HomeMy WebLinkAbout1520 BOLINGERIn Re: Craig Bolinger,
Respondent
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
08 -020
Order No. 1520
7/8/09
7/10/09
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." An Answer was filed and a hearing was waived. The record
is complete.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
Bolinger, 08 -020
Page 2
I. ALLEGATION:
That Craig Bolinger, a (public official /public employee) in his capacity as
Transportation Facilities Administrator 3 violated the following provisions of the State
Ethics Act (Act 93 of 1998) when he used the authority of his public position for a private
pecuniary benefit by directing that contractors for the Department of Transportation
provide personal items to him at no cost at a time when he was reviewing and approving
contracts for vendors who provided him with items used for his personal purposes.
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
II. FINDINGS:
Pleadings
1 The Investigative Division of the State Ethics Commission received information
alleging that Craig A. Bolinger violated provisions of the State Ethics Act (Act 93 of
1998).
2. Upon review of the information the Investigative Division initiated a preliminary
inquiry on April 1, 2008.
3. The preliminary inquiry was completed within sixty days.
4. On May 28, 2008, a letter was forwarded to Craig A. Bolinger by the Investigative
Division of the State Ethics Commission informing him that a complaint against him
was received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7007 0220 0001 4375 2945.
b. The domestic return receipt bore the signature of Craig Bolinger, with a
delivery date of May 31, 2008.
Bolinger, 08 -020
Page 3
5. On September 5, 2008, the Investigative Division of the State Ethics Commission
filed an application for a ninety day extension of time to complete the Investigation.
6. The Commission issued an order on September 22, 2008, granting the ninety day
extension.
7 On November 12, 2008, the Investigative Division of the State Ethics Commission
filed an application for a second ninety day extension of time to complete the
Investigation.
8. The Commission issued an order on December 4, 2008, granting the ninety day
extension.
9. Periodic notice letters were forwarded to Craig Bolinger in accordance with the
provisions of the Ethics Act advising him of the general status of the investigation.
10. The Investigative Complaint /Findings Report was mailed to the Respondent on May
14, 2009.
11. Craig A. Bolinger was employed as a Transportation Facilities Administrator III with
the Facilities Management Division (hereafter FMD), Bureau of Office Services,
Deputate of Administration, Pennsylvania Department of Transportation (hereafter
Department) from approximately October 1987 through June 1, 2007.
a. Bolinger held the following positions with the Department at various points
over the time frame of October 1987 to October 2001:
1. Energy Technician;
2. Transportation Construction Inspector;
3. Transportation Construction Inspector 2;
4. Transportation Construction Inspector 3;
5. Transportation Construction Inspector Supervisor;
6. Transportation Facilities Administrator I /Facilities Maintenance
Manager 1; and
7. Transportation Facilities Administrator 11.
b. Bolinger held the position of Transportation Facilities Administrator 111 from
October 27, 2001, to June 1, 2007, when he resigned.
c. Bolinger submitted a letter of resignation to the Department expressing a
desire to separate from his regular status position as a Transportation
Facilities Administrator 111 (hereafter TFA 111).
d. The Department accepted Bolinger's resignation to be effective June 1,
2007, via letter dated January 18, 2008.
1. Bolinger was the subject of an Office of Inspector General
Investigation culminating in his suspension on April 28, 2007 *, and
his ultimate resignation.
Bolinger, 08 -020
Page 4
*[Cf., compare Fact Finding 71 (2) as to the date of the suspension.]
12. Bolinger's position description as a TFA III (a /k/a Regional Facilities Manager RFA)
defines the position purpose as, "Supervises lower level Transportation Facility
Administrators in the planning and coordination of services associated with building
design, maintenance, construction, and repair for all facilities within the Southern
Region, Districts 8, 9, 11, 12" and notes, in part, the following duties and
responsibilities:
a. Assesses need and recommends prioritization of facility maintenance and
replacement projects within the region based on available fiscal, material,
and human resources;
b. Reviews and negotiates the annual and special budgetary requirements for
the region;
c. Assists with facilities division budget and insures all funding is spent wisely
and effectively;
d. Provides budget reports for planning purposes for all facilities projects as
needed and provides budget reports for planning purposes for all facilities
projects within the region;
e. Insures contractor invoices are processed properly and timely for the
region's projects;
f. Reviews and evaluates the oversight provided by lower level Transportation
Facility Administrators during building design, construction, maintenance,
repair, relocation, and demolition projects at Engineering District Offices,
Welcome Centers, Roadside Rests, County Offices, Maintenance Sheds,
Drivers License Centers, Stocking Areas, Keystone Building, Riverfront
Office Center or similar facilities as required;
Responds to facility emergencies 24 -7 and ensures that the Department
facilities are operational as soon as possible;
g.
h. Administers the Penn State Database and serves as the liaison with PSU on
database development and troubleshooting; and
Develops life cycle cost analysis for Department facilities for region.
13. The FMD is part of the Bureau of Office Services, Deputate of Administration, of the
Department.
a. The FMD is responsible for providing technical support and infusion of
money into individual districts and counties regarding new construction,
building maintenance and remodeling, emergency repairs, paving, etc.
b. Buildings supported by the FMD include, but are not limited to, employee
staging areas, salt storage buildings (a /k/a huskies), roadside rest stations,
county /district offices, weigh stations, driver's license centers, etc.
14. The Commonwealth is divided into four separate regions (Northern, Southern,
Eastern, and Central) regarding FMD operations.
a. Each region was overseen by a TFA 111 and was composed of specific
Department districts during Bolinger's tenure with the exception of the
Bolinger, 08 -020
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Central region as shown below:
Northern Southern Eastern
District 1 District 8 District 4
District 2 District 9 District 5
District 3 District 11 District 6
District 10 District 12
Central
Note: Represents regional /district alignment prior to Bolinger's separation.
1. The Central region primarily addresses the administration of the FMD
and is not composed of specific districts.
aa. The Central region is based in Harrisburg, PA.
2. Each district is overseen by a TFA 1 or 11 (a /k/a District Facility
Administrator) and is composed of various counties.
15. Bolinger was assigned oversight of the Southern Region for the FMD in his position
as a TFA 111.
a. Counties composing the four districts in the Southern Region are as follows:
District 8 District 9 District 11 District 12
Franklin Somerset Beaver Westmoreland
Adams Cambria Allegheny Washington
Cumberland Blair Greene
Perry Huntingdon Fayette
Dauphin Fulton
Lebanon Bedford
York
Lancaster
Note: Represents regional /district alignment prior to Bolinger's separation.
1. Emmanuel Walker was the TFA assigned to District 8.
2. Jack Rice was the TFA assigned to District 9.
3. James Kirkpatrick was the TFA assigned to Districts 11 and 12.
aa. Kirkpatrick was initially assigned only District 11 but was
assigned District 12 upon Bolinger's promotion to the Southern
Regional Facilities Administrator.
bb. Bolinger served as the District Facilities Administrator for
District 12 prior to his promotion.
16. The FMD operates as a management /supervisory arm to ensure that Department
projects undertaken are completed per the documented project scope,
specifications, etc.
a. The FMD has no laborers or field employees with the exception of Regional
and District Facility Administrators.
b. The majority of construction work which is managed by the FMD is
performed under contract by outside vendors.
Bolinger, 08 -020
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17. The Department has invited contractors to respond to an Invitation To Qualify (ITQ)
for Facility Construction, Renovation, and Inspection Services since at least
October 24, 2001.
a. The ITQ is assigned an actual contract number under which a specific scope
of work may be completed.
1. From at least October 24, 2001, through December 31, 2005, the ITQ
for FMD related projects /services was documented under Contract
Number 359002.
2. From approximately January 1, 2006, through December 31, 2011,
the ITQ for FMD related projects /services has been /will be
documented under Contract Number 354102.
b. The ITQ documents qualification requirements, contract terms and
conditions, special requirements and specifications, service type and
location information, etc., via various exhibits (i.e. Exhibit A, Exhibit B, etc.).
18. In order to qualify for the ITQ program, interested contractors are required to
complete the contractor's signature page of the ITQ as well as any specific Exhibits
as documented in the ITQ Table of Contents and return the documents to the
Department's Bureau of Office Services located in Harrisburg, PA.
a. The ITQ requires that contractors complete a Service Type and Location
Sheet on which the contractors identify the following:
1. Company or individual name and Federal Identification or Social
Security Number;
2. The services the company or individual wishes to provide
distinguished by category and sub - category (i.e. Architectural:
General, Roofing, Windows, Doors, etc.; Mechanical: Heating /Air
Conditioning, Plumbing, etc.; Inspection Services: General, Roofing,
Masonry /Concrete, etc.).
3. The County /Counties where the company or individual wishes to
provide services.
19. Contractors meeting all qualification requirements as contained in the ITQ are
added to the Department's list of approved contractors.
a. Being qualified as an approved contractor on the ITQ does not guarantee
the awarding of projects to the contractor under the ITQ contract number.
1. Being qualified as an approved contractor on the ITQ guarantees only
the opportunity to bid on projects that require competitive bidding.
20. Projects planned by the FMD are governed by cost thresholds established by the
PennDot Procurement Manual and the Department of General Services Field
Procurement Handbook.
a. Cost threshold information is also documented in the ITQ in effect at the time
of the project.
21. The ITQ under Contract Number 359002 noted cost thresholds in effect under
Bolinger, 08 -020
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Exhibit C — Special Requirements and Specifications, Sections 1 (General) and 2
(Procedure).
a. Section 1 documented that services provided must cost less than
$100,000.00 per project including both materials and labor.
1. All aviation projects, except vertical construction projects, were
exempt from the dollar limit.
b. Section 2 documented that any project costing less than $3,000.00 did not
require competitive bidding.
c. Section 2 documented that any project totaling over $3,000.00 including
materials and labor required the invitation of a minimum of three contractors
prequalified in the service type and county where the work was to be
performed to bid on the project.
22. Any project requiring services, including both labor and materials, which totaled
between $10,000.01 and $100,000.00 required the following of the competitive bid
process.
a. Any services /project totaling more than $100,000.00 required a Delegation
from the Department of General Services in order for the Department to
maintain control of the project.
1. The Department was specifically issued a Delegation from the
Department of General Services, Bureau of Engineering and
Architecture on December 2, 2003, relating to the design, bid, and
construction of salt storage buildings with construction cost estimates
not exceeding $500,000.00.
2. The Delegation granted for salt storage buildings was specifically
incorporated into the ITQ under Contract Number 354102.
23. The ITQ under Contract Number 354102 also noted cost thresholds in effect under
Exhibit C — Special Requirements and Specifications, Sections 1 (General) and 2
(Procedure).
a. Section 1 documented that facility projects, including both materials and
labor, must not exceed $100,000.00 per project and salt storage buildings
must not exceed $500,000.00 per project.
1. All aviation projects, except vertical construction projects, were
exempt from the dollar limit.
b. Section 2 documented that any project costing Tess than $3,000.00 did not
require competitive bidding.
1. Although not documented on the ITQ, currently any project totaling
Tess than $5,000.00 does not require competitive bidding.
c. Section 2 documented that any project totaling over $3,000.00 including
materials and labor required the invitation of a minimum of three contractors
prequalified in the service type and county where the work was to be
performed to bid on the project.
1. Although not documented in the ITQ, the current cost threshold for a
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Page 8
minimum of three quotes is set at $5,000.00.
24. Any project requiring services, including both labor and materials, which totaled
between $10,000.01 and $100,000.00 required the following of the competitive bid
process.
a. Any project totaling more than $100,000.00 required a Delegation from the
Department of General Services in order for the Department to maintain
control of the project.
25. Exhibit C — Special Requirements and Specifications of the current ITQ and the
prior ITQ both include a provision related to contractor performance.
a. Contractors who perform poor work, do not provide services on time, or
engage in other unacceptable conduct are to be entered into the
Commonwealth's Contractor Responsibility Program (CRP).
1 The purpose of the Contractor Responsibility Program is to ensure
that the Commonwealth contracts only with responsible contractors
and that the Commonwealth collects any obligations owed to it
through offset review as documented in Management Directive 215.9
(amended).
2. "Other unacceptable conduct" is not defined in the past or current
ITQ.
b. Entries into the Contractor Responsibility Program may be considered in
determining whether to exclude a contractor from award of assignments
under the ITQ and may lead to termination of a Contractor's Contract.
26. Projects to be undertaken by the FMD within the four geographical regions of the
Commonwealth are primarily determined via the development of a four -year plan for
each District in each respective region.
a. Four -year plans are normally generated by the DFA with the assistance of
the County Manager from each county which composes the District.
b. Four -year plans identify what the DFAs and County Managers desire to
accomplish in the next four years relating to new construction, remodeling,
etc.
1. Although developed for a four year period, the plans are constantly in
a state of flux as a result of unplanned situations (i.e.
emergency /unexpected repairs, maintenance, etc.).
c. Once compiled, the four year plans are presented to the RFA for review and
input.
d. Bolinger, in his capacity as the RFA, would review and approve all four year
plans for his region that were to be submitted to the Division Chief.
27. The RFAs subsequently attend a budget meeting at the Bureau of Office Services
central office in Harrisburg, PA with the Division Chief of the FMD to request a
dollar amount regarding funding for the projects identified.
a. The Division Chief subsequently allocates a lump sum funding figure to each
RFA's region.
Bolinger, 08 -020
Page 9
1. The RFA determines the amount of funds to be allocated to each
district for upcoming projects.
2. Projects to be completed are prioritized based on available funds.
b. Bolinger would attend and participate in budget meetings regarding funding
to be provided for projects in his region.
28. The general process by which an FMD project is created and bid is accomplished
through a multi -step procedure as detailed below:
a. Determination of the need for the project by the applicable DFA who then
consults with the applicable RFA.
b. Initial "building" of the project by the DFA via entry into the Penn State
Facilities Engineering Institute database if the cost estimate is under
$100,000.00 (based on prior projects, cost familiarity, etc.).
1. Initial building of the project requires the entry of a general scope of
work and estimated cost for the project.
c. Once entered, the database generates and assigns an FM Number
(sequentially) to the project and sends an e-mail to the RFA to approve the
project.
1. The e -mail documents the funding source for the project, what the
project is, etc.
d. Once the RFA approves the project, an e-mail documenting the approval is
sent back to the DFA.
e. After receiving approval from the RFA, the DFA continues to build the project
via step -by -step entry fields in the database including but not limited to
specifications, prevailing wage information, pre -bid meeting date, bid due
date, routing slip information, submission to Graphics, etc.
1. Entry of the routing slip information informs the FMD purchasers at
the Central Office to send the bids to all applicable contractors on the
ITQ, the DFA, and the RFA.
2. Submission to Graphics indicates that the project has been submitted
to Graphics and that all information entered by the DFA, including
contractor names from the ITQ, is correct as verified by the
purchaser.
f. Graphics prints all of the required project information for each contractor
identified and supplies it to the purchaser who subsequently mails the actual
packet to the contractors.
1. The packet provided includes a pre -bid meeting response document,
a bid sheet, and project identification (i.e. scope of work,
specifications, etc.).
aa. The pre -bid meeting response document identifies the time
and place of the pre -bid meeting as well as if the pre -bid
meeting is or is not mandatory.
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Page 10
1. All pre -bid meetings are currently mandatory.
bb. The pre -bid meeting response document is typically faxed to
the DFA and serves as notification regarding those contractors
planning on attending the meeting.
29. The DFA is required to attend the pre -bid meeting to provide clarification and
explanation of the project, answer questions on the project, and detail the scope of
work associated with the project.
a. The DFA is to take minutes of the pre -bid meeting to include the time, date,
those present, and notes of the meeting.
b. Any modification or change in the scope of work as a result of the pre -bid
meeting is required to be documented in the meeting minutes.
1. A written addendum of the changes is required to be provided to all
contractors present at mandatory pre -bid meetings and to the
applicable Purchasing Agent for inclusion in the project file.
aa. If the pre -bid meeting is not mandatory, the addendum must be
provided to all contractors invited to bid.
c. James Kirkpatrick, DFA for the Southern Region, was the individual
responsible for attending pre -bid meetings and reporting to his supervisor,
Bolinger.
30. Contractors interested in the project must submit a written bid, based on the final
scope of work and any changes in specifications, with all required bid documents.
a. Bids are to be submitted on the bid sheet supplied in the project packet
distributed.
b. Bid[s] are to be submitted to the Purchasing Agents at the Bureau of Office
Services Central Office in Harrisburg, PA via fax, mail, electronic
transmission, or hand delivery prior to the specified due date.
1. The bid due date and time are specified on the bid sheet provided in
the project packet.
31. Once the bid deadline has passed, bids received are reviewed by at least two
Bureau of Office Services Purchasing Agents and the low bidder for the project is
determined.
a. Bids received are documented on a Summary of Bids form.
1. Information noted on the Summary of Bids includes all contractors
(name, address, and contact information) to which project packets
were distributed, actual bids submitted, the project (FM) number, the
bid opening time and date, and the signature of the witnesses to the
bid opening.
b. The Purchasing Agent assigned to the project subsequently issues a Notice
of Apparent Low Bidder to the contractor submitting the lowest bid.
1. The Notice of Apparent Low Bidder identifies the contractor name,
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address, and number; the date issued; the project (FM) number; the
county, and district number.
32. The contractor in receipt of the Apparent Low Bid Notification is required to provide
various documents to the Department, including a performance bond, payment
bond, insurance certification listing the Commonwealth as additional insured,
recycled content product provision, and /or a steel origination certification.
a. If the information is not provided to the Department by the time and date
indicated on the Apparent Low Bid Notification, the contractor's bid may be
rejected.
33. Once the required documentation is received and reviewed by the Department, the
Purchasing Agent assigned to the project issues the Notice to Proceed to the
selected contractor.
a. The Notice to Proceed is the actual purchase order for the project.
1. No contractor can be paid for work completed without an approved
purchase order.
b. No work is to begin on the project until the Notice to Proceed has been
approved and issued.
34. A pre- construction conference is to be scheduled after the Notice to Proceed and
prior to the beginning of any actual work.
a. The DFA responsible for the project is required to be present at the pre -
construction meeting.
1. The RFA for the region in which the project is occurring may also be
present at the pre- construction meeting.
b. Attendance by the contractor or authorized representative is mandatory at
the pre- construction conference prior to the beginning of any work.
35. Progress meetings are to be scheduled throughout the progress of the work as
deemed necessary.
a. The DFA responsible for the project is required to attend the progress
meetings.
1. The RFA for the region in which the project is occurring may also be
present at the pre- construction meeting.
b. The DFA or other Department representative may conduct periodic
unscheduled visits to the sight.
c. Contractors who perform poor work, do not provide services on time, or
engage in other unacceptable conduct are to be entered into the
Commonwealth's Contractor Responsibility Program.
36. A pre -final inspection is to be held two weeks prior to the termination date of the
project.
a. Items not completed regarding the project are to be placed on a punch list
and reviewed at that time with the contractor.
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b. The contractor must complete all punch list items before the termination date
of the project.
c. A final inspection is to be performed at the end of the project period.
37. Once the project is complete, the DFA completes a goods receipt through SAP
which is sent to the Purchasing Agent via e -mail transmission.
a. Submission of the goods receipt through the SAP system signifies that the
required work is completed, the final inspection has occurred, and all work
was completed to required standards.
38. The Purchasing Agent subsequently matches the goods receipt to the purchase
order issued and forwards the purchase order and goods receipt to the
Comptrollers office.
a. The Comptroller matches the invoice received from the contractor to the
purchase order and goods receipt.
b. Once the triple match occurs (purchase order, goods receipt, and invoice),
payment due is authorized and released by the Comptroller's office.
39. Emergency work/repairs required for projects under the jurisdiction of the FMD do
not follow procedures established for small, no bid procurement (under $5,000.00)
or formal competitive sealed bids ([$10,000.01] to $100,000.00).
a. Procedure regarding emergency work/repairs includes:
1. Notification of the applicable RFA of the need for emergency
work/repairs.
aa. The applicable DFA is normally the individual who informs the
RFA of any emergency work/repairs required.
2. Obtaining of an Emergency Purchase Order Number from the
Harrisburg Central Office.
3. Completion of an Emergency Procurement Approval request by the
RFA (on behalf of Bureau Director) and forwarding of the request to
the Manager of Operational Services, Bureau of Procurement,
Department of General Services for approval.
4. Receipt of authorization to proceed with the Emergency Purchase
Order.
5. Entering the project into the Penn State Facilities Engineering
Institute database for assignment of a project (FM) number by the
DFA.
6. Generation of a scope of work required for the emergency
work/repairs by the DFA.
7 Solicitation of bids from at least three qualified contractors to perform
the work by the DFA.
aa. Contractors solicited are routinely those on the ITQ in effect at
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that time.
8. Submission of bids by the contractors to the DFA at the DFA's office
and completion of a Summary of Bids for forwarding to the Central
Office.
9. Awarding the project by the Purchasing Agent to either the lowest
qualified bidder or the lowest qualified bidder first available to
complete the work.
10. Issuance of a purchase order (Notice to Proceed) for the project to
the DFA and the RFA.
11. Project completion and contractor payment.
b. There are no dollar value /threshold restrictions associated with emergency
purchase orders.
40. The Department maintains varying numbers of Stockpiles strategically located
throughout the counties which compose the separate districts in the
Commonwealth.
a. Stockpiles routinely have several structures on site which may include an
employee staging area, a materials storage area, parking sheds for vehicles,
a storage area for equipment and tools, etc.
41. On January 25, 2005, the Department issued project packets to various ITQ
qualified vendors which included an invitation to bid regarding Facilities Project
FM3221 and FM3222 under Contract No. 359002 to be located at the Searights
Stockpile in Fayette County.
a. The anticipated scope as documented on each invitation to bid called for the
construction of one 36'x45' Husky to be reimbursed by the Pennsylvania
Turnpike Commission.
1. The existing Department stockpile at Searights, PA was abandoned
by the Department as a result of an agreement between the
Pennsylvania Turnpike Commission and the Department.
aa. The Department agreed to relocate the Stockpile in order for
the Pennsylvania Turnpike Commission to extend a section of
Toll Route 43 (the Mon - Fayette Expressway).
bb. The Pennsylvania Turnpike Commission agreed to assist in
financing the relocation of the Stockpile.
b. The worksite for the projects was documented as, "Stockpile 22 District 12
Fayette County."
1. Stockpile 22 is located in Searights, PA.
c. The pre -bid meetings for the projects were initially scheduled simultaneously
for February 28, 2005, at 10:00 a.m. at Stockpile 22.
1. Attendance at the pre -bid meeting was not mandatory.
2. An Addendum to the bid package dated January 28, 2005, amended
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the pre -bid meeting for FM3221 and FM3222 to March 1, 2005, at
9:00 a.m. and 10:00 a.m. respectively.
d. James Kirkpatrick, TPA assigned to Districts 11 and 12, was documented as
the Department contact on each invitation to bid.
42. Clark Contractors, Inc. (hereafter Clark Contractors) was one of various vendors to
receive project information related to FM3221 and FM3222.
a. Clark Contractors is a general construction company located in Bedford, PA.
b. Clark Contractors was approved to bid on facilities design, construction,
renovation and /or inspection work for the Department under Contract No.
359002.
1. Clark Contractors was an approved ITQ vendor.
43. Project information /specifications provided in the bid package specifically
documented the construction of salt buildings (Huskies) for the Searights Stockpile,
Fayette County, PA under FM3221 and FM3222.
a. The projects were to be constructed between July 1, 2005, and December 1,
2005, depending on the completion of site excavation.
44. Both Bolinger and Kirkpatrick were present at the pre -bid meeting held on March 1,
2005.
a. FM3221 and FM3222 as well as additional FM Numbers /projects to be
associated with the relocated Stockpile 22 were scheduled throughout the
day on March 1, 2005.
b. The pre -bid meeting verified that the construction was to occur at the new
location determined for Stockpile 22.
c. Site preparation for the new location had not yet been completed at the time
of the pre -bid meeting.
45. Purchase orders for various projects at the new Stockpile 22 location were
approved between April 4, 2005, and April 12, 2005, although the site for the
projects had not yet been completed.
a. Purchase Order 4500215054 dated April 4, 2005, in association with
FM3221 was approved and awarded to Clark Contractors in the amount of
$30,555.00.
1. Clark Contractors' bid of $30,555.00, submitted via facsimile
transmission to the FMD on March 17, 2005, was the lowest of four
bids received.
b. Purchase Order 4500217069 dated April 12, 2005, in association with
FM3222 was approved and awarded to Clark Contractors in the amount of
$29,200.00.
1. Clark Contractors' bid of $29,200.00, submitted via facsimile
transmission to the FMD on March 17, 2005, was the lowest of three
bids received.
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46. Project information provided to contractors in the bid packages for FM3221 and
FM3222 specified that the Department was releasing the projects as "Design Build"
projects.
a. Design build projects are those in which the Department provides the
contractor with project specifications and the contractor is responsible for
designing the project.
b. The ultimate design is submitted to the DFA for approval upon completion.
47. Although change orders are addressed in the ITQ, specifically documented in the
explanation of "Design Build" as included in the bid packages issued for FM3221
and FM3222 is, "There will be no change orders on this project."
a. Change orders are addressed in the ITQ for Contract No. 359002 under
Exhibit C, Section 45, Advice of Change:
"If, due to unforeseen circumstances, work is uncovered which is necessary
for completion of the project, the Contractor shall submit to PennDOT, in
writing, a letter detailing the additional work. The work defined in the letter
must be within the original scope of work stated in the project specifications.
Upon acceptance, PennDOT will issue an Advice of Change to the Order for
the additional work. The Contractor shall not proceed with the additional
work until the Advice of Change is executed by all parties."
48. Due to the fact that the new site for Stockpile 22 was not ready for construction,
Bolinger approached Ronald Inks, Assistant County Manager, District 12 -1, Fayette
County, sometime after April 5, 2005, and questioned Inks if a salt storage building
could be utilized at Stockpile 21, District 12, Fayette County, Dinnerbell, PA.
a. Inks has supervisory responsibility over Stockpile 21 in his position as
Assistant County Manager.
1. Stockpile 21 is located in Farmington, PA.
b. Bolinger also discussed additional modifications to Stockpile 21 with Inks.
1. Modifications to existing structures on site were discussed due to the
fact that two Huskies would not fit in the available space in the
stockpile compound.
c. Inks' approval was not necessary to change the scope of work from Stockpile
22 to Stockpile 21.
49. Bolinger then contacted Clark Contractors representative /estimator Clair Corle via
telephone regarding FM3221 and FM3222 after verifying that a new salt storage
building and other modifications could be utilized at the Dinnerbell Stockpile 21.
a. Bolinger informed Corle that the new Searights site was not ready.
b. Bolinger questioned Corle if he had any objection to constructing one salt
storage building and completing other renovations at the Dinnerbell
Stockpile instead.
1. The scope of FM3221 did not change although the documented
location did.
Bolinger, 08 -020
Page 16
2. Both the documented scope and location of FM3222 changed.
c. Corle did not object to the change in location for FM3221 or the change in
scope and location for FM3222.
d. Although Corle, on behalf of Clark, agreed to changes as advocated by
Bolinger, the bid packages for "Design Build" did not permit change orders
for the project.
50. Bolinger confirmed the changes in scope to FM3222 via fax issued to Corle at Clark
Contractors' office in Bedford, PA sometime after April 12, 2005.
a. The original fax sent to /received by Corle could not be located.
b. The fax sent by Bolinger to Corle changed the scope of work to include
electrical service /lighting to an existing high arch salt storage building,
lighting and installation of a truck plow pad in an existing three bay salt
storage building (to be converted to truck parking), and installation of truck
heaters. Bolinger's fax also required Clark to provide an air compressor,
pressure washer, and concrete saw.
1. The fax generated by Bolinger specified the make and model of the
air compressor, pressure washer, and concrete saw to be supplied.
c. An air compressor, pressure washer, and concrete saw were not required as
part of this project.
51. Bolinger provided the changes in FM3222 to Corle and requested that Corle
determine if the new scope could be completed for the same amount ($29,200.00)
originally approved for FM3222.
a. Bolinger and Corle spoke several times regarding the changes as initial
estimates generated were in excess of the original amount approved for
FM3222.
1. Changes made included Bolinger changing the specific
brands /models of equipment requested.
2. The brand names for the air compressor, pressure washer, and
concrete saw initially specified by Bolinger were more expensive than
the brands eventually agreed upon between Bolinger and Clark.
3. By Bolinger agreeing to accept less expensive brand names of
equipment, Clark was able to complete the project at the initial
$29,200.00 quote.
52. Although change orders were not authorized regarding design build projects under
Contract No. 359002, RFAs and DFAs had the authority to approve slight changes
in projects as long as the changes were in the same basic scope of the project and
no cost increase resulted from the change, but the project location could not be
changed.
a. The ITQ requires that any change in a project location, as directed by
Bolinger, required that a project be cancelled and re -bid.
b. The project was authorized by Bolinger to proceed even though PennDOT
policies required a re -bid due to the location change from Stockpile 22 to
Bolinger, 08 -020
Page 17
Stockpile 21.
c. By authorizing the project to continue without re -bid, Bolinger was able to
keep the tools /equipment hidden in the pricing for the project.
53. Clark Contractors representative Dick Clark purchased the tools (air compressor,
pressure washer, concrete saw) requested by Bolinger in association with the
revised scope of work under FM3222 at an approximate cost of $2,658.47.
a. Clark purchased one 13 Horsepower Honda Concrete Saw with 18" guard,
Serial Number 01280265 from Pitt Industrial Diamond Products on October
20, 2005, in the amount of $2,161.34.
1. The $2,161.34 figure represents the cost of the saw and six percent
sales tax.
b. Clark purchased one Kobalt 22- gallon Digital Air Compressor Model No.
215914, Serial Number D19811299 from Lowe's Home Improvement
Warehouse.
1. The approximate value of the air compressor was $295.74 with sales
tax.
aa. Clark Contractors could not locate any receipt or payment
documentation for the purchase.
bb. The value of the air compressor was obtained from
jacksonville.travidia.com.
c. Clark purchased one Karcher Pressure Washer, Model No. K3.86, Serial
Number 387746.
1. The approximate value of the pressure washer was $201.39 with
sales tax.
aa. Clark Contractors could not locate any receipt or payment
documentation for the purchase.
bb. The value of the pressure washer was obtained from
deerso.com.
54. Tools purchased by Clark/Clark Contractors were delivered /transported to Clark
Contractors' main office in Bedford, PA.
a. Equipment purchased by Clark/Clark Contractors was purchased in the
same immediate time frame of October 20, 2005, to early November 2005.
55. Corle contacted Bolinger via telephone after obtaining the required equipment and
completing work at the Dinnerbell Stockpile.
56. Bolinger declined Corle's offer to deliver the equipment to the Dinnerbell Site and
advised that he would pick -up the items at Clark's facility.
a. Bolinger and Kirkpatrick drove to Clark Construction in Bedford, PA on a
Friday between October and November 2005 and took possession of the
equipment from Clark Contractors.
Bolinger, 08 -020
Page 18
b. Bolinger and Kirkpatrick drove to Clark Contractors' office in Bolinger's
Commonwealth provided vehicle.
1. Bolinger was assigned a Chevrolet pick -up truck (Equipment No. 094-
3030) by the Commonwealth in late October 2005 in his position as
an RFA.
57. Bolinger and Kirkpatrick subsequently returned to the District 12 -0 office location
with the equipment.
a. Although Bolinger and Kirkpatrick returned to their field office with the
equipment, the tools were not provided to any Department personnel for
custody or inventory purposes.
1. Bolinger did not specifically notify or inform anyone at Engineering
District 12 -0 or at Maintenance District 12 -1 of the equipment which
had been obtained.
b. No records could be located at Engineering District 12 -0 or at Maintenance
District 12 -1 documenting the delivery or receipt of the equipment by anyone
at PennDOT.
c. The equipment was not unloaded from Bolinger's vehicle.
58. Clark Contractors submitted an invoice dated October 25, 2005, to the Department
Comptroller's Office for payment in the amount of $30,555.00 for services
performed in association with FM3221.
a. The invoice referenced PO Number 4500215054.
b. The invoice description referenced "PO #: 4500215054 Project FM3221
36'x45' Storage Building."
59. Clark Contractors submitted an additional invoice dated November 9, 2005, to the
Department Comptroller's Office for payment in the amount of $29,200.00 for
services performed in association with FM3222.
a. The invoice referenced PO Number 4500217069.
b. The invoice description referenced "PO #: 4500217069 Project FM3222
36'x45' Storage Bldg."
60. The invoice submitted by Clark Contractors for payment was not reflective of the
approved scope of work for FM3222 or the actual services performed in relation to
payment requested.
a. PO Number 4500217069/FM3222 documented approval for the construction
of a 36'x45' salt storage building at the Searights Stockpile.
b. Actual work performed included addition of electrical service and lighting to
existing structures, installation of a truck plow pad, and installation of truck
heaters at the Dinnerbell Stockpile location along with the purchase of
equipment ultimately provided to Bolinger by Clark Contractors.
1. The equipment was not necessary for any aspect of the project
completed by Clark Contractors.
Bolinger, 08 -020
Page 19
2. Clark provided the equipment based on the instructions of Bolinger.
61. Clark Contractors submitted the inaccurate invoice to the Department Comptroller's
Office at Bolinger's direction referencing completion of the original scope of work at
the original approved location and not actual services performed which included
providing tools to Bolinger.
a. Clark Contractors submitted the inaccurate invoice under the original scope
of work associated with the approved Purchase Order in order to receive
payment for services performed.
b. Payment to contractors cannot occur without an approved Purchase Order.
1. No Purchase Order was approved for repairs, upgrades, additions to
the Dinnerbell Stockpile or the equipment directed to be provided by
Bolinger.
c. The invoices submitted by Clark Contractors did not identify the pressure
washer, concrete saw, and air compressor received by Bolinger.
62. Clark Contractors received payment for services under FM3221 and FM3222 in the
original bid amounts of $30,555.00 and $29,200.00 respectively via Commonwealth
check number 09246736, dated December 16, 2005, in the amount of $59,755.00.
a. Payment received by Clark Contracting included payment for equipment
which Bolinger and Kirkpatrick took possession of from Clark Contracting.
b. Clark Contractors deposited Commonwealth check number 09246736 into its
business account at First American Bank on December 19, 2005.
63. The Department requires an annual inventory to be completed regarding equipment
and tools located at each Engineering and Maintenance District within the
Commonwealth.
a. The Department generally defines equipment as items which are operated to
complete a task and can move under their own power.
b. The Department generally defines tools as items which are used in order to
complete a task (i.e. hand tools, jacks, etc.).
c. The District Equipment Manager or his /her designee is responsible for
completing the inventory of the Engineering District Office while the County
Equipment Manager or his /her designee is responsible for completing the
inventory of County Maintenance Districts.
d. Inventories must be completed by May 15 annually.
64. Department equipment and tools are assigned specific numbers for identification
purposes and to ensure that equipment /tools purchased are actually on -site at their
assigned location.
a. Items identified as equipment bear a seven digit number stenciled on the
equipment in multiple locations.
1. Items identified as equipment originate from the Department in
Harrisburg and are provided with the equipment number already in
place.
Bolinger, 08 -020
Page 20
b. Items identified as tools bear a four digit number which is engraved, written
in permanent marker, or noted on a brass tag which is affixed to the tool.
1. Tools purchased at the local level are marked with a sequential tool
number upon arrival.
65. Inventories conducted at Engineering Districts and County Maintenance Districts
are completed via the recording of equipment and tools by their applicable
equipment /tool number.
a. Any items discovered during the inventory process with no equipment /tool
number are to be noted on the inventory report and researched.
66. Inventories for Engineering District 12 -0 and Maintenance Districts 12 -1, 12 -2, 12 -4,
and 12 -5 were completed by Department personnel for 2005 -2006, 2006 -2007, and
2007 -2008.
a. None of the inventories conducted documented the presence of the concrete
saw, air compressor, or pressure washer obtained by Bolinger and
Kirkpatrick from Clark Contractors.
1. The inventories documented no tool numbers assigned to any of the
items received by Bolinger and Kirkpatrick.
2. The inventories documented no record of any concrete saw, air
compressor, or pressure washer discovered without a tool number
during the inventories.
67. Inventories conducted revealed the following tools of a similar nature present in
District 12 Maintenance districts as early as late winter /early spring 2005.
a. District 12 -1, Fayette County:
Item Make Tool No. Year
Purchased
Champion 0446/0447 1987
15 HP Air
Compressor (2)
Pressure Washer
Pressure Washer
Concrete Saw
b. District 12 -2,
Item
Air Compressor (2)
Air Compressor
Compressor, Shop
15 HP
Concrete Saw,
Hand -held
1.
NAPA
CAT
MK
Diamond
Greene County:
Ma
Emglo
Hatfield -
Campbell
Ingersol
Rand
Stihl
0133 1998
0205 2002
0761 2006
o.
0040/0288
0308
0588/0599
$5,000.00
$1,498.00
$1,850.00
$1,340.00
Year Cost
Purchased
Unknown
Unknown
Unknown
Unknown
0389 Unknown Unknown
Unknown Unknown
Tool Number 0040 was labeled as an Emglo compressor on the
Bolinger, 08 -020
Page 21
inventory completed in 2005 and as a Champion compressor on the
inventory completed in 2006.
c. District 12 -4, Washington County:
Item Make Tool No. Year
Purchased
Pressure Washer Hurrican 0148 2000
Pressure Washer (3) Blador 0493/0489 1996
0488
Pressure Washer -Hot Alkota 0502 1989
Water
Pressure Washer Blast Off 0528 2002
High Pressure Hots Model 0226 2002
Washer 4400
Air Compressor, Charge Air 0578 1996
6HP60 Gal Power
Air Compressor, Cambell 0433/0437 1996
6HP60 Gal (5) Hausfield 0436/0435
0434
Emglo 0088 1964
Senco 0176 2001
Air Compressor
Portable Air
Compressor
d. District 12 -5, Westmoreland County:
Item
Compressor, 10 Ton
Air Compressor
Compressor
Air Compressor
Air Compressor
Pressure Washer
Item
Ma
Concrete Saws (4) Stihl
ke
Tool No.
0147
0237
0273
0926
0968
0949
Ingersol
Rand
Emglo-
Lincoln
Emglot
Gardner
Denver
Emglo
Troy Buict
Make Equipment
No.
090 -4759
091 -4759
122 -4759
146 -4759
Cost
$900.00
$900.00
$4,075.00
$1,500.00
$125.00
$480.00
$480.00
$433.00
$229.00
Year Cost
Purchased
1977 $1,700.00
1980 $26.00
1981 $1,900.00
2003 $2,150.00
2005 $2,000.00
2004 $417.00
68. Inventories conducted revealed the following equipment of a similar nature present
at the Engineering District 12 -0 main office as early as late winter /early spring 2006.
a. Engineering District 12 -0, Uniontown, PA, Fayette County
Model Year Acceptance
Date
1990 08/10/90
1990 08/10/90
1997 08/11/97
2001 07/20/01
Concrete Saw Blazer 195 -4968 1999 04/29/1999
Diamond
69. The Department has the ability to borrow tools from surrounding districts /counties
or purchase tools as needed in order to complete assigned tasks.
Bolinger, 08 -020
Page 22
a. The Department follows established procedures in relation to the purchase
of equipment.
1. The Department does not solicit the FMD for provision of tools.
2. The FMD has no authority or responsibility to purchase or otherwise
obtain tools for the Department.
70. No evidence exists that the concrete saw, air compressor, or pressure washer that
Bolinger directed Clark to provide to him were ever utilized for any PennDOT
purpose.
71. At the time of his return of the equipment, Bolinger's conduct was being reviewed by
PennDOT officials.
1. Complaints had been made by Clark to PennDOT regarding both
Bolinger and his subordinate James Kirkpatrick.
2. Bolinger was suspended by PennDOT in April 25, 2007 *.
*[Cf., compare Fact Finding 11 d(1) as to the date of the suspension.]
b. Bolinger questioned Donald Lowry, District 12 -0 Building Maintenance
Foreman, if the tools could be stored in the Lawn Maintenance Building.
1. The Lawn Maintenance Building is utilized to store large pieces of
district lawn maintenance equipment, tools, and general building
supplies.
aa. The County occasionally stores items in the Lawn
Maintenance Building if necessary.
2. Lawn Maintenance Building keys were maintained by Lowry, Ronald
Jones - Maintenance Repairman 11, and an intern.
c. The appearance of the tools indicated that they had been used prior to
Bolinger delivering the items to PennDOT.
d. Lowry did not assist in removing the items from the truck for storage in the
Lawn Maintenance Building.
72. The tools were present in the Lawn Maintenance Building at the time of Bolinger's
suspension from the Department on April 25, 2007.
a. The tools were subsequently moved to the Dead Storage building located at
the Engineering District 11- 0/12 -0 compound.
b. The tools have remained in the Dead Storage building since that time.
c. The tools have not been used for any PennDOT purchase.
73. The tools /equipment were not delivered to PennDOT by Bolinger until after
complaints were received by PennDOT of Bolinger's conduct.
74. Bolinger solicited the purchase of one concrete saw valued at $2,161.34.
Bolinger, 08 -020
Page 23
a. Bolinger solicited the purchase of one air compressor valued at
approximately $295.74.
b. Bolinger solicited the purchase of one pressure washer valued at
approximately $201.39.
THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT BOLINGER UTILIZED
HIS POSITION TO OBTAIN CONSTRUCTION MATERIALS FOR PERSONAL USE
FROM A DEPARTMENT ITQ VENDOR WHICH THE DEPARTMENT WAS
SUBSEQUENTLY CHARGED FOR IN ASSOCIATION WITH EMERGENCY REPAIRS
MADE TO A DEPARTMENT STOCKPILE.
75. The Department maintains varying numbers of Stockpiles strategically located
throughout the counties which compose the separate districts in the
Commonwealth.
76. The Department maintains Stockpile No. 9 at 9546 Glade Pike, Berlin, PA,
Somerset County, in Engineering District No. 9, Maintenance District 9 -7.
a. Stockpile No. 9, commonly referred to as the Roxbury Stockpile, is located
within the region supervised by Bolinger.
1. The Roxbury Stockpile is composed of various buildings /structures
including a salt storage building for winter road maintenance.
77. On March 20, 2007, Department employee Dale Yommer was involved in an
accident involving Department Equipment No. 716 -8071 and the salt storage
building located at the Roxbury Stockpile.
a. Equipment No. 716 -8071 is a Department road maintenance vehicle.
b. The accident caused structural damage to the front of the salt storage
building.
78. Rice, DFA for District 9, received notification of the accident from Joseph Kelemen,
County Manager, Maintenance District 9 -7 via e-mail transmission.
a. Rice physically inspected the damage to the salt storage building on March
20, 2007, or March 21, 2007.
1. Rice contacted Bolinger via telephone regarding the accident after
inspecting the damage.
79. Bolinger generated an Emergency Procurement Approval Request, consistent with
Department policy for the required repairs after receiving notification of the accident
and discussing the accident with Rice.
a. The Emergency Procurement Approval Request was dated March 21, 2007.
b. The Emergency Procurement Approval Request was addressed to Tom
DeMartile, Director - Commodity Management- Bureau of Procurement,
Department of General Services; from Diane Chamberlin, Acting Director -
Bureau of Office Services.
1. Bolinger forwarded the request on behalf of Chamberlin.
80. The Emergency Procurement Approval Request documented the basis for the
Bolinger, 08 -020
Page 24
emergency procurement as:
a. Structural damage to salt building which required repair in order to allow
employees access for winter operations.
b. Potential for collapse.
81. The Emergency Procurement Approval Request documented bids to be solicited
from at least three qualified vendors to be awarded to a qualified and responsive
vendor capable of performing the services.
a. Bolinger estimated the dollar value of the procurement at $15,000.00.
82. Bolinger forwarded the approval request via e-mail transmission to Robert
Kleimenhagen, Central RFA, which was subsequently forwarded to Jack
Christenson, Division Chief of the FMD and finally to DiMartile for authorization to
proceed.
a. The approval request was assigned EPS #356E22.
83. DiMartile responded to Christenson via e-mail transmission at 4:09 p.m. on March
21, 2007, authorizing the Emergency Procurement order as requested.
a. Christenson subsequently sent Bolinger an e-mail transmission on March 22,
2007, at 7:17 a.m. authorizing Bolinger to proceed with the repairs.
84. Bolinger sent an e-mail transmission to Rice requesting an FM Number for the
repairs after receiving authorization from Christenson to move forward.
a. Rice entered the project into the Penn State Facilities Engineering Institute
database.
b. The project was assigned FM Number 4938.
85. Bolinger compiled a scope of work for the required repairs to be sent to at least
three bidders after the FM Number had been obtained.
a. The scope of work noted the following repair services to be performed:
1. Repair of damaged trusses;
2. Replacement of structural gable trusses;
3. Replacement of roofing system where damaged;
4. Replacement of shifted posts restoring concrete footings;
5. Installation of T1 -11 and painting of gable area;
6. Installation of bracing; and
7. Removal of all debris.
86. Bolinger supplied the scope of work to E &A Contracting, Inc. (hereafter E &A),
Swede Construction Corporation, and Vince Building Company, Inc. for bidding
consideration.
Bolinger, 08 -020
Page 25
a. E &A's office is located in Somerset, PA.
b. Swede Construction Corporation is located in Elizabeth, PA.
c. Vince Building Company, Inc. is located in Greensburg, PA.
87. E &A submitted an initial bid dated March 22, 2007, in the amount of $3,710.00 for
repair of the salt storage building at the Roxbury Stockpile.
a. E &A's bid was generated by Jeff Weicht, President of E &A/Vice- president of
Knieriem Construction.
1. E &A and Knieriem are both owned by Wayne Knieriem.
88. Although addressed to Rice at Engineering District 9 -0, E &A's bid was ultimately
received and reviewed by Bolinger.
a. Rice did not review any bids submitted regarding the repairs needed.
89. E &A's bid was the only bid received by the Department regarding the repair project.
90. Bolinger contacted Weicht via facsimile transmission after reviewing E &A's bid for
purposes of altering the bid amount.
a. Bolinger faxed correspondence to Weicht advising Weicht to raise the
project bid amount to $9,061.00 which documented the following:
"Jeff
If you agree to this please send me the invoice
Fm4938
Eps Roxbury
Total= $9,061.00
$1,300 wes
Roxbury $3,710
$450 bridgeville
$1,101.00 at greensburg
$2,500 for materials delivered to uniontown warehouse"
(2)- delivered to uniontown warehouse
ReliaBilt
6' ReliaBilt French Patio door Steel Blinds Between the Glass Tilt and Raise
Insulated Glass White In -Swing Brick Mold Right Hand Screen Not Included
Item #: 156109 Model SBHBBGTRIS
$498.00 EACH= $1,000
50 $8 =$400 (2x6x12 Top Choice Treated)
20 $11 =$200 (4x4x10 #2 .40 Treated)
50 @$5 =$250 (2x4x10 Top Choice Treated)"
b. Written on the document by Weicht was "$65.00" delivery fee and a total
price of $2,047.20 (accounting for material costs, sales tax, and delivery).
Bolinger, 08 -020
Page 26
1. The actual cost of the materials and delivery fee totaled $2,043.05.
c. Also handwritten by Weicht on the document was 724 - 430 -1800.
1. 724 - 430 -1800 is the telephone number associated with Lowe's Home
Improvement Warehouse (hereafter Lowes) located in Uniontown,
PA.
d. The fax was undated, but occurred between March 22, 2007, and April 9,
2007.
91. Bolinger directed Weicht to increase the bid amount to $9,061.00 in order to
compensate E & A for services previously performed, but beyond the scope of the
contract.
a. E &A had previously performed services under FM Numbers FM4102,
FM4830 at Bolinger's and /or Kirkpatrick's request which were beyond the
scope of services for which originally contracted.
b. Bolinger and /or Kirkpatrick informed Weicht at the time of the requests that
E &A would be paid for the services at a later date.
1. No payment can be issued to contractors for services completed
without an approved Purchase Order.
c. Bolinger utilized the opportunity to contract with E &A for the salt storage
building repairs at the Roxbury to pay E &A for work completed for which no
Purchase Order existed and to obtain materials not related to any PennDOT
project.
92. The facsimile sheet from Bolinger to Weicht documented payments due to E &A for
work performed and listed materials requested by Bolinger region [sic] for which no
Purchase Order had been approved.
a. Payment for "$1,300 wes" reflected extra payment due E &A for electrical
work completed by E &A's electrical subcontractor in relation to FM4102
which was beyond E &A's contracted scope.
1. E &A was issued full payment from the Commonwealth in the amount
of $81,510.00 for FM4102 as bid and authorized via Purchase Order
4500322454 via check numbers 00538613, 08508856, 00222309,
and 53630198.
aa. Payments for multiple FM Numbers are included in the checks
noted.
b. Payment for "Roxbury $3,710" reflected payment due for repairs required for
the salt storage building at the Roxbury.
c. Payment for "Bridgeville $450" reflected extra payment due E &A for services
completed which were beyond the scope of those originally contracted for
relating to FM4830.
1. E &A was issued full payment from the Commonwealth in the amount
of $1,170.00 for FM4830 as bid and authorized via Purchase Order
4500400698 via check number 08572223.
Bolinger, 08 -020
Page 27
aa. Payment for FM4831 is also included in the check noted.
d. Payment for "$1,101.00 at greensburg" reflected payment due E &A for which
no Purchase Order or FM Number had been approved.
e. Payment for "$2,500 for materials delivered to uniontown warehouse"
reflected payment for construction materials for which no Purchase Order,
FM Number, or project had been approved.
93. Weicht contacted Lowe's (telephone no. 724 - 430 -1800) to verify the prices of the
building materials requested by Bolinger and subsequently contacted Bolinger via
telephone.
a. Weicht questioned Bolinger if including the amounts owed for other services
was the method by which Bolinger planned to issue payment to E &A.
b. Bolinger verified that E &A would receive payment for the Roxbury repairs as
well as other services performed via payment for FM4938 in the amount of
$9,061.00.
c. None of the materials listed on Bolinger's e-mail (Reliabilt Patio Door and
treated lumber) were needed for the Roxbury repairs.
94. Bolinger subsequently completed a Summary of Bids report noting bids received for
FM Number 4938 and forwarded the information to the FMD Central office in
Harrisburg for processing.
a. E &A is documented as submitting a bid in the amount of $9,061.00.
1. Bolinger did not inform the FMD Central Office that E &A's bid amount
was compiled by him or that the bid included amounts for materials
completely unrelated to the emergency project.
b. Bolinger's Summary of Bids noted Swede Construction Corporation as
submitting a bid in the amount of $10,750.00.
1. Swede Construction Corporation has no record of receiving the scope
of work on which to bid or any bid submitted for consideration.
c. Vince Building Company is documented as having not responded to the
scope of work.
1. Vince Building Construction has no record of receiving the scope of
work on which to bid.
95. The bid opening time and date is documented as March 21, 2007, at 0:00 hours
and bears Rice's name typewritten in the "Witness to Bid Opening" section on the
Summary of Bids.
a. Rice's name was typewritten on the form by Bolinger.
b. Rice did not witness the opening of or review any bids received.
c. Bolinger falsely entered Rice's name as a witness to the bid opening.
96. E &A was awarded the contract for FM4938 for emergency repairs to the salt shed at
the Roxbury.
Bolinger, 08 -020
Page 28
a. E &A completed the required repairs on or about April 9, 2007.
97. On April 9, 2007, E &A provided Invoice Number 1044 in the amount of $9,061.00 to
Bolinger at Engineering District 11- 0/12 -0 for payment.
a. The invoice description notes only "EPS Roxbury."
1. No information is present documenting portions of the $9,061.00
billed being applied to services performed unrelated to FM4938.
aa. Included in the price documented on the invoice were building
supplies in the amount of $2,043.05 for which no project was
authorized.
bb. Although the building supplies totaled only $2,043.05, Bolinger
arranged payment to E &A for the materials in the amount of
$2,500.00.
2. E &A submitted the invoice in the amount of $9,061.00 per Bolinger's
direction even though the actual cost related to the repairs to the
Roxbury site was $3,710.00.
98. Bolinger sent the FM4938 project file, including the invoice received, to FMD
purchasing agents in the Central Office via facsimile transmission dated April 9,
2007, for processing for payments to E & A.
a. Bolinger indicated on the cover letter that Rice needed a miscellaneous
Purchase Order for the project.
1. A Purchase Order was needed in order to issue payment to E &A.
99. On April 13, 2007, the Department issued Purchase Order No. 4300003966 in the
amount of $9,061.00 to E &A.
a. The Purchase Order effective date and issue date are both documented as
April 13, 2007.
b. The service description on the Purchase Order notes, "EMERGENCY Repair
To Building."
1. Payment for any prior services and /or services outside the scope of
the emergency repairs was not authorized on the Purchase Order.
c. The payment included the materials totaling $2,043.05 which were unrelated
to the project.
100. On April 10, 2007, Weicht ordered /purchased building materials solicited by
Bolinger in the amount of $2,043.05 documented on Lowe's sales receipt number
S0187TM1 as shown below:
Item Description
6' RB STL FCH BBG TR I/S RH
2x6x12 ACQ Top Choice Treated
2x4x10 ACQ Top Choice Treated
4x4x10 #2 .40 ACQ Treated
Quantit
2
50
50
20
Price Per
Unit)
$498.00
7.97
4.97
10.97
Total Price
$996.00
398.50
248.50
219.40
Bolinger, 08 -020
Page 29
Item Description Quantity Price Per Total Price
Unit)
Delivery fee 1 65.00 65.00
Tax - - 115.65
Total $2,043.05
a. The sales receipt documents the purchase of two French Doors, fifty 2x6x12
pieces of lumber, fifty 2x4x10 pieces of lumber, and twenty 4x4x10 #2.40
pieces of lumber as well as a delivery fee.
1. Weicht had never purchased materials for delivery to any Engineering
District office in the past.
aa. Weicht routinely has required materials [to be] delivered
directly to contracted project sites.
b. The invoice associated with the order /purchase was Invoice Number 73668.
c. The purchase of the building materials occurred after the repairs to the
Roxbury were completed.
101. Building materials ordered /purchased by Weicht at Bolinger's direction were
delivered to the Engineering District 11- 0/12 -0 office location at 825 North Gallatin
Avenue, Uniontown, PA 15401 on April 16, 2007.
a. The delivery was made by Lowe's representatives.
b. The delivery occurred at approximately 10:00 a.m.
102. Delivery instructions on the delivery invoice document the following, "PA. DEPT OF
TRANSPORTATION - ATTENTION -CRAIG BOLINGER."
a. The individual signing for the delivery could not be determined.
1. The signature on the delivery invoice is illegible.
103. The Lowe's truck which delivered the building materials to the Engineering District
11- 0/12 -0 compound was unloaded by Department employees, George Riley,
Lowry, and Jones.
a. Riley was employed as an Operator A for Fayette County Maintenance
District 12 -1.
1. Riley is now retired from the Department.
104. Once unloaded, the building materials were placed into a storage building identified
via placard as "12 -0 DEAD STORAGE BLDG #1200004."
a. The structure is located immediately next to the FMD office located at the
Engineering District 11- 0/12 -0 compound.
b. The structure was commonly known as "Craig's warehouse."
c. Keys to the Dead Storage building were maintained by Bolinger and Lowry.
105. E &A received payment from the Commonwealth of Pennsylvania for Invoice
Number 1044 dated April 9, 2007, issued for FM4938, on July 5, 2007.
Bolinger, 08 -020
Page 30
a. Payment from the Commonwealth to E &A occurred via direct deposit into
E &A's PNC Bank business account (account number )0X -)000(- 2729).
b. Department records document $3,710.00 of the payment charged to District
9 Somerset County funds and $5,351.00 of the payment charged to FMD
funds.
1. District 9 Somerset County was responsible only for the cost of the
actual repairs to the Roxbury salt storage building.
aa. Excess payment to E &A for services performed outside the
scope of contracts awarded or for services for which no
Purchase Order was approved originated from FMD funds.
106. At the time the materials also were delivered by Lowe's on April 16, 2007,
PennDOT had received complaints of Bolinger's conduct which culminated in his
suspension on April 25, 2007.
a. Bolinger was unable to take possession of the materials.
107. The building materials stored in the Dead Storage building were not purchased in
association with any FMD project scheduled to occur in the Commonwealth.
a. No Department employees or contractors have contacted representatives of
the Southern FMD Region in relation to needing the items for any scheduled
project.
b. The french doors are not of the variety utilized by the FMD in
construction /renovation projects.
1. Commercial Building Codes require panic hardware on all exterior
door(s) in case of emergency.
aa. The french doors requested by Bolinger do not have panic
hardware.
108. Bolinger owns property located at [residence address redacted].
a. Bolinger's residence and a stand alone garage /storage building are present
on the property among other items.
b. Bolinger's residence has an attached wooden porch leading to the front
entryway of his home as well as a rear patio.
c. The existing porch and patio are constructed of the same type of building
materials solicited from and subsequently supplied by E &A.
109. Bolinger realized a private pecuniary benefit of approximately $2,043.05 when he
solicited E &A to purchase building materials outside the scope of FM4938 via his
authority as an RFA, to have the building materials delivered to the Engineering
District 11- 0/12 -0 compound, and to have the building materials stored in the Dead
Storage Building when the materials were ultimately paid for by the Department via
payment to E &A for FM4938.
a. Bolinger solicited the purchase and delivery of lumber totaling approximately
$918.39.
Bolinger, 08 -020
Page 31
b. Bolinger solicited the purchase of french doors totaling approximately
$1,055.76.
c. Bolinger's instruction to have the materials delivered to the Engineering
District 11- 0/12 -0 compound resulted in a $68.09 delivery charge (including
sales tax).
110. On April 25, 2007, Department representatives Rina Cutler, Deputy Secretary for
Administration, Chamberlin, and Christenson met with Clark Contractors
representatives Cliff Clark, Vice - President; Clair Corle, Project Manager; and
Stacey Hall, Office Manager.
a. Clark Contractors representatives alleged that Bolinger and Kirkpatrick
utilized threats and intimidation tactics to compel Clark Contractors to
provide items for department contracts which were beyond the scope of the
actual contracts.
111. As a result of the April 25, 2007, meeting, Bolinger was suspended from his
employment with the Department.
a. Bolinger [was] suspended from his employment with the Department
effective 12:00 p.m.
1. Bolinger received written notification of his suspension via
correspondence dated May 1, 2007.
aa. The correspondence referenced the reason for the suspension
as harassment and contract improprieties.
112. On May 1, 2007, the Department requested that the Pennsylvania Office of the
Inspector General (hereafter OIG) investigate the conduct of Bolinger and
Kirkpatrick while responsible for supervising construction projects involving Clark
Contractors.
a. The investigation began on or about May 1, 2007, and concluded on
November 15, 2007, through the issuance of an Investigative Report.
113. Based on the investigation conducted, the Investigative Report submitted by the
OIG documented the following findings:
Kirkpatrick and Bolinger required Clark Contractors to furnish refrigerators
and microwave ovens at four construction projects without reimbursement;
Bolinger's and Kirkpatrick's contention that they required contractors to
furnish refrigerators and microwave ovens pursuant to Department contract
specifications is contrary to Department practices;
c. Bolinger and Kirkpatrick acquired a concrete saw, pressure washer, and an
air compressor from Clark Contractors; and
d. Department interviews and records do not substantiate Bolinger's and
Kirkpatrick's statements that the purchase, acquisition, and storage of the
concrete saw, pressure washer, and air compressor were in accordance with
Department policies.
a.
b.
114. On July 17, 2007, the OIG initiated an investigation regarding the conduct of
Bolinger, 08 -020
Page 32
Bolinger and Kirkpatrick while responsible for supervising construction projects
involving E &A.
a. The investigation began on July 17, 2007, and concluded on March 25,
2008, through the issuance of an Investigative Report.
115. Based on the investigation conducted, the Investigative Report submitted by the
OIG documented the following findings, among others:
a. E &A claimed that they performed work outside the scope of their contracts
pursuant to Bolinger's and Kirkpatrick's instructions;
b. E &A claimed that they purchased treated lumber and french doors pursuant
to Bolinger's instructions although Department staff stated that they could
not identify a Department project requiring the items;
c. E &A claimed that Bolinger instructed E &A to increase its $3,710.00 Roxbury
Salt Building Emergency Repair estimate to $9,061.00 to receive payment
for additional services performed and materials ordered by E &A; and
d. Department records contain a Purchase Order for emergency repairs at the
Roxbury Salt Building in the amount of $9,061.00.
116. Bolinger resigned from his position with the Department as a direct result of the
allegations levied against him.
a. Bolinger's effective resignation date with the Department was June 1, 2007.
117. During a sworn statement supplied to Commission investigators on April 29, 2009,
Bolinger stated the following:
a. Actual Change Orders were not required on FMD projects as long as no
additional costs were incurred as a result of any change /extra work
necessary.
b. Changes which occurred regarding FM3222 were permissible as the
changes were in the same basic scope as documented on the Purchase
Order.
c. Bolinger was requested by Clark Contractors and Ronald Inks, Assistant
County Manager District 12 -1, to utilize funds allocated to FM3222 even
though a second Husky could not be constructed.
1. Clark wanted the contract to be fulfilled instead of cancelled.
2. Inks wanted modifications made to existing buildings at the Dinnerbell
Stockpile.
aa. Inks was involved with discussions regarding the Dinnerbell
Stockpile with Bolinger.
bb. Bolinger initiated the discussions regarding possible
modifications.
3. Inks indicated that tools were needed at the 12- 0/12 -1 compound and
questioned if the tools could be purchased with any remaining
FM3222 funds.
Bolinger, 08 -020
Page 33
aa. Inks did not solicit or request any tools from Bolinger in
association with the FM3221 or FM3222.
1. Inks was aware of no need for an additional concrete
saw in District 12 -1 at that time.
2. Concrete saws were available at various Districts in 12-
0 at that time.
3. The Department has specific procedures in place
regarding obtaining tools (by lease or purchase) if the
need arises.
4. The concrete saw obtained was used by county employees and
Bolinger at District 12 -1.
aa. Utilization of a concrete saw at Department facilities does not
fall within Bolinger's job description.
5. The pressure washer was utilized to clean out the Truck Wash bay at
the District 12 -1 compound.
6. The air compressor pressure regulator was utilized at the Truck Wash
bay for the soaping process of the actual washing cycle.
aa. The compressor was not of the quick recovery type and the
pressure regulator burnt out.
d. Building materials supplied by E &A were obtained for the construction of a
smoking room at the District 11- 0/12 -0 compound.
1. Bolinger did not inform Christenson of his intention to build a smoking
room at the District 11- 0/12 -0 compound in 2007.
2. Bolinger did not inform the District Executive, any of the assistant
District Executives, or the 12 -1 County Maintenance Manager of his
intention to build a smoking room at the District 11- 0/12 -0 compound
in 2007.
e. Bolinger denied utilizing any of the tools obtained from Clark Contractors for
personal use.
f. Bolinger denied soliciting building materials from E &A for personal use.
118. Bolinger realized a private pecuniary benefit of approximately $4,701.52 as a result
of using the authority of his position as an RFA for the Facilities Management
Division to solicit items from contractors performing services under his responsibility
which were [not] required /needed for Department projects and of which Bolinger
took possession and /or maintained control over.
Description Amount
Power Tools from Clark Contractors $2,658.47
Building Materials from E &A $2,043.05
Total $4,701.52
Bolinger, 08 -020
Page 34
III. DISCUSSION:
Respondent Craig Bolinger (hereinafter also referred to as "Respondent,"
"Respondent Bolinger," and "Bolinger ") was employed as a Transportation Facilities
Administrator 111 with the Pennsylvania Department of Transportation ( "PennDOT ") from
October 2001 through June 1, 2007.
The allegation is that Respondent Bolinger violated Section 1103(a) of the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he, as a
Transportation Facilities Administrator 111, used the authority of his public position for a
private pecuniary benefit by directing that contractors for PennDOT provide personal items
to him at no cost at a time when he was reviewing and approving contracts for vendors
who provided him with items used for his personal purposes.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
We shall now summarize the relevant facts, which consist of the particular
averments of the Investigative Complaint that Respondent is deemed to have admitted.
From October 2001 through June 1, 2007, Respondent was employed by PennDOT
as a Transportation Facilities Administrator 111 ( "TFA 111") within PennDOT's Deputate of
Bolinger, 08 -020
Page 35
Administration, Bureau of Office Services, Facilities Management Division ( "FMD ").
Respondent was suspended from his position in April 2007 and ultimately resigned
effective June 1, 2007.
The Position Description for Respondent's former position as a TFA III defines the
position purpose as, "Supervises lower level Transportation Facility Administrators in the
planning and coordination of services associated with building design, maintenance,
construction, and repair for all facilities within the Southern Region, Districts 8, 9, 11, 12."
The Position Description includes, inter alia, the following duties and responsibilities:
(1) Assesses need and recommends prioritization of facility maintenance
and replacement projects within the region;
(2) Reviews and negotiates the annual and special budgetary
requirements for the region;
(3) Assists with the facilities division budget and insures all funding is
spent wisely and effectively;
(4) Insures contractor invoices are processed properly and timely for the
region's projects; and
(5) Reviews and evaluates the oversight provided by lower level
Transportation Facility Administrators during building design,
construction, maintenance, repair, relocation, and demolition projects.
See, Fact Finding 12.
As a TFA III, also known as a "Regional Facilities Manager" ( "RFA "), Respondent
was assigned oversight of the Southern Region of the Commonwealth, comprised of
Districts 8, 9, 11, and 12. Each District was overseen by a TFA I or II, also known as a
"District Facility Administrator" ( "DFA "). Jack Rice ( "Rice ") was the TFA assigned to
District 9. James Kirkpatrick ( "Kirkpatrick ") was the TFA assigned to Districts 11 and 12.
As an RFA, Respondent had the authority to approve projects submitted by DFAs.
Additionally, Respondent had the authority to approve all four year plans for projects to be
undertaken by the FMD in his region, prior to submission of the plans to the Division Chief.
Since at least October 24, 2001, PennDOT has invited contractors to respond to an
Invitation to Qualify ( "ITQ ") for facility reconstruction, renovation, and inspection services.
Contractors meeting the qualification requirements of the ITQ are added to PennDOT's list
of approved contractors and have the opportunity to bid on projects that require
competitive bidding. Contractors that perform poor work, do not provide services on time,
or engage in other unacceptable conduct are to be entered into the Commonwealth's
"Contractor Responsibility Program." Entry into the Contractor Responsibility Program
may be considered in determining whether to exclude a contractor from award of
assignments under the ITQ and may lead to termination of a contractor's contract.
For non - emergency work/repairs under the jurisdiction of the FMD that require
bidding, contractors submit bids to Purchasing Agents at PennDOT's Bureau of Office
Services. Bids are reviewed by at least two Purchasing Agents, and the low bidder for the
project is determined. After the low bidder provides various required documentation to
PennDOT, a Purchasing Agent issues a Notice to Proceed to the selected contractor. The
Notice to Proceed is the actual purchase order for the project. No work is to begin on the
project until the Notice to Proceed has been approved and issued. No contractor can be
paid for work completed without an approved purchase order.
Bolinger, 08 -020
Page 36
Procedures for emergency work/repairs under the jurisdiction of the FMD are set
forth at Fact Findings 39 -39b. Such procedures similarly require the issuance of a Notice
to Proceed /purchase order before a contractor may be paid.
PennDOT maintains facilities known as "stockpiles" throughout the Commonwealth.
A stockpile may include an employee staging area, a materials storage area, parking
sheds for vehicles, and a storage area for equipment and tools.
On January 25, 2005, PennDOT issued to various ITQ qualified vendors project
packets that included an invitation to bid regarding Facilities Project FM3221 and FM3222.
Project information /specifications provided in the bid package specifically documented the
construction of salt buildings (also known as Huskies) for Stockpile 22 located in
Searights, Fayette County, Pennsylvania. The projects were to be constructed between
July 1, 2005, and December 1, 2005, depending upon the completion of site excavation.
Kirkpatrick was identified as the PennDOT contact on each invitation to bid.
In April 2005, purchase orders for both project numbers were issued to Clark
Contractors, Inc. ( "Clark Contractors "), a general construction company located in Bedford,
Pennsylvania. Purchase Order 4500215054 dated April 4, 2005, in association with
FM3221 was approved and awarded to Clark Contractors in the amount of $30,555.00.
Purchase Order 4500217069 dated April 12, 2005, in association with FM3222 was
approved and awarded to Clark Contractors in the amount of $29,200.00.
Both of the aforesaid projects were "Design Build" projects. Design build projects
are those in which PennDOT provides the contractor with project specifications, and the
contractor is responsible for designing the project. The ultimate design is submitted to the
DFA for approval upon completion.
Pursuant to the ITQ that was in effect in 2005, any change in a project location
required that the project be cancelled and re -bid. Additionally, the bid packages issued for
FM3221 and FM3222 specifically provided, "There will be no change orders on this
project."
Due to the fact that the new site for Stockpile 22 was not ready for construction,
Respondent approached Ronald Inks ( "Inks "), Assistant County Manager of District 12 -1,
sometime after April 5, 2005, and asked Inks if a salt storage building could be utilized at
Stockpile 21 located in Dinnerbell, Pennsylvania. Respondent also discussed with Inks
additional modifications to Stockpile 21.
After verifying that a new salt storage building and other modifications could be
utilized at the Dinnerbell Stockpile 21, Respondent then contacted Clark Contractors
representative /estimator Clair Corle ( "Corle ") via telephone regarding FM3221 and
FM3222. Respondent informed Corle that the new Searights site was not ready.
Respondent asked Corle if he had any objection to constructing one salt storage building
and completing other renovations at the Dinnerbell Stockpile instead. The scope of
FM3221 did not change although the documented location did. Both the documented
scope and location of FM3222 changed. Corle did not object to the change in location for
FM3221 or the change in scope and location for FM3222. However, as noted above, the
bid packages for these "Design Build" projects did not permit change orders.
Respondent confirmed the changes in scope to FM3222 via a fax issued to Corle
after April 12, 2005. The scope of work was changed to include electrical service /lighting
to an existing high arch salt storage building, lighting and installation of a truck plow pad in
an existing three bay salt storage building (to be converted to truck parking), and
installation of truck heaters. Respondent's fax also required Clark to provide specified
brands of an air compressor, pressure washer, and concrete saw. This equipment was not
necessary for any aspect of the project.
Bolinger, 08 -020
Page 37
Respondent and Corle spoke several times regarding the changes. By Respondent
agreeing to accept less expensive brand names of equipment than those he had originally
specified, Clark Contractors was able to complete the project at the initial $29,200.00
quote.
Respondent authorized the project to proceed. By authorizing the project to
continue without re -bid, Respondent was able to keep the tools /equipment hidden in the
pricing for the project.
The work performed by Clark Contractors included addition of electrical service and
lighting to existing structures, installation of a truck plow pad, and installation of truck
heaters at the Dinnerbell Stockpile location along with the purchase of equipment
ultimately provided to Respondent by Clark Contractors.
Clark Contractors representative Dick Clark purchased the tools requested by
Respondent at an approximate total cost of $2,658.47. The tools were transported to Clark
Contractors' main office in Bedford, Pennsylvania. Corle contacted Respondent by
telephone after obtaining the required equipment and completing work at the Dinnerbell
Stockpile. Respondent advised Corle that he would pick up the items at Clark's facility.
Using Respondent's Commonwealth provided vehicle, Respondent and Kirkpatrick
drove to Bedford, Pennsylvania, between October and November 2005 and took
possession of the equipment from Clark Contractors. Although Respondent and
Kirkpatrick returned to their field office with the equipment, the equipment was not
unloaded from Respondent's vehicle. The tools were not provided to any PennDOT
personnel for custody or inventory purposes. Respondent did not specifically notify or
inform anyone at Engineering District 12 -0 or at Maintenance District 12 -1 of the
equipment that had been obtained. No records could be located at Engineering District
12 -0 or at Maintenance District 12 -1 documenting the delivery or receipt of the equipment
by anyone at PennDOT.
Clark Contractors submitted an invoice dated October 25, 2005, to the PennDOT
Comptroller's Office for payment in the amount of $30,555.00 for services performed in
association with FM3221. The invoice description referenced "PO #: 4500215054 Project
FM3221 36'x45' Storage Building."
Clark Contractors submitted an invoice dated November 9, 2005, to the PennDOT
Comptroller's Office for payment in the amount of $29,200.00 for services performed in
association with FM3222. The invoice was inaccurate and referenced completion of the
original scope of work at the original approved location and not actual services performed.
Clark Contractors submitted the inaccurate invoice to the PennDOT Comptroller's Office
at Respondent's direction.
The aforesaid invoices submitted by Clark Contractors did not identify the pressure
washer, concrete saw, and air compressor received by Respondent.
Clark Contractors received payment for services under FM3221 and FM3222 in the
original bid amounts of $30,555.00 and $29,200.00 respectively. Payment received by
Clark Contractors included payment for the equipment that Respondent and Kirkpatrick
took possession of from Clark Contractors.
Inventories for Engineering District 12 -0 and Maintenance Districts 12 -1, 12 -2, 12 -4,
and 12 -5 were completed by PennDOT personnel for 2005 -2006, 2006 -2007, and 2007-
2008. None of the inventories mentioned or documented the presence of the concrete
saw, air compressor, or pressure washer obtained by Respondent and Kirkpatrick from
Clark Contractors. These tools /equipment were not delivered to PennDOT by Respondent
Bolinger, 08 -020
Page 38
until after complaints were received by PennDOT regarding Respondent's conduct. The
appearance of the tools indicated that they had been used prior to Respondent delivering
the items to PennDOT.
In addition to the above, on or about March 21, 2007, Respondent generated an
Emergency Procurement Approval Request for repairs to the salt storage building at
Stockpile No. 9 in Engineering District No. 9, Maintenance District 9 -7. Stockpile No. 9 is
commonly referred to as the "Roxbury Stockpile." Respondent estimated the dollar value
of the procurement at $15,000.00.
On March 22, 2007, Respondent received authorization to proceed with the repairs.
The project was assigned FM Number 4938.
Respondent compiled a scope of work for the required repairs, which noted the
following repair services to be performed: (1) repair of damaged trusses; (2) replacement
of structural gable trusses; (3) replacement of roofing system where damaged; (4)
replacement of shifted posts restoring concrete footings; (5) installation of T1 -11 and
painting of gable area; (6) installation of bracing; and (7) removal of all debris.
PennDOT procedures for emergency work/repairs required solicitation of bids from
at least three qualified contractors. Respondent supplied the scope of work to three
vendors -- specifically, E &A Contracting, Inc. ( "E &A "), Swede Construction Corporation, and
Vince Building Company, Inc. - -for bidding consideration. The only bid received by
PennDOT for the repair project was from E &A.
The initial bid submitted by E &A for repair of the salt storage building at the Roxbury
Stockpile was dated March 22, 2007, and was in the amount of $3,710.00. The bid was
generated by Jeff Weicht, President of E &A. The bid was received and reviewed by
Respondent.
After reviewing E &A's bid, Respondent contacted Weicht via facsimile transmission
for purposes of altering the bid amount. Respondent's faxed correspondence to Weicht
occurred between March 22, 2007, and April 9, 2007. Respondent directed Weicht to
increase the bid amount to $9,061.00 in order to include compensation to E &A for services
previously performed at Respondent's and /or Kirkpatrick's request that were beyond the
scope of services originally contracted. Additionally, Respondent requested that Weicht
include in the bid amount certain materials that were not related to any PennDOT project.
These materials consisted of two "ReliaBilt" Patio Doors and certain specified quantities
and sizes of treated lumber.
Following a discussion with Weicht, Respondent completed a Summary of Bids
report for FM4938, falsely entering Rice's name as a witness to the bid opening, and
forwarded the information to the FMD Central office in Harrisburg for processing. E &A's
bid was documented as $9,061.00. Respondent did not inform the FMD Central Office that
the bid included amounts completely unrelated to the emergency project.
E &A was awarded the contract for FM4938 for emergency repairs to the salt shed at
the Roxbury Stockpile. E &A completed the required repairs on or about April 9, 2007. The
actual cost for the repairs to the Roxbury site was $3,710.00.
On April 9, 2007, E &A provided to Respondent Invoice Number 1044 in the amount
of $9,061.00 for payment. The invoice description notes only "EPS Roxbury." Included in
the price were building supplies in the amount of $2,043.05 for which no project was
authorized. Although the building supplies totaled $2,043.05, Respondent arranged
payment to E &A for materials in the amount of $2,500.00. E &A submitted the invoice in
the amount of $9,061.00 per Respondent's direction.
Bolinger, 08 -020
Page 39
On April 9, 2007, Respondent faxed the FM4938 project file, including the invoice
received, to FMD purchasing agents in the Central Office for processing for payment to E
& A. Respondent indicated on the cover letter that Rice needed a miscellaneous Purchase
Order for the project. A Purchase Order was needed in order to issue payment to E &A.
On April 13, 2007, PennDOT issued Purchase Order No. 4300003966 in the
amount of $9,061.00 to E &A. The Purchase Order effective date and issue date are both
documented as April 13, 2007. The Purchase Order did not authorize payment for any
prior services of E &A and /or services outside the scope of the emergency repairs.
On July 5, 2007, E &A received payment from the Commonwealth of Pennsylvania
for Invoice Number 1044 issued for FM4938. The payment included the materials totaling
$2,043.05 that were unrelated to the project.
On April 10, 2007, in accordance with Respondent's direction, Weicht
ordered /purchased the building materials solicited by Respondent in the total amount of
$2,043.05, as detailed at Fact Finding 100. The total cost was for two French Doors, fifty
2x6x12 pieces of treated lumber, fifty 2x4x10 pieces of treated lumber, twenty 4x4x10
#2.40 pieces of treated lumber, and a delivery fee of $65.00. The purchase of the
aforesaid building materials occurred after the repairs to the salt storage shed at the
Roxbury Stockpile had been completed. The materials were not purchased in association
with any FMD project scheduled to occur in the Commonwealth.
The materials were delivered to the Engineering District 11- 0/12 -0 office location on
April 16, 2007. The delivery instructions on the delivery invoice document were: "PA.
DEPT OF TRANSPORTATION- ATTENTION -CRAIG BOLINGER." The building materials
were unloaded by PennDOT employees and placed in a storage building identified as the
"Dead Storage Building," for which Respondent had keys.
At the time the materials were delivered, PennDOT had received complaints
regarding Respondent's conduct, which culminated in Respondent's suspension in April
2007. At the request of PennDOT, the Pennsylvania Office of the Inspector General
( "OIG ") conducted investigations of Respondent and Kirkpatrick, as detailed at Fact
Findings 112 -115. Respondent was unable to take possession of the aforesaid materials
stored in the Dead Storage Building.
Per admitted Finding 109, Respondent realized a private pecuniary benefit of
approximately $2,043.05 when he solicited E &A to purchase building materials outside the
scope of FM4938 via his authority as an RFA, to have the building materials delivered to
the Engineering District 11- 0/12 -0 compound, and to have the building materials stored in
the Dead Storage Building when the materials were ultimately paid for by PennDOT via
payment to E &A for FM4938.
During a sworn statement supplied to Commission investigators on April 29, 2009,
Respondent stated, inter alia, that: (1) actual Change Orders were not required on FMD
projects as long as no additional costs were incurred as a result of any change /extra work
necessary; (2) changes which occurred regarding FM3222 were permissible as they were
within the same basic scope documented on the Purchase Order; (3) Respondent was
requested by Clark Contractors and Inks to utilize funds allocated to FM3222 even though
a second Husky could not be constructed; (4) Inks indicated that tools were needed at the
12- 0/12 -1 compound and asked if the tools could be purchased with any remaining
FM3222 funds; (5) the concrete saw obtained was used by county employees and
Respondent at District 12 -1; (6) the pressure washer was utilized to clean out the Truck
Wash bay at the District 12 -1 compound; (7) the air compressor pressure regulator was
utilized at the Truck Wash bay for the soaping process of the washing cycle; and (8)
building materials supplied by E &A were obtained for construction of a smoking room at
the District 11- 0/12 -0 compound. Respondent denied utilizing any of the tools obtained
Bolinger, 08 -020
Page 40
from Clark Contractors for personal use. Respondent denied soliciting building materials
from E &A for personal use.
Per admitted Fact Finding 118, Respondent realized a private pecuniary benefit of
approximately $4,701.52 as a result of using the authority of his position as an RFAforthe
FMD to solicit items from contractors performing services under his responsibility which
were not required /needed for PennDOT projects and of which Respondent took
possession and /or maintained control, calculated as the sum of the following: (1) the
power tools from Clark Contractors valued at $2,658.47; and (2) the building materials from
E &A that cost $2,043.05.
Having summarized the above relevant facts, we note that in Respondent's Answer
to the Investigative Complaint, Respondent asserted: (1) that Corle of Clark Contractors
lied about Respondent for reasons including that Clark Contractors was about to be placed
in the Contractor Responsibility Program; (2) that Respondent never removed from
PennDOT property the concrete saw, air compressor, and pressure washer in question,
and that Respondent never utilized that equipment for personal use; (3) that the French
patio doors and treated lumber in question were purchased to construct a smoking gazebo
and never left PennDOT property; and (4) that the FMD routinely performed change orders
involving locations, scope and the like with no financial change. These assertions do not
form the basis of any findings because they were not proven.
We must now determine whether the actions of Respondent violated Section
1103(a) of the Ethics Act. As we apply the facts to the allegations, due process requires
that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (Pa.
Commw. Ct. 1991). A violation of the Ethics Act must be based upon clear and convincing
proof. 65 Pa.C.S. § 1108(g). Clear and convincing proof is "so `clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d
88, 91 (1998) (Citation omitted).
We initially determine that as a Transportation Facilities Administrator III for
PennDOT from October 2001 through June 1, 2007, Respondent was a public employee
subject to the provisions of the Ethics Act. This conclusion is based upon the job duties
set forth in the Fact Findings, which indicate clearly that Respondent had the
power /authority to take or recommend official action of a non - ministerial nature with
respect to activities where the official action had an economic impact that was greater than
de minimis on the interests of another person. For example, Respondent had the
power /authority to: (1) supervise lower level Transportation Facility Administrators in the
planning and coordination of services associated with building design, maintenance,
construction, and repair for all facilities within the Southern Region, Districts 8, 9, 11, and
12, of PennDOT; (2) assess need and recommend prioritization of facility maintenance and
replacement projects within the region; (3) assist with the facilities division budget and
insure that all funding was spent wisely and effectively; and (4) insure that contractor
invoices were processed properly and timely for the region's projects. As an RFA,
Respondent had the authority to approve projects submitted by DFAs. Additionally,
Respondent had the authority to approve all four year plans for projects to be undertaken
by the FMD in his region, prior to submission of the plans to the Division Chief. Therefore,
Respondent was a "public employee" subject to the Ethics Act, and he was subject to the
restrictions of Section 1103(a) of the Ethics Act.
Based upon the particular factual averments of the Investigative Complaint that
Respondent is deemed to have admitted, the necessary conclusion is that Respondent
violated Section 1103(a) of the Ethics Act when he used the authority of his public position
for a private pecuniary benefit by directing that contractors for PennDOT provide personal
items to him at no cost at a time when he was reviewing or approving contracts for such
vendors.
Bolinger, 08 -020
Page 41
With regard to FM3221 and FM3222, but for being in his public position,
Respondent would not have been in a position to change the location and the nature of
part of the work to be performed by Clark Contractors to allow for the inclusion in the
contract price of an air compressor, pressure washer, and concrete saw that were not
necessary for any aspect of the project and that Respondent did not turn over to PennDOT
until after complaints were filed with PennDOT regarding Respondent.
Respondent specifically used the authority of his public position: (1) when he
approached Inks, Assistant County Manager of District 12 -1, sometime after April 5, 2005,
and asked Inks if a salt storage building could be utilized at Stockpile 21; (2) when he
discussed with Inks additional modifications to Stockpile 21; (3) when he contacted Corle
of Clark Contractors and asked Corle if he had any objection to constructing one salt
storage building and completing other renovations at the Dinnerbell Stockpile instead of
performing the contracted work at the Searights stockpile; (4) when he issued a fax to
Corle after April 12, 2005, confirming the changes in scope to FM3222 and requiring Clark
to provide specified brands of an air compressor, pressure washer, and concrete saw; (5)
when he agreed to accept less expensive brands of the aforesaid equipment to keep the
project at the amount initially quoted; (6) when he authorized the project to proceed without
re -bid, enabling the tools /equipment to be hidden in the pricing for the project; (7) when he
used his Commonwealth provided vehicle to pick up the tools /equipment from Clark
Contractors and maintained possession of the tools /equipment; and (8) when he directed
Clark Contractors to submit to PennDOT an inaccurate invoice that referenced completion
of the original scope of work at the original approved location and not actual services
performed or tools /equipment provided to Respondent.
With regard to FM4938, but for being in his public position, Respondent would not
have been in a position to effectuate an increase to the contractor's bid to include
materials that were not needed for the emergency repairs to the Roxbury Stockpile salt
storage building or for any other FMD project.
Respondent specifically used the authority of his public position: (1) when on or
about March 21, 2007, he generated an Emergency Procurement Approval Request for
repairs at the Roxbury Stockpile and estimated the dollar value of the procurement at
$15,000.00; (2) when he compiled a scope of work for the required repairs; (3) when he
contacted Weicht, President of the successful bidder, E &A, and asked him to increase his
bid from $3,710.00 to $9,061.00 to include compensation to E &A for services previously
performed at Respondent's and /or Kirkpatrick's request that were beyond the scope of
services originally contracted, and to include materials (two patio doors and various
quantities and sizes of treated lumber) that were not related to any PennDOT project; (4)
when he completed a Summary of Bids report for FM4938 that documented E &A's bid as
$9,061.00, falsely entered Rice's name as a witness to the bid opening, and forwarded the
information to the FMD Central office for processing; (5) when he directed E &A to submit
an invoice in the amount of $9,061.00; and (6) when he faxed the FM4938 project file,
including the invoice received, to FMD purchasing agents in the Central Office for
processing and indicated that Rice needed a miscellaneous Purchase Order for the
project.
Per admitted Fact Finding 118, Respondent realized a private pecuniary benefit of
approximately $4,701.52 as a result of using the authority of his position as an RFAforthe
FMD to solicit items from contractors performing services under his responsibility which
were not required /needed for PennDOT projects and of which Respondent took
possession and /or maintained control, calculated as the sum of the following: (1) the
power tools from Clark Contractors valued at $2,658.47; and (2) the building materials from
E &A that cost $2,043.05.
With each element of a violation of Section 1103(a) established, we hold that
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Page 42
Respondent violated Section 1103(a) of the Ethics Act when he used the authority of his
public position for a private pecuniary benefit by directing that contractors for PennDOT
provide personal items to him at no cost at a time when he was reviewing or approving
contracts for such vendors.
The Investigative Division is seeking an Order directing Respondent to pay
restitution. Position Statement of the Investigative Division, at 4.
Section 1107(13) of the Ethics Act empowers this Commission to require the
payment of restitution in instances where a public official /public employee has obtained a
financial gain in violation of the Ethics Act. Based upon the totality of the facts and
circumstances, we determine that restitution is warranted as to the private pecuniary
benefit in the amount of $2,658.47 that Respondent realized from the power tools provided
by Clark Contractors. Accordingly, Respondent is directed to make payment of restitution
in the amount of $2,658.47 payable to the Commonwealth of Pennsylvania and forwarded
to this Commission by no later than the thirtieth (30 day after the mailing date of this
adjudication and Order.
Non - compliance will result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. As a Transportation Facilities Administrator III with the Pennsylvania Department of
Transportation ( "PennDOT ") from October 2001 through June 1, 2007, Respondent
Craig Bolinger ( "Bolinger ") was a public employee subject to the provisions of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq.
2. Bolinger violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he
used the authority of his public position for a private pecuniary benefit by directing
that contractors for PennDOT provide personal items to him at no cost at a time
when he was reviewing or approving contracts for such vendors.
In Re: Craig Bolinger,
Respondent
File Docket: 08 -020
Date Decided: 7/8/09
Date Mailed: 7/10/09
ORDER NO. 1520
1 As a Transportation Facilities Administrator III with the Pennsylvania Department of
Transportation ( "PennDOT "), Respondent Craig Bolinger ( "Bolinger ") violated
Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1103(a), when he used the authority of his public position for a private
pecuniary benefit by directing that contractors for PennDOT provide personal items
to him at no cost at a time when he was reviewing or approving contracts for such
vendors.
2. Bolinger is directed to make payment of restitution in the amount of $2,658.47,
payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania
State Ethics Commission by no later than the thirtieth (30 day after the mailing
date of this Order.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair