HarpData tries, tries again

Company got now delayed wi-fi contract under curious circumstances. When it bid on another job, district said "no."

HarpData, already months behind completing a project to provide wi-fi access to thousands of Buffalo students, sought work on another school district job earlier this year and is now complaining it didn’t get the contract.

The district’s purchasing director rejected the company’s bid, deeming HarpData a “non-responsible bidder.” 

Now, three months later, HarpData is crying foul. Two weeks ago, months after the deadline to object had passed, the company filed a formal protest with the School Board, alleging irregularities in the procurement process and bias on the part of the district’s purchasing director. 

But district officials are adamant they had good reason to disqualify the company’s bid,  asserting HarpData failed to disclose legal and financial issues in its bid documents.

“Our purchasing director deemed HarpData a non-responsible bidder because a company is supposed to disclose any liens and judgments against it,” Nathaniel Kuzma, the school district’s general counsel, told Investigative Post.

Specifically, Kuzma said, HarpData failed to reveal an $800,000 judgment against the company and its CEO, Ivory Robinson Jr.

Beginning in April, Investigative Post has documented questions about HarpData and the district’s Connected Communities project, which aims to provide free wi-fi to the homes of 5,500 Buffalo Public Schools students in low-income neighborhoods, where lack of internet access creates educational inequities. 

Most recently, Investigative Post published communications between district officials — including the district’s purchasing director, general counsel and chief financial officer — concerning the manner in which HarpData was awarded the Connected Communities project, the company’s ability to deliver the project, and whether the firm’s proposal was technically sound. 

Among the worries the officials discussed were indications HarpData had cash-flow issues, stemming from legal problems, and might lack the cash or credit “to float our contract with them.”

One of those indications was an $800,000 judgment levied against HarpData and its CEO in August 2019, just weeks after the School Board awarded HarpData the $1.3 million Connected Communities contract. 

The judgment resulted from an ongoing dispute with a former business partner, Core BTS, which alleges HarpData breached its contract. The project that led to the dispute involved updating IT infrastructure for Erie County Medical Center and Kaleida Health. Kaleida Health has since sued HarpData, as well, seeking financial damages.

HarpData was not obligated to disclose the $800,000 judgment when bidding on the Connected Communities project last spring, Kuzma told Investigative Post, because the judgment was levied after that contract was awarded. 

But the company was obligated to disclose the judgment in its bid for the new, unrelated project this spring, Kuzma said. It didn’t.

And there was little chance the district would have failed to notice the omission. 

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In February of this year, the school district was served with a restraining order, instructing officials that any money owed HarpData for the Connected Communities project was to be paid instead to a law firm to hold in escrow, to guarantee settlement of the $800,000 judgment.

For the district, that restraining order was just one bump on a long, rocky road: unusual billing requests; questions about the project’s technical viability; and concerns about the role the district’s former technology officer, turned paid consultant to HarpData, and whether he may have helped the company land the project.

On Dec. 4, the district’s purchasing director, Richard Fanton, summarized his concerns about HarpData and Connected Communities in a memo to the district’s chief financial officer, Geoffrey Pritchard. 

Those concerns were brought to Superintendent Kriner Cash on Dec. 6, with a recommendation Cash consider canceling the contract and starting fresh. Cash instructed his staff to “continue with Harp Data,” according to an email exchange among his senior staff.

Robinson cited that Fanton’s memo in his June 15 letter to the Buffalo Board on Education, as evidence of Fanton’s bias:

We would request the Board to review the June 9, 2020 Investigative Post online article concerning the Board’s November 2019 contract award of RFP #19-0620E4-105 Connected Communities – Public Wi-Fi for Students to HarpData. The article contains a December 4, 2019 Memo from Richard Fanton strongly critical of HarpData being awarded the contract. We are concerned whether Mr. Fanton’s actions in writing the memo affected his decision to disqualify HarpData… 

The contract award is for maintenance and updates to the district’s wired and wireless network equipment, and broadband access for the district’s Middle Early College program.

In his letter, Robinson suggested the contract was steered deliberately toward the company that won it, Alternative Information Systems. Specifically, Robinson alleged AIS was permitted to submit two proposals, the second one only after the other bids had been opened. 

AIS’s first proposal, Robinson alleged, should have been disqualified because the equipment it specified did not comply with the district’s requirements. The second proposal, Robinson argued, should not have been allowed at all.

But for the disqualification, HarpData would have been the low bidder on the project. HarpData bid $2 million. AIS’s first bid was $2.3 million; its second bid, which won the project, was $2.7 million.

The district maintains HarpData’s bid was disqualified, so the dollar amount is immaterial.

HarpData BPS Protest Bid Protest Committee (Text)

Robinson is not the first local IT company to suggest that AIS has won school district contracts that should have gone to other companies. In 2017, Advance2000 filed an Article 78 lawsuit alleging the district’s IT and purchasing departments bent over backward to steer work to AIS, sometimes breaking state procurement laws to do so. The lawsuit was dismissed, but the School Board refused to award AIS the contract that led Advance2000 to sue. 

Regarding HarpData’s recent bid protest, Kuzma said an objection to an award must be filed within five days, though he said the COVID-19 shutdown permitted some elasticity to such deadlines.

Nonetheless, he said, Robinson’s letter arrived nearly three months after the contract was awarded. It seemed driven not by any previous objection to the contract award, Kuzma said, but by the Investigative Post article Robinson cited.

Kuzma dismissed Robinson’s suggestion that Fanton is biased against HarpData as “baseless and frivolous.” Fanton’s decision to memorialize his concerns about HarpData and Connected Communities, Kuzma said, “quite honestly was him doing his job.”

Robinson would be better served focusing on completing the Connected Communities project, Kuzma said, rather than “dwelling on” email exchanges and a memo circulated seven months ago.

The Connected Communities project — which Robinson once forecast would be finished “in the early part” of 2020 — now has a delivery date of November, according to Robinson’s attorney. 

“Our focus is to ensure that his company delivers a good project on the timetable we have now,” Kuzma said. “He has the opportunity to do good work for us right now.”