XN.
As we understand it, the Local Board’s position is that the circuit court correctly
denied AutoFlex’s request for judicial notice, because it was both too little, given that the
suspensions and investigation of these MCPS officials were merely reported in a
newspaper, and too late, because they occurred after the MSBE completed its
administrative review of the HET Contract. Moreover, the Local Board argues that
AutoFlex is improperly citing to the contents of both the audit report that MCPS issued
38
after the Contract was affirmed and to Mr. Ewald’s guilty pleas and supporting proffer
filed during this appeal. According to the Local Board, neither the suspensions pending
investigation, nor MCPS’s audit report, nor the Ewald Proffer should be considered for
the following reasons:
1. “AutoFlex did not file a motion asking the circuit court for permission to inject
extra-record evidence into the proceedings; it just did so unilaterally despite
the restrictions in Rules 7-206 and 7-208” and the circuit court judge’s ruling
that those rules “prohibit[] this Court from considering extraneous information
outside of the record considered by the agency.” See Md. Rule 7-206(b)
(providing that the administrative record consists of transcripts, exhibits, and
pleadings “filed in the agency proceeding”); Md. Rule 7-208(c) (“Additional
evidence in support of or against the agency’s decision is not allowed unless
permitted by law.”); Arking v. Montgomery County Planning Bd., 215 Md.
App. 589 (2013).
2. Neither the proffered November 2021 news reports, nor anything else in the
record establishes “that the ‘financial improprieties’ under investigation had
any connection to the contract awarded by the Local Board in April 2021 under
the MCPS bus electrification RFP.”
3. Because the “alleged events that occurred in November 2021 and unrelated
statements in an MCPS audit report, arising months or years after the State
Board’s record was closed and the agency decided the appeal in July 2021[,]”
AutoFlex is asking this Court to improperly “consider, or be influenced by,
information about alleged events occurring many months after any of the
events or actions in the record considered by the State Board below.”
4. The information that AutoFlex asked the circuit court to take judicial notice of
was “not the kind of fact contemplated by the rule” governing judicial notice,
because “an allegation in news reports published months after the State
Board’s decision” in July 2021 is neither a matter of common knowledge,
capable of certain verification, nor a fact unrelated to a party.
5. “[P]ost facto ‘evidence’ and other extra-record matters have no place in this
appeal” because “‘[a] reviewing court usurps the agency’s function when it
sets aside the administrative determination upon a ground not theretofore
presented and deprives the [agency] of an opportunity to consider the matter,
make its ruling, and state the reasons for its action.’” Arking, 215 Md. App. at
596 (citation omitted).
39
C. AutoFlex’s Request for Judicial Notice in the Circuit Court
In its written order denying AutoFlex’s request for judicial notice of the Post and
other news reports, the circuit court ruled that (1) the articles “do not convey ‘facts
generally known as a result of newspaper article’”; (2) “the existence of an investigation,
even if judicially noticed, does not shed light on any factual information that
improprieties occurred in this bid”; and (3) even though Mr. Watkins and Mr. Ewald
were two of the four evaluators of the proposals for the HET Contract under review, “the
record in this case is devoid of facts that would support even the mere appearance of
impropriety.” We address each alternative rationale for refusing to take judicial notice of
the announced suspensions of Mr. Ewald and Mr. Watkins in turn, concluding that
neither the law, nor the record supports the reasons cited by the circuit court.
1. Authority to Consider Evidence Not in the Administrative
Record
As a threshold matter, the circuit court erred in predicating its decision not to take
judicial notice of the reported suspensions and criminal investigation of Mr. Ewald and
Mr. Watkins on its mistaken belief that it lacked authority to consider evidence that was
not in the administrative record presented to the Local and State Boards. During the
hearing before the circuit court on its request for judicial review, AutoFlex argued that
“even where an evidentiary record is otherwise closed and even when a case is on appeal
the Court must still take judicial notice” of “certain facts when requested.” When
AutoFlex’s counsel asked the court “to take judicial notice of the facts that were reported
in government press releases” about the suspension and investigation of “Mr. Todd
40
Watkins, the head of MCPS’s Transportation Department[,]” and Mr. Ewald, the
Assistant Director, the circuit court asked whether counsel could cite “any case that has
taken judicial notice of a newspaper article about a pending investigation?” Noting that
she could “take judicial notice of Court records” and “somebody’s conviction if it’s in my
records[,]” the judge stated that she had not found “a single case where any Court has
ever taken judicial notice of an investigation that is pending without resolution. And that
somehow becomes incorporated substantively into an administrative record.”
Counsel for AutoFlex responded that “it’s not just the newspaper articles[;] it’s
also the statements made by the agencies themselves. So MCPS itself made this press
release or otherwise made this statement about the investigation as did the Montgomery
County Police Department.”
The court next expressed doubt that it could consider new evidence that was not
before the Local Board and MSBE, ultimately deciding that it had “an absolute limitation
to the record that is before me and to the record that was before the Commission or the
agency.” The court explained:
Under what theory and authority do I get to superimpose
percolating events hot off the presses into an administrative
review? I am not the finder of fact in the first instance. And
so caselaw is abundantly clear that the only thing that I can
consider is that which was before the agency whose decision
I’m reviewing. And if it was not before them there is plenty of
caselaw that says that I am absolutely prohibited from
reviewing it. Even [if] I [wish] to there’s no discretion. . . .
The [role] that I have is a different one. It is simply as an
appella[te] review. So unless you direct me to any case that
says that in extenuating circumstances if something is
interesting enough I can supplant the state of the law as I
know it.
41
(Emphasis added).
In response, counsel for AutoFlex argued that under Md. Rule 7-208(c), providing
“that additional evidence in support of or against agency’s decision is not allowed unless
permitted by law[,]” the judicial notice provisions in Md. Rule 5-201 qualify as “one
aspect of law that allows the Court to acknowledge a fact[.]” Counsel then pointed out
that “in their response brief the County Board counsel suggested it would be improper” to
consider these judicially noticeable facts because AutoFlex was improperly “trying to
imply something else such as for example that these individuals are guilty” or “that the
investigations are related to something specific such as the bus electrification contract[.]”
Reassuring the court that AutoFlex was not doing so, counsel argued that AutoFlex did
not “yet know what exactly the investigation is related to[,]” specifically:
the facts of the timing[,] nature[,] and targets of the
investigation are judicially noticeable facts because under the
caselaw they’re undisputed and they’re generally known.
And the administrative record shows that Mr. Watkins and
Mr. Ewald were both evaluators and key supervisors for this
procurement. And Mr. Ewald is listed in the RFP as the
project contact. But Autoflex is emphasizing instead here
that in both caselaw and the school system’s own written
procurement policies it is the mere appearance . . . of
impropriety that is enough to call a procurement process into
question and to find potential error that warrants reversal.
Here again it is the appearance of impropriety and not
any final determination of impropriety that is the concern at
the moment. Even the State Board’s opinion noted that
MCPS’s procurement manual was binding and applicable
here Your Honor. And the manual itself explicitly requires
that procurement procedures be conducted with the avoidance
of even the appearance of impropriety.
42
While there may or may not be any actual impropriety,
that remains to be seen, there is nevertheless this appearance
issue and the Court can take judicial notice of the facts cited
that give rise to this issue. Furthermore, caselaw has held that
where an appearance of impropriety exists a procurement
award can be reversed. It doesn’t matter in our view that the
administrative proceedings below did not have this
information at the time of the agency rulings because of
Rule[] 5-201 and the room given in Rule 7-208(c) that allows
additional evidence as permitted by law. Now one sensible
option for the Court might be to remand the matter to the
agency to review or hold in abeyance until these
investigations are completed so the agency can reconsider its
opinion after it has the results of the investigations.
Under the State Government Article Section 10-222(h)
again the Court does not have to make any findings under
Subsection (h)(3) in order to remand the case. But regardless
of the precise remedy Your Honor the appearance of
impropriety here is real. The facts giving rise to it can be
judicially noticed at this time and we believe that the issue
rises to the level of one that may have prejudiced the
substantial right of the petitioner. May have or may not have
but the law says the standard is may have and this alone is
enough to make this an issue that warrants at least remand.
(Emphasis added).
When the review hearing continued on April 15, 2022, counsel for AutoFlex cited
a case in which the court “did take judicial notice of the existence of Washington Post
newspaper articles in the D.C. area that were covering ongoing criminal investigations of
a local public official.” See Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir.
1991).
We hold that the circuit court erred as a matter of law in denying AutoFlex’s
request for judicial notice of the announced suspensions of Mr. Ewald and Mr. Watkins
pending criminal investigation on the ground that the court could not consider evidence
43
outside the administrative record. Specifically, the court incorrectly ruled that in
deciding whether to remand to the MSBE, it lacked authority to consider any evidence
that had not been presented during the administrative proceedings before the Local Board
and MSBE.
Although Md. Rule 7-206(b) states that an administrative record is limited to
evidence and argument made “in the agency proceeding,” Md. Rule 7-208(c)
contemplates that evidence outside that administrative record may be considered in some
cases, expressly stating that “[a]dditional evidence in support of or against the agency’s
decision is not allowed unless permitted by law.” (Emphasis added). We agree with
AutoFlex that the judicial notice provisions in Md. Rule 5-201 give the court authority to
grant such permission. Under that rule, adjudicative facts outside an existing record may
be noticed “at any stage of the proceeding” when the “necessary information” is
presented to the court. See Md. Rule 5-201(c)-(f).
When reviewing an administrative decision, therefore, a court may exercise its
discretion to consider adjudicative facts outside the administrative record. To be sure,
there are important caveats and limitations to considering evidence that was not
considered by the agency. Most importantly, a court conducting judicial review may not
usurp the administrative agency’s role by re-trying the administrative matter based upon
evidence that was not part of the administrative record, but could have been. In Arking,
215 Md. App. at 595, for example, the circuit court did not err in denying a motion by
homeowners to supplement the administrative record following administrative approval
of a resubdivision plan, with an additional letter plus planning staff reports about
44
previous resubdivision plans, because, by considering “supplemental materials on which
the [ ] Board did not rely, the [circuit c]ourt could not determine whether the [ ] Board’s
decision was a reasonable conclusion based upon the facts in the record.” (cleaned up).
This Court explained that:
[i]n judicial review of administrative proceedings,
“[a]dditional evidence in support of or against the agency’s
decision is not allowed unless permitted by law.” Md. Rule
7-208(d) (emphasis added). It is clear in the instant case that
supplementing an administrative record is not permitted by
law. Pursuant to the Maryland Administrative Procedure Act,
Md. Code (1984, 2009 Repl. Vol.), § 10-222 of the State
Government Article (“SG”), a reviewing court may only
(1) remand the case for further proceedings;
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of
the petitioner may have been prejudiced because a finding,
conclusion, or decision: . . . .
(v) is unsupported by competent, material, and substantial
evidence in light of the entire record as submitted; or
(vi) is arbitrary and capricious.
SG § 10-222(h) (emphasis added). It is clear from the above
language that we are limited to reviewing “the entire record
as submitted.” SG § 10–222(h)(3)(v) (emphasis added) . . .
The underlying rationale for this principle is as follows:
“‘A reviewing court usurps the agency’s function when it sets
aside the administrative determination upon a ground not
theretofore presented and deprives the [agency] of an
opportunity to consider the matter, make its ruling, and state
the reasons for its action.’ We do not allow issues to be
raised for the first time in actions for judicial review of
administrative agency orders entered in contested cases
because to do so would allow the court to resolve matters ab
45
initio that have been committed to the jurisdiction and
expertise of the agency.”
Capital Commercial Properties., Inc., 158 Md. App. at
96-97[] (quoting Delmarva Power & Light Co. v. Public
Service Comm’n of Md., 370 Md. 1, 32 [] (2002)). Because
the materials submitted to the circuit court with appellants’
motion to supplement were not part of the record before the
Board when it rendered its decision, neither the circuit court
nor this Court has authority to review them. Therefore, the
circuit court did not err.
Id. at 596-98 (emphasis added).
The Local Board cites Arking, 215 Md. App. at 596-97, for the broad proposition
that “the law is clear that post facto ‘evidence’ and other extra-record matters have no
place in this appeal.” Such reliance is misplaced because even though a reviewing
court’s authority to reverse or modify an agency’s decision under SG § 10-222(h)(3)(v)
must be based on the administrative “record as submitted,” the statute does not condition
a reviewing court’s authority to remand for further administrative proceedings under SG
§ 10-222(h)(1) on the administrative record as submitted. (Emphasis added). In this
scenario, when the reviewing court remands after taking judicial notice of evidence not in
the administrative record, the agency still has the “opportunity to consider the matter,
make its ruling, and state the reasons for its action.” Arking, 215 Md. App. at 596
(citations omitted).
Consequently, a reviewing court does not abuse its discretion in taking judicial
notice, then remanding, when, as in this case, the adjudicative facts concern events that
occurred after the agency issued its decision. In contrast to the supplementary statements
and reports belatedly proffered by the homeowners in Arking, which could and should
46
have been presented to the planning board before it approved the challenged
resubdivision plan, here, MCPS’s public announcement that two key officials in the HET
Contract procurement proceedings had been suspended pending criminal investigation
into financial misconduct involving an MCPS vendor involved matters that allegedly
occurred during the procurement proceedings but that AutoFlex could not reasonably
have been expected to know before the MSBE affirmed the Contract.
As the excerpted transcript shows, AutoFlex clearly argued that MCPS’s
announcement of suspensions pending criminal investigation of two MCPS officials who
played key roles in the procurement proceedings through which HET was selected as the
winning bidder, constituted grounds for remanding to the MSBE, so that the agency
could reopen the record to reconsider AutoFlex’s substantive and procedural challenges
to the Contract in light of that new evidence. In contrast to the previously available
evidence belatedly proffered in Arking, here the Ewald and Watkins suspensions
constituted new information about new events that had prima facie relevance for
AutoFlex’s request to remand for the MSBE to reconsider its challenges on the ground
that MCPS’s evaluation of proposals was tainted by favoritism and material mistakes. In
this scenario, when the reviewing court remands after taking judicial notice of evidence
not in the administrative record, the court is not improperly “usurp[ing] the agency’s
function” because the agency still has the “opportunity to consider the matter, make its
ruling, and state the reasons for its action.” Arking, 215 Md. App. at 596-97.
In deciding whether to remand to the MSBE, therefore, the circuit court had
authority to take judicial notice of evidence outside the administrative record. The court
47
erred in ruling that it did not, applying the wrong legal standard in thinking that it could
not take judicial notice in a judicial review of an administrative proceeding. See
generally Wilson-X v. Dep’t of Hum. Res., 403 Md. 667, 675-76 (2008) (explaining that
“trial judges do not have discretion to apply inappropriate legal standards, even when
making decisions that are regarded as discretionary in nature”). We next turn to the
circuit court’s alternative grounds for denying judicial notice.
2. Facts Generally Known and Relevant to Appearance of
Impropriety
We conclude that the circuit court also erred in ruling that “the articles do not
convey facts generally known” and that the record is “devoid of facts supporting
appearance of impropriety.” To the contrary, the factual record supporting AutoFlex’s
requests for judicial notice in both the circuit court and this Court is undisputed and
prima facie relevant to AutoFlex’s challenges based on appearance of impropriety,
favoritism, mistakes in evaluating the proposal, and other possibly pretextual grounds for
awarding the Contract to HET.
Significantly, the Local Board has never denied that MCPS itself made the public
announcement reported by the Washington Post. Nor has the Local Board contested that
these two DOT officials identified by MCPS were suspended and under criminal
investigation for financial misconduct relating to an MCPS vendor. Likewise, it is
undisputed that Mr. Watkins and Mr. Ewald managed MCPS’s contracts with its bus
vendors generally and played significant roles in the procurement process for the HET
Contract specifically. Given that the investigation arose from MCPS’s own criminal
48
referral regarding financial improprieties within its DOT’s dealings with MCPS vendors,
and the Local Board presumably could have requested verification of those suspensions
from MCPS, we discern no error or unfairness in taking judicial notice of such
information.
This information was patently relevant because it provided evidentiary support for
AutoFlex’s claims of favoritism toward HET and material mistakes in evaluating its
proposal. As the Local Board acknowledges, the two senior DOT officials who managed
the school bus electrification procurement for MCPS were suspended pending criminal
investigation into financial improprieties in their interactions with MCPS’s existing bus
vendor, whose affiliate submitted the $168 million proposal that those same officials
recommended, resulting in MCPS’s selection of that affiliate as the winning bidder.
Given the unanswered questions about potentially corrupt connections between
those DOT officials and these procurement proceedings, MCPS’s announcement was
prima facie relevant to AutoFlex’s challenges. Specifically, as AutoFlex detailed to the
circuit court, the suspensions and investigation of Mr. Ewald and Mr. Watkins constituted
new evidence that could be pertinent to the MSBE’s determinations as to (1) whether
(and if so, why) MCPS favored HET in the procurement process; (2) whether (and if so,
why) MCPS made material errors in evaluating AutoFlex’s proposal, with respect to its
inclusion of Lion Bus as a cost-saving alternative, pricing terms, and minority contractor
status; and (3) whether MCPS complied with its own regulations prohibiting an
appearance of impropriety in contracting.
49
Under Md. Rule 5-201(d), judicial notice is mandatory when a requesting party
supplies the court with “the necessary information.” In these circumstances, where the
announcement to be judicially noticed was not disputed by the Local Board, involving
undisputed proprietary information about employment actions by MCPS, which was
relevant to AutoFlex’s challenges to the HET Contract, the circuit court erred in ruling
that the evidence was neither “generally known,” nor relevant to the MSBE’s review of
the Contract for appearance of impropriety.
Given that AutoFlex repeatedly asked the circuit court to exercise its authority to
remand for further administrative proceedings in light of such evidence, the decision not
to take judicial notice prejudiced AutoFlex. Yet we will not predicate our decision on
whether to remand for further administrative proceedings solely on the court’s errors in
failing to take judicial notice of the suspensions and investigation because, as explained
next, we will exercise our discretion to take judicial notice of the subsequent convictions
of both Mr. Ewald and Mr. Watkins, as well as the factual proffers supporting those
convictions.
C. Judicial Notice in This Court
1. Judicial Notice of the Ewald Pleas and Proffer
After noting this appeal, AutoFlex asked this Court to take judicial notice that on
May 18, 2023 Mr. Ewald pleaded guilty to felony theft and to misdemeanor misconduct
in office, in accordance with the proffer entered into the record in Circuit Court for
Montgomery County Case No. C-15-CR-23-464. AutoFlex made this request for judicial
50
notice by letter dated June 9, 2023, addressed to the members of this Court and
accompanied by the Ewald Proffer.
In support, AutoFlex asserted that “Mr. Ewald’s guilty plea is highly relevant to
the case at issue” because he “was the Assistant Director of Transportation for MCPS at
the time his criminal activities were discovered[,]” played an important role in contract
negotiations with school bus vendors, and developed a relationship with ATB and its
president that enabled him to “divert money belonging to the school system.” Because
Mr. Ewald used his DOT position to steal “over $320,000 from the public school
system,” AutoFlex maintained that this constitutes the type of “extraordinary” facts that
warrant judicial notice “in order to reach a just result[.]” See State v. Williams, 255 Md.
App. 420, 431 (2022).
In opposition, the Local Board moved to strike AutoFlex’s request for judicial
notice, arguing that it was inappropriately made by letter rather than by motion, that
AutoFlex should not have submitted the proffer before obtaining a ruling on its request,
and that the request otherwise lacks merit. The Local Board also moved for an award of
attorneys’ fees under Md. Rule 1-341.
In reply, AutoFlex submitted the affidavit of a paralegal in its counsel’s office,
recounting contacts with individuals in the Clerk’s Office of this Court, which resulted in
the decision to file AutoFlex’s request for judicial notice by letter, rather than by motion.
In AutoFlex’s view, the Local Board’s argument that these facts should not be judicially
noticed because they were not before the Local Board, the MSBE, or the circuit court,
“misses the point” because even though the proffer “did not exist at that time, . . . it is
51
precisely the type of court document that is clearly judicially noticeable even on appeal –
not merely some other type of proposed supplement to the record.” In any event,
AutoFlex argues, there is no basis for attorneys’ fees under Rule 1-341 given its “good
faith basis for the substance and form of its request for judicial notice[.]”
By order dated June 29, 2023, this Court ruled that we would address AutoFlex’s
request for judicial notice in this opinion but otherwise denied the Local Board’s fee
request. We will grant AutoFlex’s request for judicial notice of Mr. Ewald’s convictions
and supporting proffer.
In our view, the Local Board elevates form over substance when it complains that
AutoFlex was required to file a motion asking this Court to take judicial notice of Mr.
Ewald’s guilty plea and the supporting proffer. Nothing in the rule expressly requires a
motion. Instead, it merely states that parties may “request[]” judicial notice and that
courts may “take” it, even on their own initiative. See Md. Rule 5-201(c)-(d). Nor can
the Local Board claim any prejudice here, where it had opportunity to oppose the request,
and did so. See Md. Rule 5-201(e).
The Local Board does not dispute that Mr. Ewald pleaded guilty based on the
proffer filed by the State or that “‘[p]ublic records such as court documents’ are some of
the most common of the ‘types of information [that] can fall under the umbrella of
judicial notice.’” In re H.R., 238 Md. App. 374, 401-02 (2018) (quoting Abrishamian,
216 Md. App. at 413). Likewise, the Local Board tacitly concedes that the theft scheme
described in the Ewald Proffer, which Mr. Ewald admitted to orchestrating through ATB
after Mr. Watkins enabled him to evade MCPS financial protocols, occurred throughout
52
the period when Mr. Ewald was acting as the Project Contact for the school bus
electrification RFP, and while Mr. Ewald and Mr. Watkins were serving as two of four
MCPS evaluators of the proposals submitted by HET, AutoFlex, and two other bidders.
As the Supreme Court of Maryland has explained, courts may “travel outside the
record of the case before it in order to take notice of proceedings in another case,” by
“mak[ing] use of established and uncontroverted facts not formally of record in the
pending litigation[,]” “in order to reach a just result[.]” Dashiell, 396 Md. at 176
(citations omitted). Cf., e.g., Cochran, Inc., 426 Md. at 145 n.4 (“Both parties
acknowledged during oral argument that these pretrial statements bear on the outcome of
this case, and we believe that a just result will be best reached by considering them.”);
Chesek v. Jones, 406 Md. 446, 456 n.8 (2008) (taking judicial notice of public records
that an appellee included in an appendix to its record extract); City of Hyattsville v.
Prince George’s County Council, 254 Md. App. 1, 68 n.25 (2022) (“In an appendix to its
brief, the District Council included copies of various documents related to subsequent
decisions by the Planning Board and the District Council. This Court may take judicial
notice of the adjudicative facts reflected in those official public documents.”) (citation
omitted). We will take judicial notice of Mr. Ewald’s pleas and proffer in order to reach
a just result by remanding to reconsider the Contract challenges.
In this case, Mr. Ewald’s guilty pleas and supporting proffer are not disputed.
Instead, they are readily confirmed and publicly available on Maryland’s electronic
courts website (known as MDEC). The description of the theft scheme and misconduct
53
set forth in the Ewald Proffer establishes, prima facie, the relevance of these adjudicated
facts to AutoFlex’s claims of favoritism and flaws in the procurement proceedings.
Now that Mr. Ewald’s previously announced suspension and investigation have
ripened into convictions supported by a detailed factual proffer that Mr. Ewald admitted
to as part of his guilty plea agreement, we will exercise our discretion to grant AutoFlex’s
request to take judicial notice of Mr. Ewald’s guilty pleas and proffer, as facts established
by undisputed court records. See Md. Rule 5-201, 7-208. Because Mr. Ewald’s pleas,
convictions, and proffer support AutoFlex’s challenges to the Contract on the basis of
favoritism, material mistakes in procurement proceedings, and appearance of
impropriety, we conclude that a just result will be reached by considering them in
determining whether to remand for further administrative proceedings.
2. Judicial Notice of the Watkins Plea and Proffer
For the same reasons we have taken judicial notice of Mr. Ewald’s pleas and
proffer, we also exercise our discretion to take notice of the subsequent guilty plea by Mr.
Watkins on one misdemeanor count of misconduct in office, as well as his supporting
proffer, which were entered by the circuit court on June 30, 2023. Like Mr. Ewald’s
guilty pleas and proffer, Mr. Watkins’ conviction and proffer are undisputed adjudicated
facts that are prima facie relevant to meaningful review of these procurement proceedings
and the resulting Contract.
54
II. AUTOFLEX’S CHALLENGES TO THE MSBE DECISION
Because this Court’s task is to “look through” the circuit court’s decision, to
review the administrative decision itself, we next address AutoFlex’s challenges to the
MSBE’s order affirming the MCPS’s bus electrification Contract with HET. See Md.
Dep’t of the Env’t v. Assateague Coastal Tr., 484 Md. 399, 446 (2023). AutoFlex argues
that the HET Contract “cannot remain in place” because of the “appearance of
impropriety” by MCPS DOT officials who served as “the project contact for this RFP”
and “the key decisionmaker for the evaluation and award[,]” which “could total $168
million over 12 years, all based on the evaluation by the top MCPS DOT officials who
were later suspended and under criminal investigation.” In addition to establishing an
“appearance of impropriety” in the procurement proceedings for the HET Contract,
AutoFlex contends that such evidence supports its prior contentions that:
[t]he award to HET, and the MSBE Opinion upholding it, are
. . . arbitrary and capricious, and otherwise unlawful, because
the MC Local Board and MCPS excluded the electric bus
manufactured by Lion Electric company; because the MSBE
Opinion conclusion on pricing is not supported by substantial
evidence; because the MC Local Board and MCPS
disregarded AutoFlex’s minority-owned status; and because
the award to HET and MSBE Opinion are not supported by
substantial evidence.
As we have recounted, while this appeal has been pending, the suspensions and
criminal investigation of Mr. Ewald and Mr. Watkins ripened into convictions of these
two key MCPS officials, both of whom undisputedly played direct roles in choosing an
affiliate of the contractor they were exploiting as the winning bidder on this Contract.
Although these convictions occurred after the MSBE reviewed and approved the HET
55
Contract, the misconduct on which those judgments are predicated was occurring
throughout this procurement period, while competing bidders were preparing their
proposals, MCPS was evaluating them and selecting HET, and the Local Board and
MSBE were agreeing to the Contract.
Because such evidence is prima facie relevant to the challenges asserted by
AutoFlex, we will vacate the circuit court’s judgment and remand to the MSBE with
instructions to remand to the Local Board for further administrative proceedings. See SG
§ 10-222(h)(1). The theft scheme detailed in the Ewald and Watkins Proffers establishes
grounds for further inquiry into AutoFlex’s allegations of favoritism, material mistakes
during the procurement proceedings, and apparent impropriety.
Specifically, those proffers revealed that throughout the bidding, evaluation, and
selection of HET as the winning bidder, Mr. Ewald and Mr. Watkins had an “off-the-
books” relationship with ATB and its president. After Mr. Watkins deliberately
circumvented MCPS financial protocols, Mr. Ewald conducted a long-running theft
scheme that put money into his personal pockets based on MCPS’s business dealings
with ATB. Although not yet definitively adjudicated, ATB undisputedly has some
affiliation with HET, the bidder that was awarded the Contract.
Acting with deliberate disregard of MCPS procurement rules, these two DOT
directors had a surreptitious arrangement that enabled Mr. Ewald to steal money owed to
MCPS. In turn, that theft scheme created a strong incentive for Mr. Ewald to use his
positions – as Assistant Director of the DOT, Project Contact for this RFP, and one of
only four evaluators of the proposals – to favor ATB’s affiliate, in order to continue and
56
conceal his crimes. Likewise, the off-the-books account incentivized Mr. Watkins to
favor HET in order to continue and conceal his surreptitious scheme to circumvent
financial and procurement protocols.
MCPS put both officials in position to influence the procurement proceedings for
its bus electrification program. Mr. Ewald was designated the sole Project Contact for
the RFP. Mr. Ewald and Mr. Watkins were two of only four officials on whom MCPS
relied to evaluate the proposals submitted by HET, AutoFlex, and two other competing
bidders.
Such evidence bears on the core credibility and factual disputes central to
AutoFlex’s challenges to the HET Contract. Patently, the Ewald and Watkins
convictions and Proffers could impact a factfinder’s view of AutoFlex’s claims that
MCPS showed favoritism toward HET based on its affiliation with ATB, that it made
material mistakes in evaluating competing proposals, and that the Contract is tainted by
an appearance of impropriety.
For example, when scoring the HET proposal higher than AutoFlex and two other
competitors, did Mr. Ewald or Mr. Watkins factor in their existing off-the-books account
with HET’s affiliate, ATB? Did Mr. Ewald factor in his theft scheme from that account?
Likewise, information relating to the roles played by Mr. Ewald and Mr. Watkins is
relevant to AutoFlex’s allegations that MCPS made material mistakes in evaluating its
proposal, including using unannounced selection criteria, misinterpreting pricing
proposals, and misreporting that AutoFlex is not a minority contractor. Specifically:
57
• Unannounced Selection Criteria/Lion Bus Disapproval. AutoFlex contends
that MCPS, in violation of its contracting rules, improperly used evaluation
criteria that were not included in its RFP or its accompanying responses to
prospective bidders’ questions, as justification for negatively treating AutoFlex’s
inclusion of a Lion Bus alternative to Thomas Built buses, which ATB had been
supplying in diesel form and HET proposed to continue in electric models.5 Did
Mr. Ewald, as DOT’s Project Contact for the RFP, and/or Mr. Watkins, as DOT
Director, manipulate the information that MCPS made available to HET and
competing bidders with respect to including Lion Bus models in proposals?
• Pricing Evaluations. AutoFlex asserts that MCPS arbitrarily disapproved its
pricing structure, including by penalizing its proposal to “frontload” the delivery
schedule for electric buses into the early years of the 12-year contract period,
while rewarding HET for proposing to “backload” the delivery of electric buses in
later years of the contract period. Did Mr. Ewald and/or Mr. Watkins improperly
skew pricing evaluations in a manner that favored HET’s proposal?
• Minority Contractor Status. As MCPS admitted, in its report recommending to
the Local Board that the Contract be awarded to HET, it mistakenly stated that
none of the bidders was a minority contractor. As a result, AutoFlex’s status as a
certified disabled-veteran contractor was not considered. Was MCPS’s failure to
report AutoFlex’s status as a disabled veteran contractor merely an inadvertent
mistake, or instead, omitted to eliminate that advantage over HET’s proposal?
How would consideration of that status have factored into the evaluations?
Neither this Court, nor the circuit court is the appropriate venue to conduct the
proceedings and factfinding necessary to consider these questions about how official
misconduct by Mr. Ewald and Mr. Watkins affected these procurement proceedings and
5
According to AutoFlex, the Lion bus model satisfies the applicable Maryland
regulations requiring the body to be “made of steel, or some equivalent.” Even though
“an MVA advisory committee . . . ha[d] not yet blessed the Lion Bus product,” “the hope
was that it would eventually be approved” sometime during the projected term of the
Contract, given that this model already had been approved under federal standards, so
that the Lion Bus could meet the requirement that it must comply with Maryland
standards in effect “at the time of manufacture.” In support, AutoFlex points to multiple
DOT responses published in its “Q&A” with prospective bidders, as examples of
statements showing that Lion buses were explicitly discussed without any indication that
MCPS would disapprove of including them in a proposal.
58
the resulting Contract. Given the central roles that these two DOT managers
undisputedly played, we will vacate the circuit court’s judgment and remand for further
administrative proceedings. In turn, because the MSBE reviews the Local Board’s
decision under the prima facie correct standard to determine whether that decision was
“arbitrary, unreasonable, or illegal” the MSBE must remand to the Local Board for it to
consider whether and how misconduct by Mr. Ewald and Mr. Watkins influenced the
procurement proceedings and resulting Contract.
CONCLUSION
The circuit court erred in denying AutoFlex’s request for judicial notice of
MCPS’s announcement that its DOT Director and Assistant Director had been suspended
pending criminal investigation of financial improprieties involving an MCPS vendor, in
the mistaken belief that the court could not consider evidence outside the administrative
record in deciding whether to remand to the MSBE. This Court will take judicial notice
of superseding convictions of those two officials based on the stipulated proffers detailing
their official misconduct.
We conclude that the appropriate remedy for the circuit court’s error is remanding
to the MSBE with instructions to remand to the Local Board for administrative review of
the augmented evidentiary record. Because the misconduct of Mr. Ewald and Mr.
Watkins was discovered after the MSBE and the Local Board issued decisions on
AutoFlex’s challenges, neither the Local Board nor the MSBE has had an opportunity to
consider what, if any, significance such evidence has for this procurement, the resulting
HET Contract, and AutoFlex’s challenges to it.
59
Consequently, the Contract must be reviewed in light of the adjudicated facts
supporting the convictions of these DOT directors who were integrally involved in
managing MCPS’s bidding process, evaluating responding proposals, and awarding the
Contract to an affiliate of the vendor they were exploiting. In particular, the Local Board
and the MSBE may consider how these two officials impacted MCPS’s award of the
Contract to HET, including whether they unfairly manipulated MCPS’s procurement
proceedings by favoring HET, using undisclosed selection criteria, failing to consider or
disclose AutoFlex’s status as a disabled veteran contractor, or otherwise asserting
pretextual reasons for selecting HET over other bidders. See SG § 10-222(h)(1);
COMAR 13.A.01.05.06.C. As MCPS acknowledged when publicly announcing the
suspensions and investigation of its top two DOT managers, review of such finally-
adjudicated facts will help in understanding whether and how their misconduct affected
these procurement proceedings and in determining appropriate steps based upon such
findings, the terms of the Contract, and applicable law.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
VACATED;
CASE REMANDED TO THAT COURT
WITH INSTRUCTIONS TO REMAND TO
THE MARYLAND STATE BOARD OF
EDUCATION WHICH IS TO REMAND TO
THE MONTGOMERY COUNTY BOARD
OF EDUCATION FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION.
COSTS TO BE PAID BY APPELLEE.
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APPENDIX
Timeline for the RFP, Contract, and Review
The following timeline summarizes the pertinent pleadings and proceedings:
May 7, 2020: MCPS issued its Request for Information (“RFI”) Number 4916.1,
soliciting information from experienced companies about providing “a turnkey bus
electrification program and all associated operational infrastructure and requirements, at
or near budget neutral to [MCPS] Department of Transportation.”
September 1, 2020: MCPS issued its Request for Proposal (“RFP”) 9462.1, “obtain[ing]
responses from responsible companies who have the experience capability and resources
necessary to provide a turnkey budget neutral school bus electrification program for
Montgomery County Public Schools (MCPS) diesel school bus fleet.” The requested
program would encompass “all planning, implementation, financing, training,
management, and services necessary to convert MCPS’s entire existing diesel school bus
fleet to electric.” Mr. Ewald was identified as the “Project Contact.” (Citations to the
record omitted).
September 22, 2020: MCPS issued a written “Q and A” and Erratum/Addendum #1
with responses to questions raised by companies contemplating bids.
October 6, 2020: By this date, four companies had submitted proposals: AutoFlex,
HET, AlphaStruxure, and First Student. In its proposal, AutoFlex indicated that it was a
Maryland Department of Transportation (MDOT) certified (MBE/DBE # 89-100)
minority and disadvantaged business enterprise, Maryland small business reserve (SBR #
017354), and a federal Veterans Affairs (VA) and State of Maryland verified Service-
Disabled Veteran Owned Small Business (VSBE # 194849865).
December 9, 2020: After an MCPS review committee met and evaluated the proposals,
giving each one points for components in an MCPS rubric, MCPS released a pre-award
notice that it intended to award the RFP 9462.1 contract to HET. Two of the four MCPS
evaluators were Mr. Watkins, DOT Director, and Mr. Ewald, DOT Assistant Director.
December 14, 2020: MCPS officials met with AutoFlex, identifying deficiencies in its
proposal that affected its evaluation scores, which ranked fourth out of the four bidders.
These allegedly included (1) details missing regarding bus parking at schools; (2) missing
infrastructure plan and bus layout for depots; (3) missing implementation timeline; (4)
difficulty in determining how its pricing proposal would be budget neutral; (5) missing
discussion of alternate methods of charging; and (6) inclusion of the Lion bus, which
features non-steel components that comply with Federal Motor Vehicle Safety Standards
(“FMVSS”) but were not authorized in Maryland.
61
December 16, 2020: AutoFlex filed a written protest of the decision to award the
Contract to HET.
January 8, 2021: MCPS denied AutoFlex’s protest.
January 10, 2021: AutoFlex appealed the denial of its bid protest to the MCPS Chief of
Engagement, Innovation and Operations.
February 8, 2021: AutoFlex’s appeal was denied.
February 23, 2021: The MCPS Superintendent formally recommended to the Local
Board that the Contract be awarded to HET. Although AutoFlex is certified as a
disabled-veteran contractor, and claimed that MCPS has a published policy establishing a
goal of awarding at least 10% of total expenditures to contractors with minority, female,
and disabled ownership, when MCPS submitted its standard bid activity report to the
Local Board, it mistakenly stated that it received no such bids.
The Local Board approved a resolution to award a four-year contract to HET, with
provisions extending to 12 years, for a lifetime cost for 326 electric buses of more than
$168 million (the “Contract”).
March 15, 2021: AutoFlex filed an appeal with the MSBE.
July 28, 2021: After a hearing, the MSBE denied AutoFlex’s appeal.
August 19, 2021: AutoFlex petitioned the Circuit Court for Montgomery County for
judicial review of the MSBE decision.
November 16, 2021: The Washington Post reported that “[p]olice are investigating
possible financial improprieties in the transportation department of Maryland’s largest
school system” and a Washington, D.C. area television station reported that two officials
had been suspended pending the investigation and that MCPS officials made public
statements confirming these facts. Donna St. George & Dan Morse, “Police investigating
Montgomery County schools’ transportation department,” WASH. POST (Nov. 16, 2021),
https://perma.cc/4VK7-SKD4.
December 22, 2021: AutoFlex asked the circuit court to take judicial notice of media
reports about the suspension and criminal investigation of the two MCPS DOT managers.
AutoFlex identified the two DOT officials as Mr. Ewald, who served as Assistant
Director of the DOT and was identified in the RFP as the Project Contact to whom all
bidders should address inquiries, and Mr. Watkins, who supervised Mr. Ewald as
Director of MCPS’s DOT and played a key role in the award of the Contract. AutoFlex
maintained that under these circumstances and for reasons detailed in their petition, the
62
Contract with HET should be enjoined and vacated, and the matter remanded for further
administrative proceedings.
March 2, 2022; April 15, 2022: The circuit court held a hearing on AutoFlex’s petition
for judicial review of the MSBE Opinion. AutoFlex argued that the evaluations and
recommendations made by MCPS to the Local Board were predicated on favoritism
toward HET, criteria that were contrary to or not included in the RFP and related
communications, a misunderstanding of AutoFlex’s pricing proposals, and MCPS’s
erroneous report that none of the four bidders was a minority or disabled veteran
contractor. AutoFlex proffered that Mr. Ewald was the Project Contact for bidders and
that Mr. Ewald and Mr. Watkins submitted two of the four DOT evaluations upon which
the MCPS Superintendent relied in recommending approval of HET’s proposal. Counsel
for AutoFlex asked the court to vacate the Contract as approved by the Local Board and
MSBE, and to remand to the MSBE for further proceedings based on the newly
announced criminal investigations that materially undermined review and decisions by
the MCPS, Local Board, and MSBE. The court stated that its review was limited to the
administrative record, so that it could not consider evidence that was not presented to the
Local Board or MSBE.
April 28, 2022: In a written opinion, the circuit court denied AutoFlex’s request for
judicial notice of the suspensions and criminal investigation, then affirmed the MSBE’s
decision to approve the Local Board’s award of the Contract to HET.
May 27, 2022: AutoFlex noted this timely appeal.
May 18, 2023: Under the terms of a plea agreement, Mr. Ewald pleaded guilty in the
Circuit Court for Montgomery County, Case No. C-15-CR-23-464, to one felony count of
theft scheme and two counts of misdemeanor misconduct in office, in accordance with a
plea agreement supported by a proffer detailing how Mr. Ewald used his DOT position to
misdirect payments from ATB to himself, in violation of MCPS procurement policies.
June 9, 2023: After initial briefing, AutoFlex asked this Court, by letter filed in the
Clerk’s Office, to take judicial notice of Mr. Ewald’s guilty pleas and proffer.
June 16, 2023: The Local Board filed a Motion to Strike AutoFlex’s filing, seeking
attorneys’ fees under Md. Rule 1-341.
June 23, 2023: AutoFlex filed an opposition to that motion, accompanied by an
affidavit.
June 29, 2023: This Court denied the Local Board’s fee request and ordered that
AutoFlex’s request for judicial notice of Mr. Ewald’s guilty pleas and supporting proffer
would be addressed in this opinion.
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June 30, 2023: Consistent with a plea agreement and written Proffer of Proof in Support
of Defendant’s Plea of Guilty (the “Watkins Proffer”) that from “at least 2016 and
continuing into September 2021,” Mr. Watkins, who had been the “Director of the
Montgomery County Public Schools Department of Transportation [since] 2009,” “failed
to properly manage the contract for the purchases of school buses and the use of
purchasing cards in his Department such that Mr. Ewald, the Assistant Director of the
Department of Transportation was able to steal over $320,000[,]” Mr. Watkins pleaded
guilty in the Circuit Court for Montgomery County, Case No. C-15-CR-23-712, to one
misdemeanor count of misconduct in office.
September 6, 2023: Mr. Ewald was sentenced to concurrent terms of five years,
suspended, plus five years of supervised probation, and to pay restitution of $74,500,
which according to the State’s sentencing memo is the balance due to reimburse MCPS,
after previous payments made by Mr. Ewald.
September 27, 2023: Mr. Watkins’ sentence was suspended pending three years of
supervised probation with conditions.
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The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0539s22cn.pdf
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