A project to build a new sports medicine complex on Western Kentucky University’s campus continued to be met with scrutiny Friday after Western Kentucky Orthopaedic and Neurosurgical Associates filed a second protest against the project. 

Jonathan Miller, an attorney representing WKONA, said there are still issues even though WKU recently agreed to follow the advice of state lawmakers reviewing the project and issue a request for proposals. 

“Unfortunately, after we read the RFP, it really is basically the same project nearly line for line,” he said Friday morning in an interview with the Daily News. He filed the second protest Friday afternoon. “This is, we believe, simply an attempt to formalize something that has already been agreed to under the guise of competitive procedures, which really undermines the whole process of procurement.” 

The Daily News contacted WKU attorney Deborah Wilkins via email to ask for a response to the protest. Wilkins sent a letter from the Kentucky Finance and Administration Cabinet rejecting a previous protest letter filed by WKONA. She also said in an email that WKU is moving forward with the RFP process. 

The newspaper also contacted The Medical Center for a response to the protest. Doris Thomas, vice president of marketing and development with the Medical Center, gave a statement by email. 

“The Letter of Intent that we originally entered into with WKU was in full compliance with all state and federal laws. We would anticipate that any bid we would submit would be in full compliance with all state and federal laws,” Thomas said in the statement. 

Miller filed a protest on WKONA’s behalf last month criticizing an agreement between WKU and The Medical Center to build a $22 million sports medicine complex. That protest cited violations of regulations and procurement laws and took issue with other agreements included in the deal, such as incentives for employees to use The Medical Center for their health care. 

WKU President Gary Ransdell said at the time that the protest was merely an effort to delay the project. Ann Mead, senior vice president of Finance and Administration, said officials saw no basis for bidding the project. Ransdell later defended the deal before the state’s Capital Projects and Bond Oversight Committee and said the project initially started off as a gift discussion, which doesn’t fall within the bidding process. 

After the project was tabled by state lawmakers last month, WKU spokesman Bob Skipper announced in a statement that WKU would be bidding the overall project “and all aspects it entails.” 

“We were encouraged by the fact that the letter of intent with the Medical Center was withdrawn and the administration pledged to do it according to procurement rules this time,” Miller said.

But Miller said WKU isn’t going far enough. 

“This is … an attempt to formalize something that has already been agreed to under the guise of competitive procedures, which really undermines the whole process of procurement,” Miller said. “The RFP was issued a week after the letter of intent was withdrawn and folks only have till November 1 to respond and this is a very complex project with several contracts within it. It really is impossible for anybody that hasn’t already put the whole plan together to come up with a competitive bid by November 1. So again we would expect the only potential bidder to be The Medical Center and we would expect to be under, if not the same, nearly the same terms as the letter of intent.”

The protest uses side-by-side comparisons of passages from the original letter of intent with The Medical Center and the RFP to make the case the that RFP was tailored to the Medical Center instead of competitively bid. 

The letter of intent reads that “Medical Center agrees to construct, at Medical Center’s expense, an approximate 140,000 square foot building (facility) on WKU’s campus adjacent to the existing WKU football stadium … The total footprint of the land upon which the building will be constructed equals approximately 2.52 acres.” 

The RFP requires the bidder to be responsible for all costs of building and equipping a sports medicine complex “located on 2.57 acres in the WKU main campus between the Football Stadium and Baseball Field” and requiring the facility to be “140,000 square foot or larger fully equipped facility.”

The bigger problem, Miller contended, is that there are several contracts within one agreement and that’s against the interests of taxpayers, students, faculty and staff. Miller said it creates an opportunity for The Medical Center to monopolize health care in the area. 

“There’s (going to) be not only ultimately higher costs, but fewer choices, less innovation and so we think it’s completely against the interest of taxpayers,” he said, adding federal anti-trust and kick back laws could involved too. 

Miller disagreed with assurances he said have been made by the WKU administration that deal won’t affect health care choices of students, faculty and staff.

“That’s just directly contradictory to giving someone an exclusive relationship,” he said. 

In the original agreement was approved Aug. 19 by WKU’s Board of Regents. In exchange for building the complex, WKU would have leased the land to Med Center Health for 99 years at $1 per year. WKU had planned to pay all operating expenses for space it used in the building, while Med Center Health would have paid maintenance and operation for its own space. 

After receiving WKONA’s protest letter in September, Kentucky’s Finance and Administration Cabinet denied, effectively saying the protest was moot because WKU agreed to bid agreements in the original letter of intent. 

Miller, who was secretary of the cabinet eight years, ago said WKONA will have another opportunity to weigh in on the project. 

“In our perfect world, Western Kentucky withdraws this and then comes out with some plans to bring in stakeholders to figure out the best approach,” he said. 

Miller echoed many of the points argued in the letter, which generally contends WKU the RFP to The Medical Center and that awarding the contract under the RFP may violate federal anti-trust and kickback laws. 

“WKONA does not oppose the construction of a sports facility,” the protest said. “That said, WKONA is more passionate about the health, safety and security of WKU students, faculty, and staff in their pursuit of the highest quality health care at a reasonable cost. WKU cannot sacrifice the health care of its employees and students to pay for a Facility only to be utilized by WKU athletics and should not be permitted to proceed with procurement under this RFP.” 

— Follow education reporter Aaron Mudd on Twitter @BGDN_edbeat or visit bgdailynews.com.