IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT STATE OF ILLINOIS COUNTY OF DUPAGE

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Eustace Gilmore
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1 IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT STATE OF ILLINOIS COUNTY OF DUPAGE VOTEC CORPORATION, A California Corporation ) Authorized to transact business in the ) State of Illinois ) ) Plaintiff ) )Case No. 2015MR vs. ) ) DUPAGE COUNTY ELECTION COMMISSION, an ) Illinois Municipal Corporation, ROBERT T. SAAR,) JOSEPH H. SOBECKI AND DONNA MORRISON, ) RESPECTIVELY EXECUTIVE DIRECTOR, ASSISTANT ) EXECUTIVE DIRECTOR AND FOIA OFFICER OF THE ) DUPAGE COUNTY ELECTION COMMISSION, CATHY ) TERRILL, CHRISTOPHER HAGE, AND ART LUGWIG, ) RESPECTIVELY, CHAIRPERSON, VICE CHAIR AND ) SECRETARY OF THE DUPAGE COUNTY ELECTION ) COMMISSION, ROBERT MENEGHINI AND KATHY ) OSTROWSKI, RESPECTIVELY, CHIEF PROCUREMENT ) OFFICER AND ADMINISTRATIVE ASSISTANT TO CHIEF ) FINANCIAL OFFICER/FOIA OFFICER OF THE ) DEPARTMENT OF FINANCE OF DUPAGE COUNTY ) ) Defendants, ) COMPLAINT TO REVIEW THE FINAL DECISION OF THE ELECTION COMMISSION OF DUPAGE COUNTY DENYING PLAINTIFF S POST-AWARD PROTEST OF AWARD OF CONTRACT UNDER RFP P Plaintiff VOTEC CORPORATION, a California Corporation authorized to conduct business in Illinois ( Plaintiff ) a party to the administrative proceedings occasioned by its filing a Post-award Protest ( Protest ), by and through its attorney, hereby: A. submits its Complaint to review the record of Plaintiff s Postaward Protest ( Protest ) culminating in the final decision of the Chairperson of the DuPage County Election Commission one of the defendants ( Defendant Terrill ), denying Plaintiff s appeal of a denial of its Protest; B. requests that Defendants DuPage County Election Commission and John Meneghini, Chief Procurement Officer prepare and file a complete record of the Protest; and 1

2 C. review the final decision of Cathy Terrill, Chairperson of the DuPage Election Commission. In support of its Complaint, Plaintiff states as follows: I. JURISDICTION AND VENUE 1. The events of this Protest all occurred in DuPage County and all Defendants have offices at 421 North County Farm Road, Wheaton, DuPage County, Illinois. 2. A written final decision by Defendant Terrill was transmitted to Plaintiff counsel, by three separate s on March 27, 2015 at 7:15:18pm, 7:16:26pm and 7:18:08:pm, respectively, well past the close of business hours of the Defendant Commission ( Defendant Commission ), and Plaintiff s counsel. 1 Internet Records of Send/Receive information are attached as Exhibits A, B, and C ILCS 5/3-103 provides that every action to review a final administrative decision shall be commenced by filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision. 4. De jure service of the final decision occurred on Monday, March 30, 2015: commencement of the 35 day filing period began on that date. 5. The 35 th day is May 4, 2015: the Complaint is timely filed. 6. Therefore, pursuant to 735 ILCS 5/3-104 jurisdiction and venue are in the Circuit Court of the 18 th Judicial Circuit. I. BACKGROUND 7. On November 20, 2014, Plaintiff filed a Post-award Protest ( Protest ) with the DuPage County Procurement Services Division on behalf of the DuPage County Election Commission ( Commission ), protesting the award of a contract for electronic notebooks to a company named Hart Intercivic. A copy of the Protest is attached as Exhibit D 8. On the same November 20, 2014, after submission of its Protest, Plaintiff submitted a FOIA request ( FOIA 1 ) to the FOIA officer of the Department of Finance, ( Defendant Ostrowski ) the party designated in the procurement action to receive FOIA requests. A copy of FOIA 1 is attached as Exhibit E. 1 Plaintiff understands that the Defendant Commission may have had an official meeting commencing after the 4:30pm regular close time, and ending possibly as late as 5:30pm. Even if the March 27 business day closed at 5:30pm, the transmissions of the Defendant Terrill s denial did not commence until 1hr. and 45 minutes after the later close of business on that day. 2

3 9. On December 11, 2014, Plaintiff submitted a second FOIA ( FOIA 2 ) request when initially it did not receive a timely response, and then the response it did receive did meet the requirements of the Illinois Freedom of Information Act, 735 ILCS 140. A copy of FOIA 2 is attached as Exhibit F. 10. On December 27, 2014, Plaintiff submitted FOIA request #3 to inspect the Defendant Commission records in person because the Defendant Ostrowski had not responded to its FOIA 2 of December 11, This request was supplemented by an transmitted to the Defendant John Meneghini, Chief Procurement Officer of the Department of Finance ( Defendant Meneghini ) on January 5, 2015 A copy of FOIA 3 is attached as Exhibit G 11. On January 23, 2015, Plaintiff ed FOIA #4 to Defendant Meneghini regarding the latter s failure to provide responses to questions of Plaintiff s counsel during inspection of records on January 7, A copy of FOIA 4 is attached as Exhibit H 12. On February 4, Mr. Sean Conway, attorney with Bond-Dickson, outside counsel for the Defendant Commission, contacted Plaintiff s counsel regarding lack of adequate responses to Plaintiff s several FOIA requests. Mr. Conway pledged to have Defendant Commission staff review its files for the protested award for electronic polling books to Hart Intercivic. At Mr. Conway s request, Plaintiff filed FOIA request #5 on February 6, On February 11, 2015, Plaintiff filed an Amended Post-award Protest ( Amended Protest ) although it was still without complete responses to its FOIA requests, to guard against a denial of its protest on grounds that it was too late to re-evaluate or re-bid the procurement due to the proximity of April 2015 local elections at which the Hart Intercivic electronic polling books were to be used on a pilot basis. The Amended Protest expressly noted the absence of complete responses to the several FOIA requests, and reserved the right to further amend its Amended Protest upon receipt and review of records from the Defendant Commission s FOIA officer ( Defendant Morrison ). A copy of the Amended Protest with exhibits is attached as Exhibit I. 14. On February 20, 2015, Defendant Morrison responded to Plaintiff s FOIA 5, citing exemptions from disclosure for a number of categories of records requested pursuant to 5 ILCS 140(1)(f) On February 24, 2015, Plaintiff requested clarification of the Defendant Morrison s February 20 response letter. Copies of 2 Plaintiff has prepared an appeal of the Defendant Morrison s exemption claims, to be filed in the Circuit Court of the 18 th Judicial Circuit. 3

4 Defendant Morrison s response and Plaintiff s request for clarification are attached as Exhibits J and K. 16. On February 27, 2015, after complete review of the records provided by the Defendant Morrison, Plaintiff advised her that its responses were not complete in respect of attendance at meetings of the committee evaluating the submitted proposals, and filed yet another FOIA (#6), for the missing information. A copy of FOIA 6 is attached as Exhibit M 17. On March 2, 2015, the Defendant Meneghini refused Plaintiff s request to extend time to submit its 2 nd Amended Post-award Protest due to incompleteness of Defendant Morrison s February 20 FOIA responses. A copy of the refusal to extend is attached as Exhibit O. 18. On March 27, 2015, Defendant Terrill transmitted her denial of Plaintiff s appeal via three s, created at just after 7:15pm, 7:16pm and 7:18pm. A copy of the Denial is attached as Exhibit P. Note copies of the s are attached as Exhibits A, B and C. 19. Plaintiff submitted its Complaint for Review of a final decision on Monday, May 4, II. ARGUMENTS OF COMPLAINT FOR GRANTING RELIEF TO PLAINTIFF 20. The sole process for obtaining records relating to the procurement from its inception in April 2013 through an RFP issued in November 2013, and withdrawn before award, through the RFP issued in August 2014, from which an award was finally made, was through FOIA. 21. Protester s ability to mount a meaningful protest of the material defects in Defendant Commission, Defendant Saar and Defendant Sobecki s substantive and procedural administration of the procurement action was inextricably bound to its ability to secure timely, complete and accurate FOIA responses. However, from the outset, the Defendant Commission in the person of its staff, and the Defendant Meneghini thwarted Protester s ability to prepare the strongest possible protest by delay and obfuscation. 22. Protester filed six FOIA requests over a period of three months November 20, 2014 through February 27, The filings were essentially the same each time, requesting records as set forth in its initial FOIA of November 20, The multiple FOIAs were necessary because not one response was complete and accurate as required by the FOIA Act. What Plaintiff experienced was a dribbling out of records over time, but never completely. 4

5 23. Significantly, the responses from the Defendant Morrison were less complete than the responses obtained from the Defendant Meneghini. The latter provided records which could only have been produced by the evaluation committee, while the former failed to provide the same records as Defendant Meneghini did. Further, among the records it did provide, virtually all were redacted while the same documents provided by the Defendant Meneghini were not. 24. It is undisputed from the minutes of the September 25, 2014 Defendant Commission meeting that Defendant Terrill asked Defendant Commission staff to include her in the proposal evaluation process, notwithstanding that she was a member of the body which would vote to approve recommendations of the evaluation committee of which she was a putative member. 3 A copy of the meeting minutes is attached as Exhibit Q. 25. In its appeal to Defendant Terrill, Plaintiff expressly asked she recuse herself on grounds that her participation in the evaluation committee s work and, approval of its recommendations for award, was highly inappropriate, at best, as it created an appearance of bias, and at worst, may have constituted a conflict of interest. Defendant Terrill s final decision denying Protester s protest failed to address this significant matter, period. SEE Exhibit P 26. Protester s assertion that Defendant Commission failed to have adequate records of the procurement process, relies on the language found in the Commission s Procurement Ordinance ( Ordinance ), Part C, Section Election Commission Procurement Records, Paragraph (1): All determinations and other written records and notes of telephone conversations and oral conversations pertaining to the solicitation, award and performance of a contract shall be maintained for the Commission in the procurement records in the Procurement Services Division and Paragraph (3): Retention of Procurement Records. All procurement records shall be retained and disposed of in accordance with records retention guidelines and schedules approved by the State of Illinois Local Records Commission. 27. Defendant Terrill s rejoinder to Protester s assertions is that the Ordinance does indeed require that records be maintained, but that it does not mandate that records be created. This argument if accepted, violates what surely was a key intent of the Ordinance, to ensure transparency in awarding contracts whether competitively bid or not. 28. That Defendant Terrill s argument should be rejected out of hand is exemplified by considering Paragraph (2) of Section 4-302, which states: Contract Audit. The Commission shall be entitled to have audited the books and records of a contractor or a subcontractor at 3 It is possible that Election Commission Vice Chair Christopher Hage also participated in the evaluation committee deliberations based upon official minutes of the same September 24 meeting. 5

6 any tier under any contract or subcontract to the extent that such books, documents, papers, and records are pertinent to the performance of such contract or subcontract. The contractor or subcontractor shall maintain such books and records for a period of three years from the date of final payment. As in Paragraph (1), the language used is maintenance of records. It does not require creation of records. 29. Surely no one would argue that contractors and sub-contractors are merely required to maintain records, not create them. Such an interpretation would render the Commission s right to audit contractors and sub-contractors meaningless. It defies all logic that the Commission in adopting its ordinance did not intend to have an absolute right to audit the entities it awarded contracts to. It is a well established principle that a legislature does not pass meaningless laws. That presumption applies to the Election Commission as much as it does to the legislature in Springfield, or Washington, D.C. 30. Defendant Terrill s interpretation of the Ordinance s language on procurement records that there is no obligation to create, merely to maintain what one chooses to create. III REQUEST FOR RELIEF Protester asks this Court to enter an order in favor of Plaintiff and against Defendants as follows: 1. Defendant Commission immediately move to terminate the Hart Contract for the convenience of the Commission 2. Defendant Commission immediately move to re-evaluate all proposals received, and create and maintain records of all deliberations in the evaluation process. 3. Or in the alternative, order Defendant Commission to re-solicit proposals for providing Electronic Poll Books if Defendant Commission determined it could complete a new procurement action in time for the 2016 Federal, State and local elections, including performing adequate testing to assure the product purchased performs in accordance with specifications. 4. The Court take judicial notice of Protester s filing an appeal of Defendant Morrison s assertion of exemption under FOIA, to providing records of deliberations of the evaluation committee in evaluating submitted proposals and consider it as a basis for finding in Plaintiff s favor of its Protest. 5. Alternatively, if it is determined that Federal grant funds awarded to fund the Hart Contract, which have been paid in advance, cannot be easily recouped, than grant Plaintiff the costs of preparing its proposal, and pursuing this Protest, including reasonable attorney s fees. 6

7 6. Protester shall be awarded such additional relief as is determined to be just and fair. Respectfully submitted, James P. Rome, Counsel for Protester Votec Corporation PREPARED BY: JAMES P. ROME, LTD. # COUNSEL FOR PLAINTIFF 517 LAVERGNE AVENUE WILMETTE, IL TEL: jim@jamespromelaw.com 7

Authorities Budget Office Policy Guidance

Authorities Budget Office Policy Guidance No. 10-03 Date Issued: April 12, 2010 Supersedes: 07-04 Subject: Posting and Maintaining Reports on Public Authority Web Sites Statutory Citation: Chapter 506